Tag Archives: Treason

What is Treason, Exactly? (And has it been committed by anyone you know recently?)

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.

The Nunes Memo is out, here it is

This is a memo from the White House to Devin Nunes telling Nunes it is OK to release the memo, followed by the memo itself.

(At this point you may want to know about this guy, the person running against Nunes for his seat in the House.)

The memo is from the staff of the House Intelligence Committee to the majority (Republican) members of that committee, with the subject line “Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation.” Continue reading The Nunes Memo is out, here it is

Taking down New Orleans’ monuments: Not what you think

In The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction, Charles Lane describes the events — several years of events including the Civil War and the assassination of Abraham Lincoln, though only briefly — that led up to the Colfax Massacre. What happened was incredibly complex and only a very detailed description can do justice. But, I’ll try to summarize it his way: A war was fought over slavery, and slave holders lost. A conflict then ensued between the new, victorious, anti-slavery government and the racist pigs of the Confederacy, who insisted on repressing blacks and, essentially, emulating slavery in any way possible. In Louisiana, some two thousand blacks were killed over a period of time, maybe more, between the Civil War and the Colfax Massacre, and another 150 on that day. The Colfax massacre was the largest single one-event racial killing event in the United States. The exact number killed is uncertain, but it is known that most of those killed had been captured by white supremacists who had formed an illegal militia. The prisoners were then summarily executed. Many, possibly most, of the bodies were tossed in the river.

This is how Democrats and Republicans used to do politics in the South. (Reminder: In those days, the Republicans were the good guys, the Democrats were the bad guys, and in Louisiana, of where we speak now, that is not an oversimplification.)

The Colfax Massacre has a lot more to it than that, and The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction gives those details, including the famous United States v. Cruikshank ruling by the Supreme Court. It occurred on April 13th 1873. But it is an event that ocurred a little while later, on September 14th, 1874, that I’d like to draw your attention to. It was known as the Battle of Liberty Place.

The back and forth between Democrats and White Supremacists on one hand and Republicans and Free Blacks on the other hand had involved military and paramilitary battles, individual homicides, massive voter intimidation efforts, and so on. The Colfax Massacre was a key point in that series of events. The Battle of Liberty Place was a continuation. Five thousand white supremacists, organized as the “White League” (a paramilitary group that was part of the Democratic Party) fought the New Orleans police and the state militia. Federal troops eventually showed up to end the fight. The battle was over who should be placed as governor. There was one election but there were two sets of vote counters, the white supremacists on one hand and those representing the Federal Government and the state on the other.

Caesar Antoine (1836-1921). US Federal Army Capitan. Multilingual, son of Creole war of 1812 veteran (father) and West Indian woman. Well respected barber. Served as a delegate to the Louisiana Constitutional Convention of 1867-1868 where he made significant contributions. Served in the state Senate and elected Lieutenant Governor in 1872. Later, he was president of the Cosmopolitan Life Insurance Company. Still later, as white supremacists gained more power and ended the ability for southern blacks to be elected, he worked on racial discrimination issues.
Unlike the Colfax event, only a few dozen were killed, and the deaths were more even on the two sides.

Years later, in 1891, a monument was erected at the site of the Battle of Liberty Place. It was erected at the time to commemorate the white supremacists and their attack on the Republicans and government, and to reify their position that the election had gone their way (it had most definitively not). Eventually, in 1932, an inscription was added to the marble obelisk, in line with the original meaning of this edifice. It read:

[Democrats] McEnery and Penn having been elected governor and lieutenant-governor by the white people, were duly installed by this overthrow of carpetbag government, ousting the usurpers, Governor Kellogg (white) and Lieutenant-Governor Antoine (colored).

United States troops took over the state government and reinstated the usurpers but the national election of November 1876 recognized white supremacy in the South and gave us our state.

That monument is one of the monuments that has been removed in New Orleans in recent days. It is a monument to the murderous repression of African Americans in Louisiana over decades of time following the loss by the Confederacy of the Civil War.

You hear talk about these monuments, about how they are Civil War monuments and how they commemorate the dead on both sides. This monument was clearly erected to celebrate an event that happened many years after the Civil War was over, and it was erected to commemorate a failed paramilitary insurgency by self described white supremacists.

Later, an interpretive marker was put up near the monument. This was in 1974. It read:

Although the “battle of Liberty Place” and this monument are important parts of the New Orleans history, the sentiments in favor of white supremacy expressed thereon are contrary to the philosophy and beliefs of present-day New Orleans.

That was nice to do that. But probably not enough. The monument was moved in 1993, to a warehouse, with the diea of eventually putting it in a museum. But the idea of putting giant monuments nobody knows what to do with in a museum is easier said than done. No museum in its right mind would accept such an artifact. So, it was placed in a new location, less central, still in New Orleans. At that time, the original inscription was replaced with this:

In honor of those Americans on both sides who died in the Battle of Liberty Place … A conflict of the past that should teach us lessons for the future.

Davidson Bradfute Penn (1835-1902). Probably a slave owner. Captured during the Civil War. Nothing else notable. Oh, he was the fake Lieutenant Governor for Louisiana for a while.
Which, of course, is a bald face lie.

And that is the history of what would by 1860 become the Republican Party and the coalition of Democratic abolitionists and others in the North, on one hand, and the would be Confederates on the other, from the 1830s to the war itself. To a Democrat, compromise looked like making the other side do what you want and screaming bloody murder when that did not happen. To the Republican coalition, led eventually by Abraham Lincoln, compromise looked like agreeing to do much of what the opposition insisted you do, red-faced and clench-fisted, tantrum enthralled, and violent, and hope they don’t hit you. When the Republican coalition looked like it might gain sufficient power to lead the country out of absurd treasonous states rights and slavery, the south violently attacked the north and started the war. After the Union destroyed the South in a war the South would not allow to end until the maximum number of their own people, and a good number of Yankees, were dead on the battle field, the south continued to kick and scream and whine and fight and punch and shoot and kill.

This is a monument to that. And when the monument was being dismantled a few days ago, threats to shoot or lynch those removing the monument were made. Representative Karl Oliver (koliver@house.ms.gov) said this:

“The destruction of these monuments, erected in the loving memory of our family and fellow Southern Americans, is both heinous and horrific. If the, and I use this term extremely loosely, “leadership” of Louisiana wishes to, in a Nazi-ish fashion, burn books or destroy historical monuments of OUR HISTORY, they should be LYNCHED! Let it be known, I will do all in my power to prevent this from happening in our State.”

The other monuments in question were of Jefferson Davis, General P.G.T. Beauregard, and Robert E. Lee.

Davis was, of course a war criminal for a number of reasons, not the least of which was Andersonville. Lee had nothing to do with New Orleans. Beauregard was a native of Louisiana but his involvement in the Civil War included that famous moment: Attacking Fort Sumter to begin the war. Otherwise, he fought in and around Virginia and the Carolinas, but never in Louisiana. After the war he got a job as the supervisor of the Louisiana Lottery. So, maybe they should have kept that one statue up. For good luck.

James Comey’s Last Day at the FBI: November 9th

You all know what James Comey did. He sent a letter to Congress that will undoubtedly serve to change the vote distribution among the leasing candidates for president enough to possibly change the outcome of the United States election of the President of the United States.

Such an act is treasonous, and had a private citizen, especially a brown one or one with “Hussain” in his name, done something to affect the election to this degree, the FBI would be on that citizen like ugly on an ape. But, James Comey is the head of the FBI, he’s white, male, and a Republican. Also, there is an argument that could be made that he had to send this letter.

The argument that he should of is fallacious. The only reason to have done so is that he, James Comey, can not be seen as having done something more wrong (as opposed to less wrong) in the final analysis of the Clinton Email Tragicomedy. So, it was an utterly selfish act on his part, and does not excuse him. Indeed, it makes what he did worse.

President Obama will be fully justified in relieving Director Comey of his duties. People at his level of government have been asked to resign for less. But, since Comey’s act serves to hurt the Democratic candidate, the one President Obama has been stumping for, he can’t do that before the election.

And that is why November 9th will be James Comey’s last day in public service. Then, he can go and write his book.