President Trump believes that President Barack Obama committed treason, a crime that may be punishable by death. Seeking a distraction from his current political travails, Mr. Trump is attempting to relitigate the nearly decade-old controversy over Russian involvement in the 2016 election.
Mr. Trump is wrong on the facts and the law, and his sensational allegation serves only to demonstrate how completely he has degraded contemporary political discourse.
Mr. Trump denounced Mr. Obama after Tulsi Gabbard, the director of national intelligence, asked the Justice Department to investigate whether intelligence officials in the Obama administration faked evidence of Russian efforts to influence the 2016 election. When the question of who should be targeted in the investigation was posed at an Oval Office press availability, Mr. Trump said: “It would be President Obama. He started it. … This was treason. This was every word you can think of. They tried to steal the election. They tried to obfuscate the election. They did things that nobody’s ever even imagined, even in other countries.” Mr. Trump also mentioned former President Joe Biden, former F.B.I. Director James Comey, the former director of national intelligence James Clapper and former C.I.A. Director John Brennan as other possible defendants.
President Trump’s history of intemperate remarks has earned him a perverse kind of immunity; the more outrageous his statement, the faster it is often dismissed. But Mr. Trump doesn’t deserve this bloviator’s privilege. He’s not just the president, but, more to the point, he’s the overseer of an unusually compliant Justice Department, and his offhand condemnation of his predecessor is as significant as it is chilling.
Indeed, Mr. Trump made sure that the investigation of purported treason swiftly took on a life of its own. Attorney General Pam Bondi announced that a Justice Department “strike force” would investigate the allegations against Mr. Obama and the others, and a pair of Republican senators, Lindsey Graham and John Cornyn, have called for the appointment of a special counsel to lead the inquiry.
Treason is the only crime defined in the Constitution, and it’s set out there, in relevant part, as giving “aid and comfort” to our enemies. Regurgitating a claim that Mr. Trump and his allies have made for years, Ms. Gabbard said that President Obama, after Hillary Clinton was defeated by President Trump in the 2016 election, “directed the creation of an intelligence community assessment that they knew was false.”
Specifically, Ms. Gabbard cited talking points that were prepared for Mr. Clapper in 2016 that stated “foreign adversaries did not use cyberattacks on election infrastructure to alter the U.S. presidential election outcome.” In light of this, she said on social media, the Obama administration was “promoting the LIE that Vladimir Putin and the Russian government helped President Trump win the 2016 election.”
But neither President Obama nor his subordinates said that to help Mr. Trump’s campaign the Russians attacked election infrastructure, changing voting results and the like. Rather, as established by multiple investigations, Russian hackers attacked Hillary Clinton’s campaign by stealing and disseminating its emails. (No one knew this better than Mr. Trump himself, who frequently invoked the hacked emails during campaign rallies.)
Every investigation of the 2016 campaign, including the one by the Senate Intelligence Committee in 2018, reached the same conclusion. “We found irrefutable evidence of Russian meddling,” said then-Senator Marco Rubio, who is now, of course, Mr. Trump’s secretary of state. In other words, the conclusion of the Obama administration, far from being a crime, much less treason, was a simple statement of fact.
A spokesman for Mr. Obama aptly dismissed President Trump’s accusation as “ridiculous and a weak attempt at distraction.” But the accusation serves both Ms. Bondi and Mr. Trump’s political needs. The attorney general may be especially eager to please her boss because she’s on thin ice with him.
She has created a political crisis for Mr. Trump by mismanaging the disclosures about Jeffrey Epstein, the late pedophile and friend of the president’s. (In response to the demands of conspiracy theorists in Mr. Trump’s party, the attorney general, with some fanfare, first released a set of purportedly secret documents that were already public; then said, in effect, that there was nothing more to see; and then changed her mind and sought but did not secure the release of grand jury transcripts in the case.) What better way for Ms. Bondi to assist the president in changing the subject away from the Epstein files than to initiate a treason investigation of Mr. Obama?
The absurdity of this investigation is underlined, too, by the fact that Mr. Obama is almost certainly immune from prosecution — thanks to Mr. Trump and the Supreme Court. In its decision last year in Trump v. United States, the court held that there was a presumption that former presidents could not be prosecuted for any “official” conduct during their time in office. The preparation and dissemination of intelligence findings are certainly official functions of the presidency, and accordingly, they would be off limits as the bases for any criminal charges.
But pointing this out seems almost unfair to Mr. Obama; it suggests that he would escape prosecution only because of the lamentable technicality established by the Supreme Court in the Trump case. The more important reason is simpler: Mr. Obama committed no crime.
Over the years, Mr. Trump has said so many shocking things that it’s tempting to dismiss this one, too, with the familiar excuses: that, for example, the president should be taken seriously but not literally, or that this was just “Trump being Trump.” But the fact remains that the president of the United States said that a predecessor committed a crime for which he could be executed.
Even though a formal investigation is now underway, such a prosecution and sentence remain unlikely. But the invocation of the possibility by a president who put the prosecutorial process in motion suggests that the nation has moved to a never-before-seen era of malevolence and reprisal.
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Jeffrey Toobin is a former assistant U.S. attorney who writes about the intersection of law and politics. He is the author of “The Nine: Inside the Secret World of the Supreme Court,” “The Pardon: The Politics of Presidential Mercy” and other books.
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