Experts on constitutional law say lawmakers should be careful before throwing around words like “treason.”

Mark Zaid, a Washington, D.C. attorney who specializes in national security law, said that when he sees the term bandied about, it’s often being used for partisan political purposes — or the person simply doesn’t understand the legal issue.

“One, they’re partisan or uninformed about what the specific term actually means,” he said. “I think it’s dangerous to use this term; to so easily throw it about," he added. “It is a very narrow, significant crime that fortunately we see very few of.”

ADVERTISEMENT

Several Democrats have brought up treason in describing Donald Trump Jr.’s emails setting up a meeting with a Russian lawyer promising damaging information about Hillary Clinton Hillary Diane Rodham ClintonREAD: Cohen testimony alleges Trump knew Stone talked with WikiLeaks about DNC emails County GOP in Minnesota shares image comparing Sanders to Hitler Holder: 'Time to make the Electoral College a vestige of the past' MORE.

Sen. Tim Kaine Timothy (Tim) Michael KaineTrump claims Democrats ‘don’t mind executing babies after birth’ after blocked abortion bill Democrats block abortion bill in Senate Trump unleashing digital juggernaut ahead of 2020 MORE (D-Va.), Hillary Clinton’s running mate in last year’s election, on Tuesday said that Trump Jr.’s emails had moved the Russian investigation beyond obstruction of justices.

“The investigation — it's not, nothing is proven yet, but we're now beyond obstruction of justice in terms of what's being investigated,” he told reporters on Capitol Hill Tuesday.

“This is moving into perjury, false statements and even potentially treason,” Kaine said, when asked by CNN’s Manu Raju if he thought Trump Jr.’s actions could be considered treason.

Likewise, Rep. Seth Moulton (D-Mass.) took to Twitter to raise a similar concern. “If this isn’t treasonous, I’m not sure what is,” he wrote.

Eugene R. Fidell, who represents Bowe Bergdahl, the Army sergeant who faces court-martial on a charge of desertion and whom President Trump Donald John TrumpREAD: Cohen testimony alleges Trump knew Stone talked with WikiLeaks about DNC emails Trump urges North Korea to denuclearize ahead of summit Venezuela's Maduro says he fears 'bad' people around Trump MORE called a traitor deserving of execution on the campaign trail, said he has “a real allergy to casually tarring people as traitors.”

“I have the highest regard for Sen. [Tim] Kaine, but had he asked me I would have discouraged him from setting off in that direction, certainly based on what we currently know,” said Fidell, a lawyer who specializes in military law and teaches at Yale Law School.

Treason is a charge where a high and specific evidentiary standard must be proven. It requires testimony from two witnesses who participated in the crime or a confession from the accused in an open court.

“I think loose talk about treason is strongly to be discouraged,” Fidell continued. “It was wrong when President Trump did it when he was on the campaign trail and we’ve called him on it.

“What he did was outrageous and I think by the same token, labeling any other person the same way in the absence of evidence is one of the worst things that a person can do to an American citizen.”

Treason is the only crime specifically discussed in the U.S. Constitution, described as consisting “only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.”

The last actual conviction on charges of treason came in the years after World War II, when Tomoya Kawakita, a Japanese-American man accused of abusing U.S. prisoners of war in Japan, was found guilty and sentenced to death.

Also in the wake of the Second World War, Mildred Gillars, dubbed “Axis Sally,” was convicted of treason for her job as a radio broadcaster in Nazi Germany. She served 12 years of a 10-to-30-year prison sentence before being released on parole.

“Let’s save treason for who it is intended to be used against, which is absolutely traitors who betray our country generally in times of war,” Zaid said.

Some lawmakers have called Russia’s cyberattack on the U.S. election as an act of war, including Sen. John McCain John Sidney McCainGOP lobbyists worry Trump lags in K Street fundraising Mark Kelly kicks off Senate bid: ‘A mission to lift up hardworking Arizonans’ Gabbard hits back at Meghan McCain after fight over Assad MORE (R-Ariz.) and Rep. Jackie Speier (D-Calif.). But Congress does not yet have a clear characterization of what constitutes war in the cyberspace, and the Army’s top officer has cautioned against calling Russia’s meddling efforts “war.”

This isn’t to say that the Trump Jr.’s actions are not worth an investigation.

It’s possible Trump Jr. violated campaign finance laws and other federal statutes.

Federal campaign finance laws prohibit candidates or their campaigns from accepting anything of value from a foreign government. At issue is whether the information promised to Trump Jr. could be considered an illegal campaign contribution.

“I don’t see that it would have to be money,” John Shattuck, a senior fellow at Harvard’s Kennedy School of Government and a former senior State Department official, told The Hill. “I think it could be information that was uniquely gathered, and in this case it seems to be.”

Shattuck also stressed that treason is a very difficult crime to prove, and that the law remains relatively vague about such charges.

“Treason is not a well interpreted law. It comes directly from constitution; it’s embedded in the Constitution itself,” he said. “It’s very difficult to prove. You’d have to demonstrate someone is actually adhering to or giving aide or comfort to a country other than U.S.“

Zaid noted that treason charges have typically been levied during times of war. And while some lawmakers have accused Russia of engaging in an act of war by meddling in the 2016 election, he said that going after Trump Jr. or any other member of the president's campaign for treason would likely fall outside the realm of how such crimes have been prosecuted.

“It’s too complicated, too unique and too contrary to the history of what a treason case is,” Zaid said.

Daniel McLaughlin, an attorney based in New York and a contributor to the conservative National Review Online, argued that by defining treason in the Constitution, its framers – notably James Madison and Alexander Hamilton – had hoped to create a bulwark against government overreach.

In Federalist No. 43, McLaughlin wrote on Twitter, Madison wrote that the constitutional definition of treason is meant to protect against “factional witch hunts.”

Likewise, he wrote in a second tweet, Hamilton argued in Federalist No. 84 that the constitutional outline of treason stands as a protection of individual rights.

Accusations of treason have been hurled at members of both parties. Clinton, for example, faced efforts by some Republicans to label her a traitor for her use of a private email server during her tenure as secretary of state.

Rep. Mike McCaul (R-Texas), the chairman of the House Homeland Security Committee, pointed the finger at the former Democratic presidential candidate just days before the 2016 election, saying he considered her actions to be treason, because it was “very likely that foreign adversaries from other nations got into her private server.”