Episode 51: Treason

For a serious crime, accusations of treason get thrown around a lot - which is why the framers were very specific about what does and doesn't make you an actual traitor. In fact, treason is the only crime explicitly defined in the U.S. Constitution.  In this episode, University of California Davis law professor Carlton Larson explains the difference between treason and espionage, and why most of those guilty of treason will never be convicted. 

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[Virginia Prescott] So how is treason defined in the Constitution?

[Carlton Larson] So the Constitution says treason against the United States shall consist only in levying war against them or in adhering to their enemies giving them aid and comfort. So those are the only two types of treason that a person can be convicted of in the United States.

[VP] And this is the only crime specifically mentioned in the Constitution, have I got that right?

[CL] It's the only crime defined, there are a few others that are mentioned such as bribery but it's the only one that's given a constitutional definition and that's because the framers were concerned that this was a type of crime that was subject potentially to a lot of abuse. People would use charges of treason against political enemies in ways that were inappropriate. And so the concern was that we need to make sure in the Constitution itself that treason has a very narrow and specified definition.

[VP] Is there anything about punishment in the Constitution?

[CL] Yes. So the Congress has the power 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 attainted. And what this means is that there is a difference between American law and what was the English law at the time. Under English law a person who was convicted of treason was deemed centrally civilly dead for all purposes and that meant that they didn't exist for purposes of inheritance. So for example if a grandfather died and his grandson wanted to inherit but the intermediate person, the father, had been convicted of treason the grandson could not inherit because his blood had been deemed corrupted by the sins of the father. And the constitution here specifies that that cannot happen in the United States.

[VP] Benedict Arnold's name has become synonymous with committing treason although he was never actually convicted nor was Aaron Burr. How many people actually have been convicted of treason in American history?

[CL] There have been a handful of people convicted under the United States Constitution although all of them have ultimately been pardoned and none of them have actually been executed. The most prominent were a handful of people after the Whiskey Rebellion of 1794 in western Pennsylvania and three people after the so-called Frie's rebellion in the late 1790s in eastern Pennsylvania.

There were a number of people convicted during the American Revolution. That was before our Constitution was in place and they were convicted technically of treason against their state and that offense remains in theory a viable offense as well. You can commit treason against your home state as well as against the United States.

And the most famous example of that would be John Brown who led the raid on Harpers Ferry in 1859. And John Brown was convicted of treason against the state of Virginia for levying war against Virginia.

[VP] So you've identified a number of myths about treason. What are some of the things that people think you can be convicted of treason for, but you actually can't? So for example, criticizing the government, not treasonous right?

[CL] Yeah. Clearly just making speeches against the government doesn't constitute levying war against the United States. You have to have some type of armed force that you use against the government.

[VP] So how about just disloyalty? What does that mean?

[CL] Well curiously just disloyalty itself is not treason. There are a lot of things one can do that are disloyal to the United States in a very very serious way, that don't actually count as treason. So for example espionage on behalf of a country with whom we are not at war, is not treason. If you give military secrets to the Chinese or to the Russians or the Israelis, that is not treason. It's clearly disloyal, it's dangerous, and it's a crime but it's not treason.

[VP] So despite charges that, for example, Donald Trump Jr. should be charged with treason for meeting with and for communicating with Russian officials about the presidential election, not treason.

[CL] Yeah that's not treason because Russia is not an enemy for purposes of the treason clause. To be an enemy a country needs...we either need to be in a declared war or in a state of open war and we are not in that state with Russia. So even conspiring with Russia to undermine the U.S. presidential election is not treason.

[VP] So what could he be charged with if not treason?

[CL] Well I think there's a variety of campaign finance regulations that might bear on Trump's case. It's possible that certain provisions of the Espionage Act might be applicable as well...it would all turn on, you know, the particular facts and we don't really know for sure what happened exactly in that meeting.

[VP] So when you're talking about countries that we are at war with, that doesn't mean adversaries. How does that defined in treason? If you were colluding with, for example, or supporting an adversary rather than an enemy that we are in armed conflict with?

[CL] Yeah if it's just an adversary then it's treated the same as any other nation with whom we are at peace. So there's no technical difference between an adversary say Russia and Canada which is, of course, a good friend.

[VP] Well how about putting the interests of another nation ahead of the United States and maybe an example of that?

[CL] Yeah again so if you imagine a U.S. official who is secretly loyal to another country and does everything that official can to make that country's interests prevail even at the expense of the interests of the United States. Again that's not treason unless it rises to the level of giving aid and comfort to an enemy. So only if that country could be defined as an enemy under treason law would that be treason.

[VP] Trying to figure out what aid and comfort actually means. I mean I've looked online and seen that there are several people still calling for charges against Jane Fonda for visiting Hanoi when we were in the war in Vietnam in the 1970s. What does aid and comfort mean?

[CL] That's a hard question. And there are a variety of court decisions on this point trying to flesh it out. The most obvious examples would be: you give money to the enemy. You provide the military supplies you provide them with guns or aircraft or something like that. That would be the simplest and easiest case. Then on the other hand you could imagine someone simply expressing sympathy for that country. Someone writes a newspaper article saying: 'I don't think we should be at war with this country.' That I don't think that is aid and comfort to the enemy. And then there's going to be a whole bunch of areas in between that raise sort of a gray area. And one of the ways to sort it out is to kind of look at the person's intent and the courts have said, you know, did they intend to betray their country by doing this? And so I think a case like Jane Fonda can probably resolved by the fact that what she did in North Vietnam was extraordinarily foolish. But I don't think she had an actual intent to betray her country.

[VP] How about charges against Hillary Clinton or Edward Snowden for leaking or for mishandling classified materials. Is that cause for treason charges?

[CL] No, not even close. Hillary Clinton allegedly by having the private server meant that she was sort of sloppy with government information, can't under any stretch of treason law be seen as giving aid and comfort to an enemy. Similarly Edward Snowden leaking the material that he did. You know it gets close but I don't think it actually is.

[VP] It sounds to me that the charge of treason doesn't actually come up or is followed through that much in our nation's history.

[CL] Yeah it's extremely rare. Let me be a little more precise about that, it's extremely rare in courts of law. As actual fact though is not rare if we think about the United States Civil War where hundreds of thousands of people were in arms against the United States in the Confederate army. All those people were technically guilty of levying war against the United States. But none of them, including even the Confederacy's leader Jefferson Davis were ever convicted. So one of the things that happens is when you have a really big treason like the Civil War at the end of it you don't want to go around hanging everybody. What you want to do is get everybody back together on the same page and restore peace. And the way to do that is essentially by amnesty for everybody rather than a bunch of criminal trials.

[VP] Do you have to be a U.S. citizen to be charged with treason because it's against one's own country?

[CL] No you don't. Treason is a breach of allegiance which isn't necessarily the same as citizenship. That is, a person who is present in the United States, even if they're not a citizen, while they're here in the United States they owe what's called a "temporary allegiance" to the United States. And so that person could be guilty of treason if they do what the treason clause prohibits.

[VP] How about if you are supporting or uh conspiring to, you know, posting on Facebook are part of some sort of group that is presenting policies that harm the U.S.? So you know a foreign terrorist cell could those people be convicted of treason against the U.S.?

[CL] Well I think that's a hard question. I think it would depend a lot on whether it was actually coordinated with the foreign terrorist group. So if the foreign terrorist group was soliciting this person to place propaganda in America, that I think possibly could be a form of giving aid and comfort to the enemy. If it was simply done because the person felt this as a political position it might not be. The other problem with, you know, posting things on the Internet, is that the Constitution requires two witnesses to the same overt act for a conviction. And so it's quite possible that in many of those circumstances you don't have two witnesses who saw the person post the thing to the Internet.

[VP] When I was looking up treason, the Rosenbergs were a couple who they were indeed executed and in many places misidentified as having committed treason. What were they actually charged with?

[CL] So they were actually charged with espionage because they provided nuclear secrets to the Soviet Union and the sentencing judge, you know, essentially viewed their crime as equivalent to treason. He thought that it resulted in potentially the risks of, you know, tens of thousands of deaths but of course technically it was not treason because the Soviet Union, even during the Korean War when there was you know open warfare between us and communist forces, the Soviet Union itself was formerly a nation with whom we are at peace. So the Rosenbergs couldn't be charged with treason under the constitutional sense.

Now in sort of colloquial rhetorical terms people referred to them as traitors all the time and that-in that very colloquial sense they were traitors, but not technically under American treason law.

[VP] What's the difference between treason and sedition?

[CL] Well sedition historically had been a crime of speaking against the government. In the most famous instance would be the Sedition Act of 1798 which criminalized various types of anti-government speech. It is not something that's really a current part of American law, under current First Amendment doctrine it's next to impossible to criminalize sedition at least in the form of speech.

[VP] I've recently seen charges against Donald Trump, against Donald Trump Jr., against Hillary Clinton, John McCain, Mitch McConnell, all being accused of treason. What do you think our Civics 101 listeners should know about this charge?

[CL] Well what I think that one should know is that there's both the colloquial sense of treason, where people generally say that this person has somehow been hostile to the interests of the United States or is favoring that of another country. And then there's the technical legal sense. And one should be very very careful when using this word that you're not, you know, effectively accusing a person of a specific crime. Given that that crime is very narrowly defined. And I think there's a lot of loose rhetoric, including by people who should know better, when this term is tossed around. So it's something people should just, you know, take a step back think about it and think if that's really what we're trying to get at here or is it really something else.


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