The Constitution and the Crime of Treason

Thanks to Donald Trump, our national pot seems to be on the verge of boiling over, but before it does, there are a number of issues that we must get straight.  One essential concern is what, exactly, constitutes treason.  This is because it is vital that Donald Trump be removed from the Presidency on this ground.  Yes, there are a hundred other reasons that he has no right to be our President, but it is his treasonous conspiracy with a hostile foreign power which acted to put him in office, which forms the basis for a declaration of the illegitimacy of his entire Presidency, and the voiding of everything he has done while President, including all executive orders and mutilations of government departments, and the removal of all persons he placed on the Federal courts.  Removing him on this basis would also mean removing his vice President, who is equally illegitimate.

In anticipation of this possibility, the Republicans have begun a campaign to convince the American public that the crime of treason can only be charged when the United States is in a declared state of war with another country, something that has not happened since World War II.  This assertion is supported by the claim that court cases over our history have declared this to be true.  I spent a little time online looking at treason trials conducted by the United States.  They are actually few and far between, and mainly occurred early in our history as a result of the Whiskey rebellion, or as a result of World War II.  (In a gross miscarriage of justice, almost nobody was prosecuted for participating in the Confederate aggression during the civil war.)  Anyway, I am not an attorney, and I can't say I spent hours searching, but I was not able to find any record of a case that ruled this way.  And even if there were such cases, that would not necessarily be dispositive, as the courts have clearly been wrong before; no one would argue that the decision in the Dred Scott case should be a precedent today, and the corrupt decisions in Bush v. Gore or Citizens United clearly cannot be allowed to govern our country in the future.

I want to now present two arguments against this notion, one Constitutional and one a reductio ad absurdem argument.

It always amazes me when right wingers dig up the most obscure so-called precedents to justify their positions, while ignoring the actual words of the Constitution, or the primary reference regarding their meaning, the Federalist Papers, written by the authors of the Constitution to explain their reasoning.
Signing of the Constitution

Well, first of all, here is what the Constitution actually says about treason:

Article III, section 3"1: 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."

Notice that there is nothing that restricts charges of treason to times of declared war.  Now let me go on to the passage in Federalist Paper #43, written by James Madison on behalf of himself and his fellow writers of the Constitution:

Federalist Paper no. 43:"To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained. ''As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author."

This is the entire explanation offered of the meaning of the treason section of the Constitution.  Notice that, though the reasoning for various provisions in the Constitution is dealt with here, once again, there is no mention of any kind of a restriction of the provisions of this law to times of declared war.
James Madison

As far as I am concerned, this section is completely dispositive.  The writers of the Constitution went to great lengths in the Federalist Papers to explain exactly what they had in mind; they were perfectly capable of saying what they meant, and we are capable of reading it.

Now to my other argument, the reductio one.  Imagine, if you will, that it was discovered that an American had aided the Japanese attack on Pearl Harbor.  Could anyone seriously assert that this person would not be guilty of treason, solely because his behavior took place on the day before war was declared?  Treason is among the worst crimes we know of; can any honest person suggest that a traitor could be absolved of his guilt by a meaningless technicality such as this?

As I stated above, we are already seeing Conservative "legal scholars" trying to work the refs by insisting that Donald Trump can not be charged with treason as a result of his betrayal of the country to the Russians; it is up to the rest of us to have none of this specious argument.  This is the ultimate specimen of Trump's crimes; if he is held responsible for anything, this must be at the head of the list.

If you are interested in verifying that I have been truthful about the claims I have made about the Constitution, you can look here:
Text of the Constitution
Federalist Paper #43


Infidel753 said…
What's the legal basis for saying that convicting Trump of treason would mean "the voiding of everything he has done while President, including all executive orders and mutilations of government departments, and the removal of all persons he placed on the Federal courts"? I've never heard that said before.
Jerry said…
Many of Trump's actions (and personnel appointments) were done with the support and authority of the Congress. Anything signed by Trump as president cannot be undone simply because he is found guilty of treason. A new Congress and a new president will have to act to change what Trump has done.
Green Eagle said…
Infidel, the only "legal" basis is that, having been placed in the Presidency through the work of a hostile foreign power, he should never be considered to have held the office legitimately, and therefore everything he brought about is void. Yes, Republicans would fight against it with all the wrath and power they have, and they would likely win. But it is vitally important that the record shows that his time in office was no more legitimate than if he had taken power as a result of foreign conquest, like Vidkun Quisling.

Jerry, well then, let's get that new Congress and President and go about seeing that Trump has no more status as President of the United States than Jefferson Davis did.

I'm sorry to say that I sense in both of you a touch of the sense of inevitable Republican victory that has plagued the Democrats for decades now. Maybe we can't do this, but let's not give up before we at least try to do the right thing.
Jerry said…
President Lincoln decided to grant amnesty to those leaders who surrendered, and his successor President Johnson (with a little prodding from General Grant) stuck to that promise.

At the time there were legal opinions that every soldier down to the drummer boys who fought for the South were traitors, but Lincoln was adamant about amnesty.

Lee was charged with treason, but Grant (as president) stepped in and the charges were dropped through some legal technicality.

Secession is clearly illegal in today's law, but that law was settled after the Civil War. There was debate at the time if States had a legal right to secede, but the debate was moot since the South attacked the North.
Jerry said…
There is zero evidence that the actual vote count was tampered with. If you want to claim the American voter's thinking was swayed through lies, that's what political ads are all about and why we spend millions on those ads to sway voters thinking. The American voters were dumb enough to vote for Trump. There is a sucker born every minute.

This country has never elected a president by popular vote. Presidential campaigns know their strategy has to be to win the Electoral College. Including the power of gerrymandering, which has been used by both sides throughout our country's history.

I have not fallen for some inevitable Republican victory. The voters of America have spoken over the last 50 years, just as they have for the last 230 years. I certainly disagree with the outcome of the elections which have brought us Republican leadership over the last 50 years and caused our sad situation.

Unlike Trump and other Republican leaders we must follow the law, even when getting rid of some of the illegal acts Trump and Republicans have forced on our country.
Infidel753 said…
a touch of the sense of inevitable Republican victory that has plagued the Democrats for decades now

Wrong. Read my comment again. I asked a question because you made an astonishing claim I had never seen anyone make before. If you had been able to cite a specific law or Constitutional provision to back it up, or if it turns out to be doable somehow after Trump is removed, I'd be all for it.

I've always been diligent at calling people out for pushing defeatism and cynicism. But I'm also aware that a lot of people think Democratic politicians can do things they can't actually do, and then slump into defeatist thinking or reject the party when those things don't get done.
Green Eagle said…
I don't think they can or they will, just to reassure you that I haven't suddenly taken leave of my senses and turned into Joe Lieberman. I think it is something that every decent American should demand. Of course, this would be venturing into uncharted Constitutional territory, but it is Trump that dragged the country there, not us.
Green Eagle said…
P.S., Infidel, great Mike's Blog Roundup today. It's rare when I want to read everything linked to.
Infidel753 said…
OK, cool -- just wanted to make it clear I'm by no means promoting defeatism here.

Glad you liked the round-up -- I'm sure you saw you were included in Tuesday's.
Green Eagle said…
Well, at least that was one article I didn't have to read.
Magpie said…
This post reminds of the case of Julius and Ethel Rosenburg who were convicted and executed for the crime of espionage in 1953, specifically providing military, including nuclear, secrets to the USSR. Aspects of the case are disputed, but the point is the United States was not at War with the Soviet Union in a legal sense.
The charge wasn't treason either, but surely such acts amount to treason.
Green Eagle said…
Magpie, thanks for addressing the basic issue of my post. We sort of got carried away on a very tangential point I was making. The important thing is that, regardless of the consequences, it is an absurd notion that there has to be a declared state of war before someone can commit treason.
Celliach said…
"In imposing the death penalty, Judge Kaufman noted that he held the Rosenbergs responsible not only for espionage but also for deaths in the Korean War:

I consider your crime worse than murder ... I believe your conduct in putting into the hands of the Russians the A-Bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your TREASON. Indeed, by your betrayal you undoubtedly have altered the course of history to the disadvantage of our country. No one can say that we do not live in a constant state of tension. We have evidence of your treachery all around us every day for the civilian defense activities throughout the nation are aimed at preparing us for an atom bomb attack.[29]
Green Eagle said…
Of course, this language seems pretty intemperate today. And we know that the notion that only the United States was smart enough to make nuclear weapons was false. Today, apart from getting their hands on the fissionable material, a bright high school student could make an atomic bomb.

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