Still-unpunished crimes of the Russia hoax

OPINION:

Many articles lately have speculated about the criminal charges that could be brought against prominent Obamaites as a result of the Russia hoax. Many federal laws indeed prohibit the conduct they undertook in perpetrating the hoax, but one big problem will bar most of the prosecutions.

Of the myriad laws broken during the Russia hoax, a few are easily understood, such as lying to Congress and falsifying government records. Several are more complex, such as the law against violating a person’s civil rights. Still, all are simpler than the charge of treason, which a great number of people and pundits are throwing around without understanding.

Among the proofs from the many documents declassified by National Intelligence Director Tulsi Gabbard is that a 2016 “Intelligence Community Assessment” of Russian interference in the 2016 election was dead-bang wrong.

On May 23, 2017, CIA Director John O. Brennan testified to Congress that the so-called Steele dossier “wasn’t part of the corpus of intelligence information that we had. It was not in any way used as a basis for the Intelligence Community Assessment that was done.” However, Mr. Brennan and others, possibly including FBI Director James B. Comey, forced the addition of Steele dossier allegations into that assessment.

We remember that the Steele dossier was a compendium of false allegations that have been disproved seriatim.

Mr. Brennan clearly lied to Congress in his testimony. That violated 18 U.S. Code Section 1001, which prohibits false statements to government officials, and probably 18 U.S. Code Sections 1621 and 1623, which prohibit perjury and false statements under oath.

However, the problem with prosecuting Mr. Brennan for lying to Congress is the five-year statute of limitations, common to many federal crimes. It’s long past the time when Mr. Brennan could be prosecuted for lying to Congress in that instance.

That brings us to the prohibition of falsification of government records in 18 U.S. Code Section 1519. In numerous instances, government officials falsified documents related to the Russia hoax. We remember that the FBI falsified sworn statements to the U.S. Foreign Intelligence Surveillance Court in support of its application to surveil Carter Page, a Trump staffer. The 2016 Intelligence Community Assessment and too many FBI and CIA reports to be mentioned here also fall under that law.

Again, the statute of limitations is five years and bars such prosecutions.

Under 18 U.S. Code Section 242, no government official can, under color of law, deprive a person of his civil rights. One of those rights is to run for office, which, by the Russia hoax fraud, government officials tried to deny to President Trump. Again, the statute of limitations of five years bars any prosecution under Section 242.

This brings us to treason, the only crime defined in the Constitution.

Article 3, Section 3 of the Constitution defines the crime of treason. It says, “Treason against the United States shall consist only of levying War against them, or adhering to their Enemies, giving them aid or 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.”

Treason cases have no statute of limitations, and the penalty could be death.

A “constructive treason” would not rely on the evidence of two witnesses or a confession in open court. The Supreme Court has repeatedly rejected the concept of “constructive treason,” as it did in Ex Parte Bollman and United States v. Burr, both of which were decided in 1807.

In the Burr case, according to The Heritage Guide to the Constitution, Chief Justice John Marshall “again rejected the idea of constructive treason but did so by holding that Aaron Burr, if not physically present in an assemblage of men, could still be convicted of treason on the testimony of two witnesses that he actively helped effect or aid such assemblage, in effect aiding in the levying of war. Together, these cases made a treason conviction exceedingly difficult for anything other than manifest participation in a treasonable act.”

Other cases came out of World War II. In Haupt v. U.S., the high court’s first affirmation of a treason conviction, the court held that the evidence of two witnesses could be supported by other evidence of the accused’s treasonable intent, including out-of-court confessions or admissions.

It will, therefore, be exceptionally hard for anyone, including Mr. Brennan and former President Barack Obama, to be convicted of treason. Their out-of-court admissions will be balanced by other statements that could disprove treasonable intent.

Attorney General Pam Bondi is unlikely to approve prosecutions for treason, as is Mr. Trump. Because of the statutes of limitations and the unlikeliness of any treason convictions, the malefactors of the Russia hoax are probably going to get away scot-free.

• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and a contributing editor for The American Spectator.