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Is Donald J. Trump Going To Jail?

Is Donald J. Trump going to jail for treason for encouraging Russia to hack Hillary Rodham Clinton's e-mails? Probably not. But that does not mean that he is totally off the hook. 

Federal Law states that, "Whoever, owing allegiance to the United States...adheres to their enemies, giving them aid and comfort...is guilty of treason...and shall be incapable of holding any office under the United States." Today, Presidential candidate Donald J. Trump called for Russia to hack Presidential candidate and former Secretary of State Hillary Rodham Clinton's e-mail. As distasteful as his comments may have been, they likely did not constitute treason. But that does not mean that Mr. Trump is off the hook.

A person arguably gives aid and comfort to an enemy of the United States when he encourages others to engage in "attacks" on the United States. New York Times v. U.S. Dept. of Justice, 915 F.Supp.2d 508 (SDNY). This has included acts like doing radio broadcasts in support of Germany and Japan during WWII (D'Aquino v. U.S.; Gillars v. U.S.); holding discussion groups, while a POW in Korea, about the fact that the United States were illegal aggressors (U.S. v. Fleming, Court of Military Appeals); giving speeches in furtherance of a propaganda campaign against the U.S. (Chandler v. United States, 171 F.2d 921); and acting as an interpreter for a Japanese company that used American POWs as slave labor (U.S. v. Kawakita).

The first question is whether encouraging a foreign country to hack the e-mails of the former Secretary of State is encouraging an "attack" on the United States. A cyber-attack is defined as an attempt to damage, disrupt or gain unauthorized access to a computer. Using that definition, gaining illegal access to Ms. Clinton's e-mails are certainly a cyber-attack. Nor can it be doubted that Ms. Clinton, as the former Secretary of State and current Presidential candidate is rightfully considered the "United Stated" for the purposes of the treason statute. Otherwise, an attack on a defense contractor like Lockhead Martin to gain access to military secrets could not be considered an attack on the United States, which would be an absurd result. 

But it is not enough that Mr. Trump encouraged a foreign country to hack into Ms. Clinton's e-mail. The country must be an "enemy" of the United States. The treason statute does not define "enemy," but other Federal statutes do. For example, the Trading with the Enemies Act defines enemy as a country currently engaged in hostilities with the United States. No matter how belligerent Russia is currently acting, there is no colorable argument that the U.S. is engaged in hostilities with Russia.

Even if Mr. Trump did not commit treason, he is not totally off the hook. The Secretary of State is authorized to revoke the passport of a person whose "activities abroad are causing or are likely to cause serious damage to the national security or foreign policy of the United States. Code of Federal Regulations Section 51.62; Haig v. Agee, 101 S.Ct. 2766. It is not a stretch to conclude that encouraging Russia, a belligerent and aggressive country repeatedly at odds with the United States, to hack the e-mails of the former Secretary of State, and current Presidential candidate, causes serious damage to our national security and to the foreign policy of the United States. 

In the end, Donald Trump probably won't go to jail for treason. But if the State Department took his comments seriously, he might not be going anywhere else for a while too.

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Kimberly Summers was awarded Top Women Attorneys, Avvo Client’s Choice 2012, Super Lawyers Rising Stars 2013-15, and NACDA Top 10 2015. Douglas Schneider was awarded Super Lawyers Rising Stars 2013 - 2015.