Too Dumb for Treason?

Mueller has decided to punt on all of the main issues he was appointed to address, concluding (says A.G. Barr) the "investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities," including the two primary avenues by which Russia attempted to interfere with our 2016 election: social media spoofing and hacking Democratic Party emails. Apparently the obstruction of justice issue is too close to call--so Mueller doesn't decide. We probably shouldn't be surprised. See Ashcroft v. Iqbal, 556 U.S. 662 (2009).

But by what measure is this outcome possible? Let's step back from "conspiracy" and let's look a little closer to protections the Founders put directly into the Constitution to shield us from insidious plots to thwart our democracy: the Treason clause. "Treason against the United States[] shall consist ... [of] adhering to their Enemies, [or] giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." U.S. Const. art. III, sec. 3. 

Mueller--and the rest of the world--recognizes that Russia planned to disrupt our democratic process. Indeed, they succeeded in many ways. Any aid or help in that regard by a United States citizen would surely be an act of treason, no?  See Haupt v. United States, 330 U.S. 631 (1947).

To be fair, some have tried to say we're not at war with Russian, nor is Russia an enemy; those arguments, however, downplay the impact of the 2016 election interference to a degree that cannot be rationalized. Such arguments would lead to the conclusion that an individual who conspires with a foreign power to disrupt our Nation--to strike first--simply does not commit treason because we're not yet at war or we do not yet consider the country to be an enemy. But the Constitution was designed with exactly that in mind, given the need to protect this country's great experiment on the heels of declaring independence from another, entrenched, foreign government.

Okay, so all we need are two witnesses to an overt act... oh, yeah: "Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing ... I think you will probably be rewarded mightily by our press." -- Potential Defendant Trump a/k/a Unindicted Co-conspirator, July 2016. 

How many of us witnessed this overt act? There must be literally millions of witnesses. What are we, the People, missing? Maybe Mueller was unsure that Trump really understood there was someone out there listening. 

Nope: Michael Cohen testified, under oath, that Trump understood the degree to which Russia was backing him (and we've all seen the emails sent to Donnie Jr.). Indeed, Cohen explained that Trump knew that Wikileaks was going to begin pumping out stolen emails. We also know, from Mueller's investigation, that Russian intelligence did attempt to hack into Hillary Clinton's email servers around the same time--and even the same day.

What are we left with? A very flawed candidate asked a foreign power to release hacked emails to help his very slim prospects of winning a very flawed election, which coincided with that foreign power's anti-democratic campaign and attempts to fulfill the flawed candidate's request. Or, as respected former CIA Director Leon Panetta put it:

I find those kinds of statements to be totally outrageous because you’ve got now a presidential candidate who is, in fact, asking the Russians to engage in American politics. I just think that’s beyond the pale.

The only way out of this conclusion is if Treasonous Trump is, in fact, too mentally impaired to form the requisite intent to commit treason: is Trump too stupid to understand that asking a foreign government to engage in cyber-warfare is a bad idea? It is absolutely possible (and maybe even likely), but we should find out. As the Court explained in Haupt, the ultimate question of intent is for the jury: whether Defendant Trump possessed the intent to aid Russia in their efforts (or further inject them into our election process without regard for the consequences) or whether he possessed no intent by virtue of his ignorance.

If the federal government and prosecutors are not up to the task, then, luckily, many States have their own treason clauses.