Treason by Any Other Name

You may have seen or heard the word treason being tossed around lately in connection with Donald Trump and his campaign and administration. While it may seem fun for some to make accusations of treason, convicting someone is no easy task. In fact, there have been about thirty cases in U.S. history, and only a dozen or so convictions, with the last in 1952.* No government officials have ever been convicted. At least a few times in the history of this country, treason charges—which have a potential penalty of death—could have been filed against the leaders of our government. So why haven’t we seen it happen?
In order to understand why treason charges and convictions are so rare, we need to understand what treason is and what it isn’t. Treason is the only crime defined in the U.S. Constitution. However, actually proving that the crime of treason has been committed is difficult.  Here’s what the Constitution states (Article III, Section III):

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.

The Congress shall have 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.

Treason isn’t simply doing something bad to your country. The Founders didn’t make it that easy. If a person is not starting a war against the U.S. or helping the enemies of the U.S. (presumably during wartime), then that person’s actions do not meet the definition of treason. Even if a person has committed a treasonable act, if they do not confess in court, the second part of the Section III (above) requires at least two witnesses to testify about the same act of treason in order to convict that person. Unless someone really did commit treason in front of more than one witness who is willing to testify against them, it’s nearly impossible to convict.

Why make it so difficult to convict someone of treason? James Madison wrote in the Federalist No. 43 (1788) that the “constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it,” was purposefully written in order to prevent “artificial treasons [which] have been the great engines by which violent factions … have usually wreaked their alternate malignity on each other.”  So there you have it, from the pen of a Founding Father and principal author of the Constitution. In plain English, they didn’t want the charge to be used for opposing factions of government to overthrow each other.

Congress expanded on this constitutional law in 1790 with the Crimes Act by adding death as the punishment for treason. The Crimes Act also added punishment for anyone who is aware that treasonous actions are being conducted by others and fails to report those actions to the proper authorities, referring to this crime as “misprision of treason.”[1]

With all of that out of the way, it’s the humble opinion of this writer that treason charges against the present administration might seem like a possibility to some, but even if they are filed, conviction is unlikely. Why? Because we’ve had some shady characters running this country, and not one has been convicted of treason. Let’s check out the record.

The first major case of treason in U.S. history featured the former Vice President of the United States, Aaron Burr—yes, the same Aaron Burr who killed Alexander Hamilton in a duel. Burr was actually tried for treason in 1807, though not for killing Hamilton. His term as vice president was over by that time, but his conspiracy to separate the western parts of the U.S. into a new country began while he was still vice president.   This being the only time in our history that a member of the executive branch of government was tried for treason, we should consider the details of the case.

Burr contacted the British Minister to the U.S., Anthony Merry, and outlined his scheme to Merry in person in 1805. We know this because Merry wrote home about it. Burr suggested that the people of the western frontier (like Kentucky) and newly acquired Louisiana Territory did not want to be part of the United States. Should the inhabitants of those territories be offered the protection and assistance of Great Britain, Burr thought they would likely rise up against the U.S., dealing a harsh blow to the new nation and helping the British. And of course, Burr was the man who could make things happen, especially if he were to be provided with a large sum of money.[2]

This wasn’t some crackpot scheme by a crazy man; Burr dragged other powerful men into his scheme. Jonathan Dayton, a signer of the U.S. Constitution and former senator from New Jersey, became a Burr ally in the project.  Burr also received a warm welcome and some support from Tennessee militia general and future U.S. president Andrew Jackson at Jackson’s Nashville home. The governor of the new Louisiana Territory, General James Wilkinson (himself secretly a paid agent of the Spanish crown), was Burr’s biggest conspirator.[3]

Perhaps Burr’s contact with Merry was sincere, or perhaps it was just a way to get money quickly for his real plans. Either way, by this time Burr may have changed things up. War with Spain had become likely, and an invasion and capture of Mexico would provide Burr with riches and glory. But history has been muddied. What we do know is that Burr did not move around with much secrecy or tact, and rumors abounded regarding his intentions. We don’t know, however, if he still planned on severing the western territories from the rest of the U.S. Jefferson believed Burr might try both—take over Mexico and add the western territories to his new empire. Either way, people knew Burr was up to something.[4]

General Wilkinson, who received intelligence from the U.S., Spain, and Burr, and who was probably privy to at least some information on the English, may have already been preparing to abandon Burr’s scheme to save his own skin. Wilkinson didn’t just abandon Burr, though. He turned on him. His actions ensured that war with Spain would be avoided and also that Burr’s conspiracy would be brought to light. Wilkinson finally went to President Jefferson with information about Burr, and Jefferson ordered Burr and his conspirators arrested on sight. When he was finally captured, Burr was brought to Richmond, Virginia, to stand trial.[5]

Not being there at the time, I can’t be sure what the national feeling was regarding Burr’s guilt.  Newspapers from the time provide little clarity since many papers ran sympathetic pieces or articles of outright support, especially in the west.  From my point of view, it would seem conviction was a possibility.  Wilkinson had already ratted on Burr to President Jefferson.  Should he testify, the courts would need only one more witness to testify to the same acts.  With so many men involved, including other important politicians, I wouldn’t think that would be too difficult.

Before Burr stood trial, however, two men caught up in his conspiracy were arrested. John Marshall read the decision of the circuit court on charges of treason against these two men:

“To constitute that specific crime… war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the Government of our country, such conspiracy is not treason. To conspire to levy war. and actually to levy war, are distinct offences.” Marshall also stated that “there must be an actual assemblage of men for the purpose of executing a treasonable design,” and that also did not exist in this case.[6]

When it came time for Burr’s trial, Marshall and the Court relied on that earlier decision and found Burr not guilty. Besides not actually being present during the alleged offence or war being levied, two witnesses could also not be produced to testify that Burr had committed an overt act of procurement of military supplies in order to wage war.[7]

Even with evidence against him, from reports of his own actions to letters and testimony from dozens of witnesses, Burr still walked away from his treason charges. This seems to establish that someone would have to attempt to levy war against the United States in an extremely overt manner in front of multiple witnesses who would be willing to testify later.

With the aforementioned definitions and decisions as a guide, we can say, for example, that Andrew Jackson didn’t commit treason by ignoring the U.S. Supreme Court decision in Worcester v. Georgia and forcibly removing the Cherokees from their land. But could Vice President John C. Calhoun’s “South Carolina Exposition and Protest” be considered treasonous? Arguing against the Tariff of 1828, Calhoun wrote that any state should be allowed to nullify a federal law that the state disagreed with, and if the federal government refused to recognize such nullification, the state could secede from the Union. President Jackson thought such sentiment was treasonous and stated he would use the force of the military to make South Carolina comply with the law.[8]

If I refer back to the Constitution, to the Crimes Act, and to Marshall’s decisions in the Burr case, we see how impossible it would have been for Jackson to get Calhoun, or anyone else for that matter, convicted of treason for writing a protest piece. But what if Calhoun’s call for secession led to action? What if South Carolina seceded and fought the U.S. military?  Of course, we don’t have to contemplate the “what if” to answer that question.

South Carolina’s threat of secession simmered for the next few decades. When Abraham Lincoln was elected at the end of 1860, South Carolina wasted no time actually seceding from the Union.  President James Buchanan would remain in office until the beginning of March, when Lincoln would take his oath of office. In the meantime, South Carolinian rebels forced the American garrison in Charleston to retreat to Fort Sumter in the harbor.  The rebels didn’t attack the fort, but they did attack a naval ship intending to supply the fort. The ship retired, and Buchanan did nothing.[9]

Buchanan’s inner circle of informal advisers during the remaining months of his presidential term were men of the South. Jefferson Davis, a senator from Mississippi and soon to be the only president of the Confederate States of America, was an advisor.  Robert Toombs, a senator from Georgia and the first CSA Secretary of State, and John Slidell, a senator from Louisiana and the CSA’s choice to represent them in France, both had Buchanan’s ear.[10] As more states continued to leave the Union (six more by February 1, 1861), Buchanan still did nothing. One of his biographers wrote, “Buchanan came closer to committing treason than any other president in American history.”[11]  It wasn’t that Buchanan didn’t know what to do. He didn’t think his hands were tied. Nor was he paralyzed by inaction. Buchanan sympathized with the Southern states and with slavery. His inaction allowed time for the secessionists to establish their government and their military.

Could Buchanan have been tried for treason?  The New York Times seemed to think that Buchanan was guilty of the crime. In an article published on December 21, 1860, they wrote,

“Every thing in the recent conduct of JAMES BUCHANAN has indicated that he was in close alliance with the Conspirators against the Union. All his official arrangements have looked towards this end….We do not forget that two months before the election, the Charleston Mercury…assorted [sic] that if South Carolina would secede before the 4th of March, she would meet with no resistance, — adding, with a significance which is now explained, ‘We know what we say.’”[12]

But Buchanan was never tried, let alone convicted.  I couldn’t tell you why.  Maybe it was because the nation was focused on the war. Maybe it was because it wouldn’t have changed the course of events. Others knew that treason was afoot, though, and weren’t afraid to call it out. David A. Smalley, a federal judge in New York, while instructing a grand jury in January 1861, stated, “It is well known that war—civil war—exists in persons of the Union.” He continued:

“That persons owing allegiance to the United States have confederated together, and with arms, by force and intimidation, have prevented the execution of the Constitutional acts of Congress: have forcibly seized upon and hold a custom-house and post-office, forts, arsenals, vessels and other property belonging to the United States, and have actually fired upon vessels bearing the United States flag and carrying United States troops. This is a usurpation of the authority of the Federal Government; it is high treason by levying war.”[13]

Yet no one was convicted of treason. Even Jefferson Davis, who had the charge brought against him, was not convicted. In fact, President Andrew Johnson issued a general pardon and amnesty for the offense of treason in 1868.

One last mention of possible presidential treason has to do with Richard Nixon. Newly revealed information shows that Nixon sabotaged talks in 1968 that may have led to an early peace in Vietnam. Apparently, this was done to ensure his opponents would not receive an edge in the upcoming election.[14] These actions, even if discovered at the time, most likely wouldn’t have brought up conversation of treason. What does Nixon have to do with this conversation then?

Nixon, most likely, could have been charged with violating the Logan Act. Passed in 1799 (and updated since), the Logan Act reads:

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”[15]

The law is rarely used, and no one has ever been prosecuted successfully under the law,[16] so does any of this matter? I believe it does. Much like no one was entirely sure of what Nixon was doing, we aren’t entirely sure exactly what happened between the Trump camp and Russia, if anything. Opinion writers, talking heads, even politicians, not to mention citizens around the country, wonder if Trump or any members of his administration might be tried for treason if and when connections are discovered.

Treason is a serious accusation, though one that people may not completely understand, in the legal sense. I’m not a constitutional or legal scholar, but looking back at the historical record, it appears there’s not even a slim chance that treason charges would be appropriate in our present crisis. The words “in levying War” seem to have taken on meaning to be in an actual, physical confrontation with the United States, and no one has committed such an act. Even the lesser crime of misprision of treason may be difficult to pin on anyone, depending on the information that comes out. And so we have the Logan Act.

Charging Michael Flynn under the Logan Act has already been much discussed in the media (if you don’t believe me, search “Logan Act” in Google News), with people arguing for both sides. It’s not a certainty that the law could, or even would, be used to attempt to prosecute anyone for any Russian collusion, and depending on the extent of interference and assistance from the Trump side, other laws may prove more appropriate. To those calling for treason, however, I’d suggest abandoning that charge to avoid the risk of overstating the possible crimes and detracting from the seriousness of what has been done.

* In Kawakita v. United States, an American-born man with dual citizenship in the U.S. and Japan (his parents were born in Japan) was convicted of treason. He was stuck in Japan following the start of World War II. During the war he worked for a private company which produced war materials in Japan. American prisoners of war were forced to work for the same company and were ruthlessly abused. It was alleged that Tomoya Kawakita took part in the abuse. For more information on the case, see Kawakita v. United States.  Kawakita’s sentence was eventually commuted and he was deported to Japan.
[1] An Act for the Punishment of Certain Crimes against the United States, http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=235
[2] Walter Flavius McCaleb, The Aaron Burr Conspiracy: A History Largely from Original and Hitherto Unused Sources, New York: Dodd, Mead, and Co., 1903; pages 20-22.
[3] That Wilkinson was on the Spanish payroll was only discovered after his death.  For his story, I recommend reading An Artist in Treason: The Extraordinary Double Life of General James Wilkinson by Andro Linklater.  Dayton was arrested on treason charges, but never went to trial.
[4] McCaleb, 36; and “From Thomas Jefferson to United States Congress, 22 January 1807,” Founders Online, National Archives, last modified December 28, 2016, http://founders.archives.gov/documents/Jefferson/99-01-02-4925.
[5] Edward Channing, A History of the United States: Federalists and Republicans, 1789-1815, v.6, New York: The MacMillan Co., 1920; pages 341-342.
[6] T. Carpenter, The Trial of Col. Aaron Burr on an Indictment for Treason: Before the Circuit Court of the United States, Held in Richmond, (Virginia), May Term, 1807…, Volume 3, Washington, DC: Westcott & Co., 1808; pages xx-xxi.
[7] Channing, page 342.
[8] Interestingly, Calhoun penned the argument anonymously near the end of his term under President John Quincy Adams.  He hoped the incoming President, Andrew Jackson, under whom Calhoun would also serve as VP (until resigning) would agree with his stance.  Cody Carleson, “This week in history: John C. Calhoun and the Nullification Crisis,” The Deseret News, December 17, 2012.
[9] New York Times, “High Treason; Important Charge to the Grand Jury by Judge Smalley,” January 15, 1861, http://www.nytimes.com/1861/01/15/news/high-treason-important-charge-to-the-grand-jury-by-judge-smalley.html and The White House, “James Buchanan,” https://www.whitehouse.gov/1600/presidents/jamesbuchanan
[10] Jean H. Baker, James Buchanan, New York: Henry Holt & Co., 2004; page 133.
[11] Baker, page 142.
[12] New York Times, “The Treason Consummated,” December 20, 1860, http://www.nytimes.com/1860/12/21/news/the-treason-consummated.html
[13] New York Times, “High Treason; Important Charge to the Grand Jury by Judge Smalley,” January 15, 1861, http://www.nytimes.com/1861/01/15/news/high-treason-important-charge-to-the-grand-jury-by-judge-smalley.html
[14] John A. Farrell, “Nixon’s Vietnam Treachery,” New York Times, December 31, 2016, https://www.nytimes.com/2016/12/31/opinion/sunday/nixons-vietnam-treachery.html
[15] Cornell University Law School, “18 U.S. Code § 953 – Private correspondence with foreign governments,” https://www.law.cornell.edu/uscode/text/18/953
[16] Clare Foran, “What Is the Logan Act and What Does It Have to Do With Flynn?” The Atlantic, February 15, 2017, https://www.theatlantic.com/politics/archive/2017/02/logan-act-michael-flynn-trump-russia/516774/
Image credit: from the New York Public Library

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