What Defines Treason? Calls for Mark Milley Firing Grow After Alleged China Phone Call

Former President Donald Trump and some Republican leaders believe that General Mark Milley committed treason if reports are true that he called his Chinese counterpart and said he'd give advance notice if Trump ordered a military strike against China.

If the allegations about Milley, the chairman of the Joint Chiefs of Staff, are true, did he commit treason—and what would that mean for him?

The U.S. Constitution defines treason as an American citizen "levying war" against the United States, "or in adhering to their enemies, giving them aid and comfort." Treason has historically only been applied during times of war when someone acts against the interest of the country.

The Constitution further states: "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."

The claim that Milley spoke on the phone with General Li Zuocheng of the People's Liberation Army comes from the upcoming book Peril by Bob Woodward and Robert Costa.

A new book claims General Mark Milley, the chairman of the Joint Chiefs of Staff, called his Chinese counterpart and pledged to warn him if then-President Trump planned to attack China. In this photo, Milley is seen at a press briefing at the Pentagon in Washington, D.C, on September 1, 2021. Getty

Woodward and Costa reported that Milley conversed with Li twice. The alleged first phone call came days before the 2020 U.S. presidential election on October 30. They claimed that Milley and Li spoke again on January 8, two days after the riots at the U.S. Capitol.

"General Li, you and I have known each other for now five years. If we're going to attack, I'm going to call you ahead of time. It's not going to be a surprise," the authors wrote that Milley told Li in one of their conversations.

The argument is that if Milley had made such a pledge to Li, he was aiding and comforting China and thus committing treason. Trump, for his part, has said that while that would constitute treason in his eyes, he is also doubtful of the legitimacy of the reporting by Woodward and Costa.

However, should Milley be proven to have made the promise to Li and eventually found guilty of treason, what would his punishment be?

The United States Code at 18 U.S.C. § 2381 states that anyone found guilty of treason "shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."

It should be noted that no person has been executed for treason by the federal government under the U.S. Constitution.

Treason charges in American history are also rare, and convictions are even rarer. Since the Constitution was ratified in 1789, there have been less than 40 federal prosecutions for treason. Perhaps the most famously cited case of treason involves Benedict Arnold, who was said to have had collaborated with the British during the American Revolutionary War. However, this occurred before the Constitution existed.

What would most likely happen to Milley should treason charges prove justified is that he would be fired or asked to step down from his position as chairman of the Joint Chiefs of Staff.

Retired Army Lt. Col. Alexander Vindman, a key witness in the Ukraine-focused impeachment proceedings against Trump, said if reports are true, Milley "usurped civilian authority, broke Chain of Command... [and] violated the sacrosanct principle of civilian control over the military," and should resign.

Meanwhile, Senator Rand Paul and Representative Marjorie Taylor Greene have said Milley should be court-martialed if the reporting is correct.