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No, Andrew McCabe Did Not Commit Treason By Plotting to Remove Trump Using the Constitution


[image via Chip Somodevilla/Getty Images]There’s a new trend going on throughout social media concerning Andrew McCabe. The former FBI deputy director recently confirmed to 60 Minutes journalist Scott Pelley that discussions were held at the U.S. Department of Justice (DOJ) as to whether President Donald Trump could be constitutionally removed from office after he fired former FBI director James Comey. The response has been pretty out there, to say the least.

Trump supporters have interpreted McCabe’s admission of such discussions as evidence of treason–but that’s an entirely inappropriate and off-base take with absolutely zero legal or constitutional justification. Let’s explore the charges and how wrong they are.

“There were meetings at the Justice Department at which it was discussed whether the vice president and a majority of the cabinet could be brought together to remove the president of the United States under the 25th Amendment,” Pelley told CBS This Morning on Thursday. “These were the eight days from Comey’s firing to the point that Robert Mueller was appointed special counsel. And the highest levels of American law enforcement were trying to figure out what to do with the president.”

Pro-Trump Twitter personality Jacob Wohl quickly logged on to lead the treason charge.

“Andrew McCabe just admitted to Treason!” he tweeted. Many other Twitter users weighed in with similar takes–many hoping for violence of one sort or another to befall McCabe due to his admitted conspiring against Trump.

This couldn’t be further removed from reality.

In U.S. law, treason has an extremely limited legal definition. It is one of the few original crimes against the state listed in the U.S. Constitution. Located in Article III, Section 3, the relevant language reads:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, 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.

A different definition is codified at 18 U.S. Code § 2381. This additional definition adds a slight modification to the original language. It reads:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

Treason, therefore, must consist of either: (1) levying war against the United States; or (2) giving aid and comfort to enemies of the United States. So, what does that actually mean? Well, pretty much what it says. Levying war means actually engaging in armed conflict against the United States. Giving aid and comfort to enemies would require someone providing such help to a nation state subject to a formal declaration of war by Congress.

That’s it for treason. There’s literally nothing else that qualifies. The Constitution and federal law are both restrictive and surprisingly clear on this point.

What McCabe suggested he and others at DOJ took part in were discussions about removing President Trump via a method outlined in the Constitution itself. Such discussions are obviously and on their face not a form of war against the country. Nor are such discussions akin to aiding and comforting national enemies of the state. Andrew McCabe and his co-conspirators arguably were the state. There’s simply not much of an argument to take seriously and dissect here.

University of Texas Law Professor Steve Vladeck chided the new trend in ascribing treason in a legal analysis piece for NBC News almost exactly a year ago. No defender of Trump, Vladeck’s analysis was a timely reminder of what the law and Constitution actually say, and was directed at liberals who have jumped the gun by issuing baseless charges of treason against Trump over the Russia scandal.

“Treasonous acts may be criminal, but criminal acts are almost never treason,” Vladeck noted.

Let’s take that a bit farther and reiterate: McCabe’s discussions–however they might appear unseemly or untoward–were not even criminal. They were based on a method that is fully Constitutional. There’s simply no treason case to be made here.

[Image via Chip Somodevilla/Getty Images]

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