At former national security adviser Michael Flynn’s sentencing hearing on Tuesday, U.S. District Judge Emmet G. Sullivan asked federal prosecutors if they had considered charging Flynn with treason for advocating sanctions relief for Russia after failing to disclose his meetings with the Kremlin’s ambassador.
Sullivan, who made the comments while expressing outrage at Flynn’s crime of lying to the FBI, clarified soon after that he didn’t intend to accuse Flynn of treason and apologized. Sullivan walking back his remarks makes sense, since there isn’t really any legal grounds to charge Flynn with treason.
Although treason has become a common epithet ― which President Donald Trump has repeatedly used ― the legal definition in the Constitution is much more precise: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
Flynn’s connections with Russia wouldn’t fall under treason law simply because Russia is not technically an enemy of the United States, which the law narrowly defines as anyone that the U.S. is openly or declaratively at war with. A person can aid Russia to the detriment of the U.S. practically all they want, and though their actions may violate other laws, it would not be treason.
Anadolu Agency via Getty Images Former White House national security adviser Michael Flynn leaves a Federal Courthouse following a sentencing hearing in Washington, D.C. on Dec. 18, 2018.
But there is something Flynn did as national security adviser that does appear to have helped an enemy of the United States. After Flynn secretly received $530,000 in 2016 to represent Turkey’s interests, he vetoed a U.S. plan in early January 2017 to attack the Islamic State militant group-held city of Raqqa, Syria. As a result of his actions, McClatchy reported last year, the military operation to take back ISIS’s de facto capital was put on hold for months.
Delaying the offensive against Raqqa was in line with Turkey’s interests, as the Turkish government didn’t want the U.S. to increase support and arms for the Kurdish YPG militia group that would be on the frontlines of the anti-ISIS operation. Although Turkey is a NATO ally and not an enemy, helping ISIS is something that could fall under the part of treason law that deals with giving enemies “aid or comfort.”
But even if Flynn deciding to hold off on the Raqqa operation did help ISIS, legal experts say it’s still extremely unlikely that a treason case would hold up. Prosecutors would have to prove that it was directly Flynn’s intent to aid ISIS, rather than being just a byproduct of him supporting Turkish interests.
“It would be very hard to show that what Flynn fully intended to do was to help ISIS rather than help Turkey,” said Carlton F.W. Lawson, a law professor at UC Davis and expert on treason.
“Here you have an American general who is in the pocket of Turkey. The case that he is trying to help Turkey seems a lot easier to understand with those facts than some intent to help ISIS.”