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Did Donald Trump Commit Treason?

Searches of the word "treason" spiked 76% on Merriam-Webster's website after Trump's comments Wednesday about Russia and Hillary Clinton's e-mails.
Image: Republican presidential nominee Donald Trump speaks at a campaign rally in Scranton
Republican presidential nominee Donald Trump speaks at a campaign rally in Scranton, Penn., July 27.CARLO ALLEGRI / Reuters

According to Merriam-Webster, visits to its dictionary website to look up the word "treason" spiked 76 percent after Donald Trump's comments Wednesday about Russia and Hillary Clinton's emails.

"They probably have her 33,000 e-mails that she lost and deleted," he said. "If Russia or China or any other country has those emails, I mean, to be honest with you, I'd love to see them."

Many have wondered, if he was urging a foreign country to hack into the computers of a U.S. political candidate, was he committing a crime?

Related: Trump Urges Russia to Expose Clinton's Personal Email

Trump and his campaign have said he wasn't encouraging anyone to hack into anything, though he did say at one point Wednesday, "Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing."

There is, of course, nothing to hack into now. The server was decommissioned long ago. Trump seemed to be saying, if anyone did hack into it in the past and still has the e-mails it contained, turn them over.

But suppose he was urging a foreign government to hack a political candidate? Would that be a crime?

Treason is the only crime defined in the Constitution, consisting of levying war against the United States or "adhering to" to an enemy, which means giving aid and comfort.

"What Donald Trump said does not amount to treason," said Carlton Larson, a professor at the University of California at Davis School of Law and one of the nation's few experts on the law of treason.

For starters, he says, only a country or entity that has declared war or is in a state of open war constitutes an enemy, so Russia and China don't count. Second, Larson says, aid and comfort must be something material, not words of encouragement.

"Putting the interest of another country ahead of the United States, though a bad thing to do, is just not adhering to an enemy," he said.

Related: Donald Trump's Plea to Russian Hackers Roils the Campaign

Larson notes that Julius and Ethel Rosenberg, executed in 1953 after they were convicted on espionage charges for passing U.S. atomic bomb secrets to the Soviet Union, could not be charged with treason because the Soviets were not considered enemies under the treason provision.

No one has been convicted of treason in the US in nearly 70 years.

Some have wondered if Trump's statement amounts to the solicitation of a crime. But federal law requires using or threatening to use physical force to meet that definition.

A few legal scholars say that what Trump said might amount to conspiracy to commit computer fraud, which is defined as intentionally accessing a computer without authorization. But conspiracy requires an agreement.

Federal law does say that it's illegal to "counsel or induce" someone else to commit a crime, and a former federal prosecutor says Trump's statement "approaches the line."

But there's a world of difference between looking through the federal code book to find a possible fit and actually bringing charges. While many legal scholars and former prosecutors say Trump's statement, even if meant as a joke, was unwise, they say no prosecutor would charge someone with a crime for saying it.