Besides, who needed modern distractions when the history was so thrilling? The story of treason—attempts to overthrow the government or to aid our enemies—is nothing less than the story of America itself. Our country was forged in the American Revolution by people willing to commit treason against Great Britain, and the Confederate cause in the Civil War was the largest-scale act of mass treason in our history. The individual characters are riveting, from Benedict Arnold and his sordid betrayal of West Point to the poet Ezra Pound, prosecuted for treason for broadcasting fascist propaganda from Mussolini’s Italy. The accused persons represent every segment of society, from a former vice president (Aaron Burr) to the local leader of a miners’ union prosecuted for treason against West Virginia in the 1920s.

The Revolutionary War officer Benedict Arnold was a traitor to the American cause who defected to the British Army in 1780. Here, Arnold is depicted providing plans to surrender West Point to the British to his friend British Major John André. André was later captured and hanged; Arnold got away. Courtesy of C.F. Blauvelt/Library of Congress.

For many years, I worked on the book that would become The Trials of Allegiance: Treason, Juries, and the American Revolution. I could proceed at a glacial George R.R. Martin-agonizing-over-The Winds of Winter pace because there was no obvious connection to current events. In 2015, a Zócalo Public Square essayist confidently proclaimed that “We’re living in what has to be the nation’s golden age of loyalty.” The essay was headlined, “Is Treason now Just a Punch Line?”

And then that world was turned upside down with the political rise of Donald J. Trump. The first phone call from a reporter came in July 2016, after Trump publicly encouraged Russia to find Hillary Clinton’s emails. The question—which I would quickly become used to—was: “Is this treason?” And the answer (which I also quickly became used to, given the Constitution’s narrow definition of the crime), was no. But the calls kept coming, becoming a flood after Trump’s inauguration, as antennae perked up at further revelations about Michael Flynn, Russian interference in the election, the Mueller investigation, and the infamous meeting at Trump Tower.

Around this time, my literary agent asked me to write a second book about treason, one that would bring the story up to the present day, and that would lay out the byzantine law of treason in a manner accessible to interested citizens. I wasn’t sure I was ready to take on another book so quickly, but as misguided treason charges and countercharges swirled through our national debate, I came to realize that we were in a unique historical moment. If we were going to be arguing about American treason law so much, we should at least have a better understanding of what it is—and maybe even more importantly, what it is not.

All nations have treason laws to deal with the problem of disloyalty. But if those laws aren’t carefully circumscribed, they can easily become a tool of domestic oppression—a tendency the framers of the U.S. Constitution recognized all too well. In the tumultuous years prior to the adoption of the Declaration of Independence, British authorities had threatened to prosecute American tax protestors for high treason in England, far from the protections of a local jury. Prominent attorney James Wilson, who represented Pennsylvania at the Constitutional Convention, explained the problem this way at the Pennsylvania ratifying convention: “Crimes against the state! and against the officers of the state! History informs us that more wrong may be done on this subject than on any other whatsoever.” Wilson and the other framers of our Constitution accordingly chose to define the crime directly in the document itself—and to define it narrowly. Article III, Section 3 restricts the offense to “levying war against the United States” or “adhering to their enemies, giving them aid and comfort.” Although these phrases pose many interpretive difficulties, they clearly prevent treason prosecutions for offenses such as criticizing the government or organizing a political party.

There have been few actual treason prosecutions under the U.S. Constitution, and only one person, Hipolito Salazar, has been executed for treason under federal authority (a truly bizarre case from the Mexican-American War—Salazar was a Mexican citizen, tried and convicted on Mexican soil). A handful of American presidents have been traitors, though none during their time in office—and none were prosecuted. Our first five presidents all committed treason against Great Britain during the Revolutionary War, well before the adoption of the Constitution. During the Civil War, former president John Tyler committed treason when he supported military actions against the United States in his role as a member of the Virginia Secession Convention. Curiously, the older crime of treason against individual states was not definitively eliminated by the Constitution and states have occasionally brought charges, most notably the 1859 prosecution of John Brown by the state of Virginia for leading the raid on Harpers Ferry.

Other than the distinctive case of the secessionists during the American Civil War, it’s rare for disloyalty to rise to the level of treason as defined in the Constitution. So why is it that treason—or “treason”—is now so regularly discussed? There are two simple reasons: what Donald Trump does, and what Donald Trump says.

First, for many people, Trump’s conduct raises considerable suspicions about his underlying loyalty. Trump consistently seems to place Russia’s interests ahead of America’s, whether by ignoring or condoning blatant Russian misbehavior or by kowtowing to Vladimir Putin. Indeed, Trump’s consistent failure to publicly criticize Putin is perhaps the most bewildering aspect of his presidency. Many Americans fear the worst, pointing to news reports suggesting that Trump’s tangled financial dealings involve significant debts to Russian sources. It is not irrational to suspect that Russia may have all kinds of personal or financial kompromat on him.

In a colloquial sense, Trump’s conduct—far beyond the bounds of normal presidential behavior—may have betrayed the country. But nothing Trump has done (or is alleged to have done) formally rises to the level of treason as a matter of criminal law. Foreign nations like Russia are “enemies” only if we are in a state of open war with them. Despite all the covert back and forth with Russia, we are simply not in a state of open war. For similar reasons, Americans who spied for the Soviet Union, like the Rosenbergs or Aldrich Ames, were prosecuted for espionage (which doesn’t require a state of open war), not treason.

Still: “it’s not technically treason” is a strange thing to have to say about an American president.

Second, unlike any of his predecessors, Trump uses his presidential podium to routinely accuse other Americans of treason, targeting congressional Democrats, anonymous critics, James Comey, Adam Schiff, and, perhaps most notoriously, his predecessor, President Barack Obama.  In a Tweet (naturally), Trump claimed that the “ObamaBiden Administration” had committed “treason” by spying on his 2016 presidential campaign. These accusations lack even the flimsiest basis in fact or law—but unfortunately many of Trump’s supporters take him at his word. They are convinced that actual traitors permeate the Democratic party and the federal government.

We have become so numb to the excesses of Trump’s rhetoric that it is easy to forget just how extraordinary this is. Treason is a capital offense and routinely described as the highest crime in American law, worse even than murder. Accusing a fellow American of treason is (or at least used to be) one of the most significant utterances a president could possibly make. But now it often doesn’t even make the news.

Since the current excitement over treason and disloyalty is so heavily tied to Trump’s distinctive behavior and rhetoric, it will likely dissipate significantly when someone else occupies the Oval Office. At the same time, even a defeated or termed-out Trump may continue making outrageous claims from the sidelines, thus risking continued pollution of our political rhetoric.

American treason law is a rich and rewarding field, one that is absolutely central to the larger story of America itself. On some level, I suppose I should be pleased that the subject into which I have invested so many years of research is now attracting a much wider audience. But, as fascinating and surreal as it is to be queried regularly by reporters about whether the president of the United States has committed treason, I’d much prefer to live in a world where that question doesn’t arise.

The post Why ‘Treason’ Usually Isn’t Treason appeared first on Zócalo Public Square.

Legally speaking, treason—at least in the United States—is a narrowly defined crime, and for good reason. Under the British crown, treason could include a wide range of acts, some ambiguous enough to allow questionable or baseless charges. Merely imagining (known as “compassing”) the king’s death, for instance, could be treason. Anne Boleyn, Henry VIII’s second wife, was convicted of treason for adultery (based on pretty flimsy evidence).

And in the American colonies, declaring independence from King George III was itself a treasonous act. Most traitors were punished by being dragged to the gallows, hung, cut down while still alive, their entrails cut out and burned, before finally being decapitated, limbs quartered, and delivered to the king. (Nobility were spared this production and simply beheaded.)

Having escaped this fate themselves, the Founding Fathers wanted to limit the scope of what could be considered treasonous in our new democracy. For that reason, treason is the only crime explicitly defined in the Constitution; it consists “only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Further, conviction for treason requires the testimony of two witnesses or a confession by the accused in open court. In other words, no matter how nefariously you act on behalf of another country against the interests of the United States, you won’t be convicted of treason unless we are at war with that nation and there is adequate proof of the crime.

The moral sin of treason, though, is a different story. And for that, Dante’s Inferno is a useful guide. In Dante’s imagined descent through hell, he reserved the Ninth Circle—the “lowest, blackest, and farthest from Heaven”—for the sin of treachery. The worst sinners, in his underworld, were the traitors—those who betrayed their loved ones, their country, and their God. Betrayal lies at the core of what we label as “treason,” and for Dante, the two concepts would have been synonymous: Dr. Marina Johnston, Associate Director of the Center for Italian Studies at the University of Pennsylvania, says that the origin of the Italian tradire (to betray) is “turning someone over to the enemy, outside the space of trust of one’s family, party, and country, breaking their covenant with God.”

Dante’s punishment for treachery, while less gruesome than the English version, was more fitting for the crime. Traitors in the Ninth Circle lie buried in a lake of ice formed by the tears of Lucifer, the angel who betrayed God. Lucifer’s flapping wings keep the lake frozen solid so the guilty cannot move, and freeze the tears of those who try to weep. In committing treachery, Dante believed, these sinners deliberately broke the bonds of love and human fellowship, and are therefore condemned to an icy landscape that lacks the warmth created by the heart. So cold-blooded are the sinners in this circle that some of their souls are punished in hell even as they remain alive on earth.

Ironically, Dante himself was falsely accused of treason. While serving as a city prior in 1302, Dante was accused of corruption and financial wrongdoing by a rival political party in Florence; his enemies used his presence in Rome at the time as proof that he had absconded the law, confiscating his property and sentencing him to death if he returned. Dante remained in exile for more than 20 years—during which time he wrote the Inferno. His condemnation of traitors to the worst suffering possible no doubt reflects, in part, the psychological pain he experienced after being betrayed by his countrymen. (Better late than never, the city of Florence reversed his sentence in 2008.)

Because treason is something we feel so viscerally, limiting its expression in the law is a good thing. Until the 1970s, for example, several states legally permitted a man to kill the paramour of his wife if he caught them having sex—apparently on the premise that it would be perfectly natural to react violently when betrayed in love. More recently, political leaders have questioned the loyalty and patriotism of those who don’t stand for the national anthem. What constitutes treason lies in the heart of the beholder, and the framers of the Constitution wisely recognized that relying on lawmakers’ hearts isn’t the best way to rule a democratic society.

Even so, it can be disheartening to realize that the law won’t necessarily serve justice on those you perceive as engaging in traitorous acts against the United States. And finding the words to describe your outrage can be difficult. So, as a lawyer, I give you permission to still call it “treason”—as long as you remember that the guilty parties will receive their icy deserts only in the afterlife.

The post Treason Isn’t Just a Crime—It’s a Sin of the Heart appeared first on Zócalo Public Square.

The short answer—offered at the debut of a Zócalo/KCRW event series, “Critical Thinking with Warren Olney”—amounted to this: America was founded by traitors.

“The American Revolution was a massive act of treason against the British government,” said UC Davis legal scholar Carlton F.W. Larson, who is working on a book about treason. And even before the war, American colonists had been accused of treason under English law for acts of protest like the Boston Tea Party.

So, Larson said, the Founders pointedly included a limited definition of treason in the U.S. constitution. The more expansive version in English law made it easier to punish those who opposed the King as traitors—with not just execution but decapitation and disembowelment. The Founders had another reason for making treason hard to charge and prove: to discourage political opponents from accusing one another of treason and being un-American.

“What the framers did not want was to have a democracy where the winning side prosecutes the losing side for treason,” Larson said, a sentiment that echoes in today’s bitterly partisan American politics.

Larson explained the history in response to questions from Olney, the legendary public radio host and dean of Southern California journalists, during the event at the National Center for the Preservation of Democracy in Los Angeles. Larson and his fellow panelists, all lawyers and scholars, emphasized that treason is the only crime defined in the U.S. constitution: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” It is also the only crime with a standard of evidence: “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.”

UCLA legal scholar Eugene Volokh said those requirements—treason must occur in the context of war, and there must be two witnesses—severely limit prosecution for treason. When Americans commit crimes that are popularly characterized as treason, they are usually charged with other crimes. Even assisting countries like Russia and China, with whom the U.S. is often in conflict, isn’t treason because we’re not currently at war.

“There is a vast range of bad behavior, including bad behavior having to do with other countries,” he said, “a tiny fraction of which is treason.”

Another panelist, senior lecturer at Yale’s Jackson Institute for Global Affairs Asha Rangappa, had firsthand dealings with what might be called treason in her previous job as an FBI special agent. She worked to identify those engaged in intelligence for foreign governments, and then flipped them to help the U.S. “They are essentially betraying their country for the United States,” she noted. “This is the spy game. We do it. Other countries do it.”

But American double agents do not necessarily commit treason under the Constitution, she said, given the requirements of war and witnesses. The notorious Robert Hanssen, a former FBI special agent who provided information to the Soviet and Russian governments for two decades, wasn’t convicted of treason, but of espionage.

“There are very few laws against spying,” said Rangappa.

Rangappa suggested using alternative words to convey betraying the country—her preference is “treachery.” In the Inferno, Dante reserved the ninth circle of hell for treachery. “He made it the lowest, blackest, and furthest from heaven,” she recalled. “When I talk about Edward Snowden or Chelsea Manning,” both of whom she said she considered traitors, their behavior “may not be the legal definition of treason,” but it is “treacherous.”

Snowden and Manning are part of a long line of American figures who are perceived at least by some as traitors. The panelists mentioned Benedict Arnold (who “remains the greatest traitor America ever had,” said Larson); Robert E. Lee (Volokh saw him as a traitor but noted that the Civil War shows the wisdom of having a pardon power to promote national reconciliation); and John Walker Lindh, who aided the Taliban (he pleaded guilty to charges lesser than treason).

The panelists also argued in complicated detail over Anwar al-Awlaki, a U.S.-born cleric who became an Al Qaeda propagandist and was killed by a U.S. drone on orders of President Obama. Intriguingly, panelists said that al-Awlaki’s online recruitment videos would not meet the Constitution’s requirement of two witnesses. However, Larson allowed that if the Founders had anticipated video technology, they might have included such a video declaration as a standard for proving treason.

During the question-and-answer session, audience members pressed the panelists to comment on the ongoing investigations surrounding Russia, the 2016 elections, and President Trump and his associates. One audience member asked: “Could you explain what might happen when we have the results of special counsel Robert Mueller’s investigation?”

“Many things,” said Volokh, “but not a treason prosecution.”

Rangappa praised Mueller, her former boss when he served as FBI director, but said that people expecting his investigation to put people in prison may be disappointed. Even if he uncovers bad behavior, it could be difficult to prove federal crimes. At another point in the evening, she noted that providing information to Russians on how to use Facebook to target certain voters is not a crime, and definitely not treason.

She added that it’s important not to equate what’s legal with what’s right. She recalled doing FBI background checks of government appointees, and asking questions about people’s loyalties, bias, personal finances, or use of alcohol and drugs. The point of such checks isn’t to identify crimes so much as it is to identify people who should not be in positions of public trust.

“There’s a bigger picture we lose sight of when we just focus on legality and criminality,” she said.

The post It’s Hard to Be an American Traitor, Even If You Try appeared first on Zócalo Public Square.

One answer lies in our nation’s founding document. Treason is the only crime defined in the U.S. Constitution, which states: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

The Founders borrowed this language from the law of King Edward III of England. Enacted in A.D. 1350, Edward III’s statute had also criminalized “compassing or imagining” the death of the king, sexually violating certain women in the royal household, counterfeiting the great seal or coinage of the realm, and murdering certain royal officials—offenses that would not make sense to consider treasonous in a republic.

The U.S. Constitution also requires “the Testimony of two Witnesses to the same overt Act” or “Confession in open Court” in order to obtain a conviction. The requirement of an “overt Act” was intended to preclude judges or politicians from using treason trials to go after political opponents, as had been common in early modern England. Indeed, for centuries British monarchs had coerced judges into condemning political opponents to death based on spurious evidence or flimsy allegations, often rooted in the claim that the “traitor” had compassed or imagined the death of the king.

In America, the Founders wished to hold government authorities to a higher evidentiary standard.

But defining treason in the Constitution was one thing. It took actual experience to give life and practical legal meaning to the American idea of treason.

Within a decade of the Constitution’s ratification, several groups of protestors in Pennsylvania were convicted of treason for violently resisting the enforcement of federal tax laws. Fortunately, Presidents Washington and Adams pardoned these “traitors” before any of them stepped foot upon the gallows. Their convictions had rested on an old English concept that “levying war” included violent resistance to a law. But the courts would soon begin to move away from this broad definition of treason. The first case to do so was the 1807 trial of Aaron Burr.

Burr had been Thomas Jefferson’s vice president from 1801 to 1805. A political chameleon, Burr would change party or office whenever he believed it to be most politically or financially advantageous. In 1800, Jefferson selected Burr as his running mate, hoping that Burr’s presence on the ticket would help carry northern states, like New York. In those days—prior to the ratification of the Twelfth Amendment in 1804—members of the Electoral College did not specify whether they were voting for president or vice president when they cast their ballots. So Jefferson and Burr tied in the Electoral College. Seeing this as an opportunity to slip his way into the presidency, Burr allowed the election to be thrown into the House of Representatives, where it took 37 ballots to decide that Jefferson was actually president-elect. This episode scarred Jefferson, teaching him that he could not trust his vice president.

Aaron Burr, who served as Thomas Jefferson’s vice president, is shown in an illustration on Oct. 4, 1956. Burr was indicted for murder in the duel slaying of Alexander Hamilton and later for treason in a plot to seize the new Louisiana Territory. Image courtesy of Associated Press.

In July 1804, Burr famously shot and killed Alexander Hamilton in a duel. Later that year Jefferson ran for reelection with a different running mate, and by March 1805 Burr was out of office. Now a political exile and accused murderer, Burr turned his gaze toward the western frontier.

Although the details of his plans remain murky, Burr made visits to the frontier—perhaps to provoke war with Spain and liberate Mexico; perhaps to separate the trans-Allegheny region from the United States and to set up his own empire; or perhaps simply to see how he might strike it rich. Unfortunately for Burr, one of his accomplices in New Orleans began to have second thoughts and sent copies of some of Burr’s correspondence to Washington, D.C., revealing Burr’s plans to federal authorities.

When word of Burr’s alleged plots reached Jefferson on November 25, 1806, the president decided to stop him. Without mentioning Burr by name, Jefferson issued a proclamation two days later stating that a traitorous conspiracy had been uncovered and he called on “all persons whatsoever engaged or concerned in the same to cease all further proceedings therein as they will answer the contrary at their peril.”

The House of Representatives requested Jefferson to present evidence in support of his claims. Although he saw this request as an affront to his administration, Jefferson nevertheless complied on January 22, 1807, this time identifying Burr by name and stating that he was an “archconspirator” and traitor whose “guilt is placed beyond all question.”

Jefferson’s public declaration of Burr’s guilt—before Burr had even been arrested or indicted—was controversial. Writing from his home in Quincy, Massachusetts, ex-president John Adams declared that even if Burr’s “guilt is as clear as the Noon day Sun, the first Magistrate ought not to have pronounced it so before a Jury had tryed [sic] him.”

Several of Burr’s associates were arrested and transported to Washington, D.C., for trial. In Washington, President Jefferson and Secretary of State James Madison personally interrogated one of them, disingenuously telling him that anything he said would not be used against him in court (it later was).

Fortunately for the prisoners, their case came before U.S. Supreme Court Chief Justice John Marshall.

Marshall loathed Jefferson. Although the two men were both Virginians—and cousins—they had polar opposite views of what was best for the American republic. Throughout his tenure on the bench Marshall used his position as chief justice to articulate a nationalist view of the U.S. Constitution. Jefferson, an agrarian, generally opposed a strong central government. To make matters worse, Marshall had been appointed by lame duck president John Adams and confirmed by a lame duck Federalist Senate in early 1801, just weeks before Jefferson took office. Marshall, in effect, occupied a stolen seat on the Supreme Court that Jefferson believed he should have had the chance to fill.

In February 1807, Marshall ruled that Burr’s associates could not be tried in the nation’s capital since they had not committed any crime there. Much to Jefferson’s chagrin, they were released.

But that ruling wouldn’t spare Burr.

Burr was traveling down the Mississippi River on nine longboats with about 60 men when he learned that he might be assassinated in New Orleans. He tried to escape, making his way deep into the Mississippi Territory. But the U.S. military soon caught up with him and arrested him on February 19, 1807.

Burr was sent to Richmond for trial because his alleged “overt act” of treason had taken place on Blennerhassett Island, a small sliver of what was then Virginia, in the Ohio River, where, in December 1806, there had been an uneventful but armed standoff between some of Burr’s men and the Virginia state militia. (Of great significance to the eventual outcome of the case, Burr was not present at this standoff.)

Jefferson took an unhealthy interest in the prosecution of Burr’s case. The president sought to have a jury made up entirely of Jeffersonian Republicans. He also wanted the Treasury Department to pay the expenses of government witnesses. In an extraordinary delegation of executive authority, he sent his prosecutor “blank pardons … to be filled up at your discretion” should any of the other “offenders” be willing to testify against Burr. Finally, the president also supported a declaration of martial law in New Orleans, enabling military authorities to arrest civilians without warrants—including journalists—and to rifle through private mail at the post office in search of evidence.

Jefferson’s view of the evidence against Burr was highly problematic. “As to the overt acts,” he wrote, “were not the bundle of letters of information in Mr. [Attorney General Caesar] Rodney’s hands, the letters and facts published in local newspapers, Burr’s flight, and the universal belief or rumor of his guilt, probable ground for presuming … overt acts to have taken place?”

There was great irony in Jefferson’s attitude here, for when newspapers were unkind to his administration, he blasted them for their unreliability. “Nothing can now be believed which is in a newspaper,” he wrote in April 1807. “I will add, that the man who never looks into a newspaper is better informed than he who reads them; inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors.”

Despite the weakness of the evidence, the trial began on August 3, 1807. The prosecution lined up more than 140 witnesses, but after several testified to Burr’s “evil intention,” Burr’s lawyers objected that the witnesses were not offering any evidence regarding any actual overt act of treason. Chief Justice Marshall, who was presiding over the trial as a circuit judge, ruled in favor of the defense, arguing that only witnesses who could testify about an “overt act” of “levying war” could take the stand. Since Burr had not been present at the standoff on Blennerhassett Island in December 1806, no further testimony would be admitted. The jury found him “not guilty by the evidence presented.”

President Jefferson was disgusted with the outcome of the trial, and he expressed his contempt for the courts as a result. In fact, Jefferson even advocated for an amendment to the U.S. Constitution that would enable the president to remove federal judges from office should both houses of Congress request it, claiming that the judicial branch was acting “independent of the nation” and that the courts were extending “immunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution.”

From Jefferson’s perspective, if judges were going to allow traitors to undermine the nation, then they should not receive the constitutional protection of life tenure. Fortunately, such a brazen assault on the federal judiciary by Jefferson and his followers in Congress did not become law.

Jefferson’s behavior in United States v. Aaron Burr reveals a president willing to allow his politics and personal vendettas to cloud his judgment. Hating both the defendant and the judge in this case, Jefferson personally inserted himself into a criminal prosecution in an unseemly way.

A controversial presidential election. A stolen Supreme Court seat. Allegations of treason. A president with open disdain for the courts and the press. The contest that defined treason in early America had elements familiar to Americans in 2017. And, as frustrated we now may be over today’s politics, perhaps we can take comfort in knowing that our Founding Fathers faced similar conflict—and yet the nation survived.

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