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Did Trump and His Supporters Commit Treason?
By Jeannie Suk Gersen
https://t.ly/nij9n
For years, Carlton F. W. Larson, a treason scholar and law professor at
the University of California, Davis, has swatted away loose treason
accusations by both Donald Trump and his critics. Though the term is
popularly used to describe all kinds of political betrayals, the
Constitution defines treason as one of two distinct, specific acts:
�levying War� against the United States or �adhering to their Enemies,
giving them Aid and Comfort.� Colluding with Russia, a foreign adversary
but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening ISIS, is not treason, either�though that is
getting warmer. During Trump�s Presidency, Larson told me, his colleagues teased him by asking, �Is it treason yet?� He always said no. But the insurrection of January 6th changed his answer, at least with regard to
Trump�s followers who attacked the Capitol in an attempt to stop
Congress�s certification of the election. �It�s very clear that would have
been seen as �levying war,� � he said.
Both of Trump�s impeachments, in 2019 and 2021, were for �high crimes and misdemeanors,� but the Constitution also names treason as an offense for
which a President can be impeached. Individuals, including a former
President, may also be criminally punished for treason, perhaps the
highest offense in our legal system, carrying the possibility of the death penalty. Fearing abuse of treason charges, the Framers gave treason a
narrow definition and made it extremely difficult to prove.
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The Treason Clause dictates that a conviction can rest only �on the
Testimony of two Witnesses to the same overt Act, or on Confession in open Court.� Partly as a result, there have been around forty treason
prosecutions. No American has been executed for treason against the U.S., although Hipolito Salazar (a Mexican who officials thought was American)
was federally executed for treason during the Mexican-American War, and
some states have executed people for treason, including the abolitionist
John Brown.
Larson wrote in his book �On Treason: A Citizen�s Guide to the Law,� from
2020, that the Framers �had a very specific image in mind�men gathering
with guns, forming an army, and marching on the seat of government.� Few
events in American history, if any, have matched that description as
clearly as the insurrection of January 6th, which, court documents
suggest, was planned by milita members who may have intended to capture
elected officials. The American most associated with treason was one who
did not �levy war� but rather gave �aid and comfort� to the enemy:
Benedict Arnold. He at first fought heroically in the Revolutionary War
but then attempted to aid the British; he fled to the enemy when his
betrayal was discovered, and so was never punished. Treason prosecutions
for levying war were brought against some individuals who took part in the Whiskey Rebellion of 1794, in which armed men burned down a tax
collector�s house, and the Fries Rebellion of 1799, in which armed men
stormed a prison and forced the release of tax resisters. Both resulted in conviction followed by pardon. The Jefferson Administration prosecuted the former Vice-President Aaron Burr, in 1807, for allegedly conspiring with a group of armed men to overthrow the U.S. government in New Orleans, but he
was acquitted. In connection with that planned rebellion, the Supreme
Court held that a mere conspiracy to levy war does not count as actually levying war. Another treason case resulted from the Christiana Riot, in
which dozens of men fought the return of slaves to their owners as
required by the Fugitive Slave Act. Supreme Court Justice Robert Grier, presiding at trial (as Justices did in those days), held that �levying
war� had to involve an intent to overthrow the government or hinder the execution of law.
Southern secessionists who waged war against the United States were
treasonous under any reading of the Treason Clause�s �levying war�
standard. Jefferson Davis, the former U.S. senator turned President of the Confederacy, was indicted for treason in 1866. Before trial, however,
Chief Justice Salmon Chase made clear his view that the Fourteenth
Amendment, which had been ratified a few months earlier, precluded any
other treason penalties for Confederates. Section 3 of the amendment bars
from holding public office anyone who took an oath to support the
Constitution and then �engaged in insurrection against� or gave �aid or
comfort to the enemies� of the United States. Because of the Chief
Justice�s interpretation, President Andrew Johnson gave up on the
prosecution of Davis and granted amnesty to all former Confederates if
they swore an oath to defend the Constitution and the Union.
In the past century, federal treason prosecutions generally have been �aid
and comfort� cases. After the Second World War, a Japanese-American woman
named Iva Toguri D�Aquino, better known as Tokyo Rose, was convicted of
treason for broadcasting anti-American propaganda on Radio Tokyo; she was pardoned in 1977, after witnesses recanted. The poet Ezra Pound was
famously prosecuted for Fascist propaganda broadcasts on Italian radio;
the case was dropped in 1958, when he was found incompetent to stand
trial. During the Cold War, Julius and Ethel Rosenberg were convicted and executed for conspiracy to commit espionage, not treason; the Soviet Union
was not technically an enemy. After a half century of no federal treason
cases, the indictment of the Al Qaeda spokesman Adam Gadahn, in 2006, was
the first to concern giving aid and comfort to an enemy that was not a
nation. Had Gadahn ever been tried, the defense might have argued that a terrorist group such as Al Qaeda isn�t an enemy as envisioned in the
Treason Clause, though a federal district court assumed, in 2013, that it
was. Gadahn was killed in Pakistan in 2015, by a C.I.A. drone strike.
Since the Capitol insurrection, there has been little talk of treason
charges. Carlton Larson suggested that this was because �everybody now
tends to think of treason as mostly aiding foreign enemies.� In his book
�On Treason,� he even states that �levying war is arguably archaic, of
interest only to historians,� and that, in the twenty-first century,
�armed rebellions to overthrow the government are simply not going to
happen.� But, to the Framers, such an insurrection was a paradigmatic case
of treason. The founding-era Chief Justice John Marshall held in the
treason trial of Aaron Burr that levying war entails �the employment of
actual force� by �a warlike assemblage, carrying the appearance of force,
and in a situation to practice hostility.� If some of those who attacked
the Capitol assembled in order to incapacitate Congress�perhaps even by kidnapping or killing lawmakers�then their actions could be construed as
an attempt to overthrow the government, and federal prosecutors could
plausibly consider treason charges. As Larson put it, �At some point, you
have to say, if that�s not levying war against the United States, then
what on earth is?�
Video From The New Yorker
A Reporter�s Video from Inside the Capitol Siege
Last Tuesday, Mitch McConnell, who is now the Senate Minority Leader, said
that the attackers �tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did
not like,� offering a narrower purpose than government overthrow.
Investigators examining the emerging evidence on the scope of the plot
might disagree. Federal law also makes it a separate felony for anyone who
owes allegiance to the U.S. and knows of the commission of any treason to conceal it or not tell authorities. That vastly widens the net of those
who could potentially be charged, including friends, acquaintances, and co-workers of the attackers. (Since the attack, many such individuals
have, in fact, come forward to give information to law enforcement.)
The Treason Clause�s strict evidentiary rule of two witnesses to the act
makes it exceedingly difficult to convict anyone of treason, even with so
much conduct captured on video. But a treason case against Trump himself
might conceivably be built, if prosecutors could establish that he knew in advance that his supporters planned to violently assault the Capitol,
rather than peacefully protest; that he intended his speech urging them to �fight harder� to spur them to attack Congress imminently; and that he purposely didn�t do anything to stop the insurrection while it was unfolding�or, worse, intentionally contributed to a security failure that
led to the breach. Then Trump would have engaged in treason along with supporters who attempted, in his name, to overthrow the U.S. government.
At a minimum, it appears that Trump, along with top government officials,
was aware that his followers were planning acts of violence. Trump did, however, say, in the midst of his incendiary speech, �I know that everyone
here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.�
Short of treason, a related federal law prohibiting rebellion or
insurrection states that a person who incites �any rebellion or
insurrection against the authority of the United States or the laws
thereof, or gives aid or comfort thereto,� has committed a serious felony
and is disqualified from holding federal office. This description is
similar to the current article of impeachment against Trump: �for inciting violence against the Government of the United States.� If two-thirds of senators vote to convict Trump, a majority of the Senate could then vote
to bar him from future federal office. But a Senate conviction requires
the votes of at least seventeen Republicans and, so far, looks unlikely. A federal criminal conviction for inciting rebellion or insurrection may
offer an alternative route to disqualifying Trump from holding office.
For the time being, the government has indicted more than a hundred and
fifty people for crimes related to the insurrection, including unlawful
entry, disorderly conduct, theft, destruction of property, firearms
offenses, assault on police, conspiracy, obstruction of an official
proceeding, obstruction of justice, and even curfew violation. Ongoing investigations will likely produce more indictments. In addition to
potential homicide and terrorism charges, prosecutors have pledged to
pursue the charge of �seditious conspiracy.� That crime overlaps with but covers more than treason; federal law defines it as any conspiracy �to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law
of the United States, or by force to seize, take, or possess any property
of the United States.�
While federal prosecutors could charge some of the leaders of the riot
with treason, seditious conspiracy would be far easier to prove. It is
clear that the rioters� goal was, at a minimum, to delay Congress�s
legally mandated counting of electoral votes. Prosecutors would need to
prove that two or more people had agreed to undertake the seditious
conduct, but, with respect to the rioters who were explicit about their
aims and co�rdinated their actions, the evidence may well be sufficient, particularly given the violent result. More evidence might even enable
charges against individuals who conspired to attack the Capitol but didn�t
take part in the events. Some of those individuals might be elected
officials. Representative Mikie Sherrill, a Democrat of New Jersey, has
alleged that unnamed members of Congress �had groups coming through the
Capitol that I saw on January 5th, a reconnaissance for the next day.�
Soon afterward, the U.S. Government Accountability Office and the Capitol Police opened investigations into what roles members might have played in
the siege.
If evidence were to emerge that members of Congress intentionally aided or incited the attack, they may face criminal consequences. It�s more likely, however, that Republicans who amplified Trump�s election-fraud lies will
be sanctioned by their colleagues. Seven Democratic senators have filed an ethics complaint against the Republican Senators Ted Cruz, of Texas, and
Josh Hawley, of Missouri, who led the effort to overturn the election in Congress. Representative Cori Bush, a Democrat of Missouri, has introduced
a House resolution to investigate and potentially expel members of
Congress who challenged states� electoral votes. Bush said, in a tweet,
that they �incited this domestic terror attack through their attempts to overturn the election.� Mitch McConnell may agree. He has pointedly acknowledged that the mob was �provoked by the President and other
powerful people,� implying that fellow-lawmakers might bear
responsibility. But, whatever moral condemnation or political remedy is appropriate, criminal charges cannot be brought against congresspeople
such as Hawley and Cruz solely for using a legal process to challenge
electoral votes in Congress. It is unlikely that any Republican politician thought they�d succeed in overturning the election, and it may be hard to distinguish their moves in Congress, at least legally, from a few
Democrats� challenges to states� electoral votes in 2001, 2005, and 2017.
Even if Congress doesn�t censure or expel any of its members, the Senate declines to convict Trump, and federal prosecutors decline to bring
charges against any of them, Trump and lawmakers who tried to overturn the election could still be held accountable through Section 3 of the
Fourteenth Amendment, the same provision that was intended to prevent
former Confederates from holding office. If Trump and the officials tried
to run for office again, a lawsuit could claim that they �engaged in insurrection or rebellion� within the meaning of the Fourteenth Amendment,
and, if the evidence bears it out, some could be disqualified from holding office. But, apart from any of these remotely possible legal remedies, Republicans who helped foment the attack are facing political
repercussions: in the weeks since the riot, Hawley has had a fund-raiser
and a book contract cancelled, and Missouri�s two biggest newspapers have called for his resignation. But, alas, in our divided country, Republican officials who denounced the insurrection or voted to impeach Trump may
also face the ire of many Republican voters.
The past month has required both affirmation of the strength of our
democracy and recognition of its fragility. Laws against treason,
sedition, rebellion, and insurrection may seem obscure or arcane, but they
are on the books for those real instances in which the expression of
strong beliefs, which is constitutionally protected, crosses into actions
that fundamentally betray and threaten our government. In times of intense division, such actions pose more danger even as their meaning becomes more contestable. The deep split that cracked open during one of the most consequential transfers of power in history�which, as it turned out, was militarized and not exactly �peaceful��is apparent in the fact that one
side�s patriot is the other side�s traitor. Punishments for disloyal acts
are a means of insisting on who has legitimate power in our constitutional democracy, and of deterring those who are shown to be trying to destroy
it. The legal terms may seem archaic, and sometimes have been misused or abused, but that should not blunt their precise relevance to our
unfortunate contemporary situation.
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