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March 13, 2019



Recently, I reprinted my blog post “ Is Treason a Republican Campaign Strategy” on Daily Kos (Here). One of the comments by someone who signs himself to the Daily Kos posting as “democratos ,” I found interesting and informative so I thought it would be a good idea to repost it here.


Trumped up charges of treason

Ubu Prez claims that Bob Woodward is a traitor for having written Fear. The head of a tyrannical regime further claims that all those who did not applaud him at the 2018 state-of-the-union likewise were traitors. Why are none of them traitors?

Why haven’t I been arrested (or disappeared) for defaming Ubu Prez? No doubt, as Lawrence O’Donnell said, Trump et al betrayed the US, but their disloyalty or policies that harm the United States are not treason.

Why? Because James Madison has my back. Mr. Madison assures me that I am not a “traitor” for claiming that the Head-of-State is one in common usage.

But not in law. The price paid for that extension of free speech? — A charge of treason cannot be among High Crimes chargeable against Ubu Prez. Do not test this uniquely American protection against their Heads-of-State when visiting Russia, China, North Korea, Saudi Arabia, Turkey.

Despite what “common sense” seems to dictate, and despite what Merriam-Webster purports to show, treason under US law is a charge rarely brought and one rarely sought, because of its remarkable non-conformity to facile expectations.

One late18th century traitor narrowed the scope of treason in order to broaden all Americans’ freedom of speech. Specifically, no one can be charged with treason for calling or depicting the Head of State a traitor.

James Madison and his fellow traitors against the Crown succeeded in evading treason charges and saved their collective necks from hanging separately, as Franklin quipped they had to do. Of course, seven years of revolutionary war were required to win their traitors’ bet, called the Declaration of Independence.

So important to Madison was restricting grounds for treason, he put the only statute approved, before Congress existed, into the body of the Constitution, Article 3, section 3:

Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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 Congress shall have the power to declare the Punishment of Treason…[Then follow two specifications: a finding of guilt does not apply to innocent family members, and an individual’s guilt expires with that person’s death. There can be no “inherited” guilt.]

Notice that Congress alone cannot abolish or alter the statute; that would require an amendment to the Constitution. Yes, Madison wanted his statute to stand. And it has.

The exact wording appears again as US Code 18:2381 along with penalties, cases settled and interpretations made by SCOTUS over more than 200 years. The last cases tried arose from acts committed during WW2.

What the words in the statute mean, of course, are themselves not “common sense” or dictionary commonplaces, but defined by Court interpretations. In particular…’war’ is warfare declared by Congress; ‘enemies’ are nations against which Congress has declared war. The last declared war was WW2.

There is nothing unusual here; all law has to be clarified. As the need arises, terms in statutes are defined and clarified in use in a legal context, not a “commonsense” context of dictionaries and wishful ignorance.

1. Michael Flynn’s judge suggested he might be guilty of treason. He’s not.

The bar for “treason” is really, really high.

By Dylan Matthews Dec 18, 2018.

2. Stop Saying Trump Committed ‘Treason.’ You’re Playing Into His Hands.

The president may be selling out America to Russia, but liberals are playing with fire in using the t-word to describe it.

— Jay Michaelson. Daily Beast. 17 July 2018.

3. Accusing Trump of Treason Will Only Help Him

The facts are coming. There’s no need to leap beyond them.

— Fred Kaplan. Slate. 18 July 2018.

4. Five Myths about Treason

MYTH NO. 1 Disloyalty or policies that harm the United States are treason.

MYTH NO. 2 Aiding Russia is treason against the United States.

— Carlton F.W. Larson*. Washington Post. 17 February 2017.

*Carlton F.W. Larson is a professor of law at the University of California at Davis and is writing a book about treason and the American Revolution.

How federal statute on treason received its current form

Chief Justice Marshall ruled on the Constitution’s treason statute in the case of alleged treason against Aaron Burr in 1807. He was acquitted on 1 September 1807:

Trying to escape to Spanish territory, Burr was arrested and returned for trial to Richmond, Virginia, the site of the nearest federal court that could hear a trial for treason.

Chief Justice of the U.S. Supreme Court John Marshall presided in his capacity as circuit judge for Virginia. (At that time, circuit courts had original jurisdiction to try treason cases; the Supreme Court has never had that power.)

Marshall acquitted Burr on the ground that acts of treason against the United States by definition require the existence of a state of war (Article III, Section 3 of the U.S. Constitution).

— Aaron Burr. Britannica (site)

Earlier alleged treason was The Whiskey Rebellion 1791-94. Of course, it was not a rebellion against the State, but a localized domestic uprising specifically against a federal excise tax. Washington pardoned two “traitors”.

Those cases have no relevance to today since Justice Marshall in 1807 reaffirmed Madison’s strict limitation of treason being a charge applicable only during a war declared by Congress.

Now, embodied as US Code 18:2381, the treason statute as interpreted by Marshall and written by Madison remains just as firm as it did 211 years ago.

What the founders intended and what the laws mean are not identical

No question that the Federalist documents put forward the founders’ intentions concerning the “meaning” of the foundation document itself. Once made law, their commentary no longer defines the document approved in 1791.

They could not and did not imagine that they could foresee every requirement for clarification, nor every possible legitimate extension, or every past interpretation inconsistent with democratic principles.

Being able to read their intended interpretations remains invaluable. But, their interpretations are not definitive. Here, strict constructionism breaks down.

Once a law gets enacted, what it means gets defined only in legal use. Courts exist, crucially, to interpret law, which includes specifying what it means based on past and present decisions.

The treason statute, US Code 18:2381, grows out of but is not identical to Article 3, section 3 of the Constitution. The Constitution has been augmented by interpretations, most famously and definitively by John Marshall in 1807.

Other cases of treason have been tried and these too are referenced in US Code 18:2381. This is the go-to place for what “treason” means in US federal law…not the important opinions in the Federalist’s public explanations.

This is how, in particular, Scalia and Thomas misunderstand the very laws they have interpreted by a process the founders themselves repudiate so-called “strict construction”. Nothing but wishful thinking on parade.

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