What is treason, exactly?

I recently asked on major social networking platforms, “Did Donald Trump Commit Treason,” and got two well argued and often detailed answers: “Yes!” and “No!”

Then, I read On Treason: A Citizen’s Guide to the Law by Carlton F.W. Larson.* I discovered that both positions are wrong. And right.

Ultimately, it can not be argued that Donald Trump violated the treason clause of the US Constitution in his dealings with Russia, even if the worst that has been suggested is true. (Larson’s book came out before 1/6, so it is silent on the events of that day.) When people in the US use the term “treason” in a sentence like “Trump committed treason, lock him up!” they are (inadvertently, most of the time) referring to the Treason Clause in Article II, Section 3, of the US Constitution, which 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. 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.”

First, I’d like to point out the use of the plural in referring to “The United States.” This is how the United States were/was referred to prior to the US Civil War. After the war, it would have been “Treason against the United States, shall consist only in levying war against it.” But I digress.

Some of this is obvious, some of it not, but I learned from Larson’s book that treason must involve giving aid to an enemy of the US, in the sense that we are in a state of war. However, we have been and are now at war with multiple entities with no formal declaration of war, and haven’t been since World War II. Why war has not been declared since then is a bit mysterious, but I hear it is because it would make the US a war criminal country, since it is against convention of international law to go to war against anyone. But again I digress.

The point is, if someone adhered to (helped) the Hanoi government during the US period of involvement in the Viet Nam war, that act would be considered aiding a country at war with us, because everybody understand that a war is a war even if Congress has not declared it.

But, there are enemies, to which Larson and other legal experts apply the highly technical legal term “frienemies,” that are countries with whom we are not getting along at all, but avoid using the “w” word because we would all die in nuclear holocaust. Such as Russia. Trump did not commit treason in his dealings with Russia not because there is no declared war with Russia, but because we don’t want to openly admit we are in some sense at war with Russia. A treason charge against Trump for aiding Russia by the US Attorney General would be tantamount to declaring war against Russia, and then, we would all die in the nuclear holocaust.

If you think that Trump still could be considered to have committed treason against the United States by aiding Russia, then you would be absolutely correct. Maybe. But if you think that the US can or should charge Trump with treason based on his dealings with Russia, then you would be absolutely wrong, but NOT because we are not technically at war with Russia (see above) but because we won’t admit to being in a state of hostility against Russia. (By the way, if you want body counts, you can have body counts. Many have died in the cold war, Russia had seen to the killings of US soldiers, putting Trump in place as US President to disrupt our country has resulted in countless excess Covid-19 deaths, and so on and so forth).

In my personal opinion, the so-called “insurrection” was treasonous, even in the narrowly defined Constitutional sense. Why? It was an attempt to put an unelected dictator at the head of government, using a violent attack on a major US governmental facility. But with whom are we at war you ask? Well, the group of terrorists who carried out that attack. According to the legal arguments discussed in Larson’s book, the major terrorist groups such as ISIS and the US are functionally at war. A person who aids ISIS can be considered committing treason, if certain other things are in place.

But wait, hold on. If these insurrectionists are “at war” with the US, then they are not really committing treason, they are in essence soldiers. They can’t even be charged with criminal activity and would have to be treated as prisoners of war. That would require their immediate release because hostilities are over. But, what about those who aided them but were not with them? What about those guys??? Treason would apply.

But what does the Civil War say about this? The southern soldiers and generals who were captured during the war were treated as prisoners of war, yet the North never considered the southern states as separate. The northern legal attitude towards the south, in the eyes of Europe was (ideally) “this is not a war between belligerents so don’t aid or recognize the south.” Yet southerners were treated as soldiers. This contradiction was sometimes the focus of much attention at the time, and sometimes ignored. It never, however, went way. So, when the war ended, why weren’t the generals and soldiers and such charged with treason? Because it wasn’t really a war? No. Mainly because of the terms of surrender supplied by General Grant, and the political approach preferred by Lincoln. But what about Jefferson Davis? Why was he not charged with Treason? For that, I’ll let you read the book.

Clearly, little is clear. And, to me, one of the most interesting things about Carlton Larson’s treatment of treason is the degree to which relevant legal arguments are made, to help define treason, in settings where there was never a successful (or in some cases, even unsuccessful) prosecution. One would think that treason law would emerge as a combination of what the US Constitution says and what high court decisions include. Well, there is some of that. But a large amount of the legal conversation, opinions that help us to understand treason law in the US at the Federal level, come from decisions made, in some cases to NOT pursue a case, by US attorneys or other prosecutors, and by lower court judges wrestling with the problem.

In some cases, a treason charge was not made, or failed in court, because of the “two witness” rule or for some other technicality. But, the legally framed conversation that happened among the participants still informs us of what treason might or might not be. Not mentioned above is the idea that the treasonous person must be a citizen of the United States. Turns out, that is not strictly true. Why? Read the book. This part is really fascinating. Generally speaking, the most common outcome of a possible consideration of treason, in US history, has been to not make that charge because it is so difficult. The second most common outcome, possibly (I did not keep count) is to fail in court for similar reasons.

And, I should note, that Larson affirms that very few US Federal treason cases have been brought, and among those that were, few have succeed, because the requirements of the provision are intentionally hard to meet.

I discovered an interesting Reality vs. Wikipedia rip in the chronosynclastic continuum. According to treason expert Larson, only one person in the US has ever been put to death on a Federal treason charge, and he was not a US citizen, and did not commit treason, it was not really in the US but in a recently acquired territory, and perhaps he was not even tried in what would ultimately be considered a legal court. Nonetheless, he was hung by the neck until dead after being convicted of treason. Larson notes that nearly all discussions of treason don’t mention him, and I checked Wikipedia: Hipolito Salazar is not mentioned. However, there is a second person that Larson is mum about who was executed for Treason in the US under apparent Federal authority: William Mumford. Wikipedia says he is the only person so executed, and gives details. I suspect Mumford doesn’t count because he was tried and convicted under Martial Law by a military tribunal, which would be different than being charged with Treason under US jurisdiction and Article II, Section 3, Clause 1. If so, I say, “stand there in your wrongness and be wrong, Wikipedia!” One can argue forever as to whether Mumford was legitimately convicted of this or that law. The statement was made that he was charged and hereby convinced of Treason and he was then executed, right or wrong. But if the law that applied was not Articla II, Section 3, Clause 1, then he does not count, while Salazar does count.

In On Treason: A Citizen’s Guide to the Law Carlton F.W. Larson, a widely recognized expert on Treason law, describes and analyses every case of treason, or almost case of treason, or case of almost treason, in the US (and several cases outside that purview). The history of treason law, also covered in detail, is full of interesting (and sometimes necessary) contradictions. The origin and history of the Constitutional article itself is fascinating.

So the other day, a neighbors house was entered by hooligans, things stolen, and when the neighbors returned (they were out) they found that lots of their stuff had been trashed. Right there in broad daylight. Do you think that the perpetrators should be charged with robbery? If you have a degree in Facebook Law, you will probably swoop in on that statement and say, “why, no, it is not robbery, burglary! They can’t be charged with robbery. Burglary!” But you would be wrong in some states. What you call burglary by you is, in some states, called “housebreaking” if it happens during the day, and this happened during the day. Gotcha.

Treason is a little like that. The concept is centuries old. Most or all US states have treason laws and they vary. As noted above, the definition of Treason is not easy, since it relies on citizenship and a state of war, and also, an understanding of what “helping” the enemy was. All three of these things are tricky concepts.

I think that if you read this book, and you see someone say “so and so should be charged with treason” your immediate response will no longer be (if it was before) either “right, obviously!” or “no, that would be insurrection!”

Donald Trump committed treason in his dealings with Russia, according to me (but Larson says no) but he can’t be charged with Treason because we are not at a sufficient state of war with Russia. Both yes and no are valid answers to the question posed above, in my opinion. Not only is the answer “yes and no” more correct as a response to the question, it is a heck of a lot more interesting, if you bother to find out why. And to do so, read On Treason: A Citizen’s Guide to the Law.

While you are waiting for the book to arrive, have a look at: Treason, the Death Penalty, and American Identity also by Carlton F.W. Larson.