CDZ Is it treasonous?

Discussion in 'Clean Debate Zone' started by Xelor, Jul 12, 2017.

  1. Xelor
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    Xelor Gold Member

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    At a dinner party last fall, I asked a friend for her thoughts on whether the "Russia" investigation might lead to charges of treason. Along with her informed opinion -- she's a practicing attorney and professor law -- came a promise to send us a reading list we might use to become somewhat informed (she rightly adjudged none of us would pursue actual legal scholarship) and decide for ourselves.

    In providing the reading list, my friend noted that while there are many law school classes that address the legal issues related to terrorism, nowhere does there seem to be a class-or publication for that matter-dealing with what she referred to as "National Security Criminal Law," a legal topic that includes such things as treason, espionage, disclosure of subversive and/or classified information a la WikiLeaks, sabotage, and terrorism. That was quite surprising to me, but as a professor, it's no surprise she commented thus. Be that as it may, I sullied forth, looking at what is. What follows summarizes what I found and a few thoughts (albethey formed some months ago) about it. (The reader will find the documents of that reading list at the links in this essay and/or notes to it.)

    I began my journey of discovery with the Constitution, which of treason 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.

    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.​

    From there, I came across Justice Marshall's remarks in Ex Parte Bollman:

    Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution [...] must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.​

    The statutory prohibition on treason appears at 18 U.S.C. § 2381, supplementing, as Marshall indicated fitting, the Constitution:

    Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.​


    Treason
    The crime of treason therefore has a few main elements. First, one may commit treason by supporting an enemy of the United States, or, alternatively, by undermining the United States without actually supporting with a specific enemy. Either action is sufficient. This definition includes activities of the typical turncoat, but also extends to any person or group of people rebelling or raising arms against the United States.

    Second, treason has an essential mens rea component, namely, the specific intent to betray one's country. This specific intent to betray must be proven. Although difficult to prove in its own right, it is possible to show that a defendant acted with the specific intent to betray by relying on the common law inference that a person may be presumed to intend the natural consequences of his or her actions. Thus, if one intends to turn coat and fight against the United States, or intends to join a rebellion against the United States, that person can be shown to have the specific intent to betray the United States. A person must owe an allegiance to the United States in order to betray the United States, but citizenship is not the only form of allegiance. In some older cases, the parameters of those who owe allegiance to the United States included domiciled aliens. [1] In a state treason case, in which the Commonwealth of Virginia tried and convicted a nonresident of Virginia for treason, Virginia courts found allegiance to be owed by any person in the territory relying on the protection of its laws.

    However, under the Constitution, it is not sufficient to simply levy war against the United States or to give aid and comfort to its enemies, even with the specific intent to betray the United States when allegiance is owed. There must also be an "overt act"-the third essential element of treason. The requirement of an overt act is a familiar one in criminal law; conspiracy charges frequently require not just an agreement to do an illegal act, but at least one act in furtherance by at least one member of the conspiracy. The idea is that there must be more than the mere intent to betray one's country-otherwise treason could be a simple thought crime. The act itself must be directed at the objective of treason, which can be proved only one of two ways. The first is testimony by two eyewitnesses to the same overt act; one witness each to two separate overt acts will not do. The second is a confession given in court. A confession to police, or even to national media, would technically not suffice.

    The evidentiary limits on treason are a reaction to the extensive use of charges of treason in Britain to squelch political enemies, by claiming that opposing political views were somehow unpatriotic. In particular, though the U.S. Constitution's formulation of treason is verbally quite similar to the British formulation, it omits an important part. In British law, one could be found guilty of treason for "compassing the death of the king."' This was, essentially, a thought crime. And it could be completed a number of ways, including metaphorically, by wishing some harm to Britain." Over many centuries the British used charges of treason to destroy political rivals. The Framers of the Constitution sought to limit the use of politically motivated treason trials by limiting the definition of the crime, requiring nearly impossible-to-obtain evidence, and putting their proscriptions in the Constitution, where they could not be modified by statute. [2]

    Because of the combination of the hefty constitutional requirements of treason and the seeming reluctance of a democracy to punish persons for their political motives, treason indictments have been extremely limited in the history of the United States. There are cases of U.S. nationals joining foreign armies and giving other kinds of support to foreign countries during a time of war, particularly during World War II, when the United States was most active in pursing treason cases. In U.S. v. Kawakita [1], the U.S. Government accused Tomoya Kawakita, a Japanese American dual national living in Japan at the time World War II broke out who became a translator for the Japanese, of visiting extreme savagery on American prisoners-of-war, and ultimately convicted him of treason and sentenced him to death. [3] President Eisenhower commuted the death sentence to life in prison. President Kennedy, however, was disturbed by the implications of convicting a dual-national of Japan of treason, and so he deported Kawakita to Japan. [3]

    There are also a few cases from the World War II era that concern U.S. nationals who were found to have supported enemy nations by disseminating information meant to demoralize Americans or exalt America's adversaries. Examples include the famous indictments of those like Mildred Gillars or "Axis Sally," an American employed by the Third Reich to broadcast Nazi propaganda during World War II to U.S. soldiers (including talking about American mothers crying for their dead sons), Robert Henry Best and Douglas Chandler, other American citizens who became Nazi-employed English language propagandists-cases which came to collectively be known as "The Broadcast Cases."' [4] Following those cases, there has been one indictment for treason in the past sixty years: an indictment for Adam Yahiye Gadahn, an American member of al Qaeda who has created Internet video programs exalting the terrorist organization and declaring that the United States should be the subject of violent attack. [5]

    Notwithstanding the high bar posed by the evidentiary requirements of treason, the United States has been reluctant to try or punish treason even in cases in which proof can be established. Pardons or charges on alternate grounds addressing the violence of the crimes, rather than the political motivation to betray one's country, have been common. For example, after the 1794 Whiskey Rebellion, President George Washington pardoned all members of the rebellion in an attempt to undercut support for hardliners against the new Republic. Likewise, in the aftermath of the Civil War, not a single member of the leadership of the Confederacy, nor any soldier who fought for the South, was tried or punished for treason. President Andrew Johnson issued a blanket amnesty in favor of restorative justice with the hope that the Reconstruction of the South would heal a divided nation. As noted above, some of the dual nationals that faced successful treason prosecutions after WWII, the time at which treason prosecutions may have been most active, were pardoned and deported from the United States. John Walker Lindh, the American Taliban who left the United States to fight in Afghanistan and ultimately pitted himself against U.S. forces, also was not tried for treason but for other crimes against the United States (see the plea agreement).​

    Rebellion, Sedition, and Other Treason-related Crimes
    Treason prosecutions are thus very rare. Yet treason itself is not the only crime in its genus. Chapter 115 of the United States Code, entitled "Treason, Sedition, and Subversive Activities," contains a number of related crimes. Treason appears first in the chapter as 18 U.S.C. § 2381, followed by "Misprision of treason," 18 U.S.C. § 2382, a crime punishing any person owing allegiance to the United States who knows of a treasonous plot or act of plot but does not report it. Misprision of treason is punishable by up to seven years in prison and has been punishable in the United States since the first meeting of the U.S. Congress criminalized it at the same time as treason.

    Seditious conspiracy appears at 18 U.S.C. § 2384 and is punishable by up to twenty years in prison. The statute, insofar as it makes proscript two or more persons who "conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof'," is a provision closely tracking what treason itself proscribes, albeit, however, with a focus on punishing conspiracy to commit treason and, importantly, allegiance to the United States is immaterial to its applicability.

    Conspiracy crimes have been called the "darling of the prosecutor's nursery" by revered judge Learned Hand because of their prosecution-friendly provability. Perhaps for this reason, seditious conspiracy enjoys slightly more use than the other statutes we have reviewed. The crime of seditious conspiracy was challenged in United States v. Rahman for mimicking treason without requiring its onerous two-witness proof. The U.S. Court of Appeals for the Second Circuit summarily rejected the claim that seditious conspiracy is essentially treason by another name, a crime written expressly to get around the prosecution difficulties of treason. The court found that seditious conspiracy and treason differ not only in name and in stigma, but also in essential elements and punishment. Treason is a substantive crime, whereas seditious conspiracy, like all forms of conspiracy, criminalizes the agreement to commit crime, but not the substantive crime itself, with the hope of interdicting the object crime before it is accomplished.

    The next group, 18 U.S.C. §§ 2385-86 [6], covers "[a]dvocating overthrow of government" and "[r]egistration of certain organizations." 18 U.S.C. § 2385, known as the Smith Act, was a particularly important statute, with its own dedicated prosecution section within the U.S. Department of Justice. It provides:

    Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

    Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof,

    Shall [be subject to up to twenty years in prison] and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
    Conspiracy to do the same is also prohibited and subject to the same penalties under the section.

    The Smith Act precipitated one of the few periods in U.S. history where politically-motivated crimes were zealously prosecuted. However, as the fervor of this period died down and things like "McCarthyism" came and went in shame, the courts started to limit the application of the provision. In Yates v. United States, the U.S. Supreme Court ruled that the First Amendment protects radical and reactionary speech, unless such speech presents "a clear and present danger " of imminent incitement. In Scales v. United States, the Supreme Court found that the Smith Act should not be interpreted to proscribe mere membership in a radical or violent organization, but required active membership with knowledge and work to achieve the illegal aims of such a group. Such decisions show how 1st Amendment considerations in the United States might make us culturally reticent to use (or not) criminal statutes that rely on political motives. [7]​

    Conclusion:

    While treason is an evocative and important criminal concept, it appears rarely in the United States history. Normatively, it is worth legal professionals determining whether treason and sedition proscriptions/code sections are aptly used. Should new criminal offenses be invented, or should current offenses be modified? Are traitors being tried for lesser crimes to avoid the two-witness rule? Is there normative value to calling a person a traitor and achieving a hard won conviction on a treason-related crime? Obviously, as a business management professional not legal philosopher, I'm not qualified to answer those questions, but it's clear given the dearth of coverage given them, someone needs to.

    On the central question of whether the new revelations about the Trump, Jr. email, I suspect that his and his cohorts' actions are unlikely to meet the standard required for them to be legally adjudged treasonous. Might they be criminally something less than treason? Well, that seems quite plausible, but I cannot with portfolio speak to the probability of the possibility. It's clear that there's certainly on the matter division among legal scholars. Having read the legal thought and statutes pertaining to treason, I fully understand how and why that is.

    What lesser offenses might Trump campaign/Administration players have committed? Well, sedition, conspiracy to commit sedition, misprision of sedition or conspiracy to commit it, or federal election law violations. [8]

    Criminal liability notwithstanding, the released emails compound the Trump Administration's political liability deriving from the ongoing "Russia" investigation. The behavior and thought indicated in the email thread was "sketchy" to say the least for Trump, Jr. et al had a Russian connection from square one. They knew, or should have known, meeting with that individual was a terrible idea. Even if it turns out their actions toed the right side of the legal line, surely they see now the political fallout from having undertaken it wasn't worth it.


    Notes:
    1. See United States v. Kawakita.
    2. The bibliography to this work itself forms an excellent reading list into the jurisprudence of treason.
    3. "POW Camp Atrocities Led to Treason Trial"
    4. See the following:
    5. See also: Holder, Attorney General, et al. v. Humanitarian Law Project et al in which the SCOTUS held that giving "material support" to an adversary organization/entity, even if that support is just helpful speech, can be outlawed. While the Supreme Court seemed to protect the right to independently express approval for such organizations' existence, they upheld the illegality of being party to disseminating information that organization may aim to release.
    6. 18 U.S. Code § 2385 - Advocating overthrow of Government
      18 U.S. Code § 2386 - Registration of certain organizations
    7. The SCOTUS is clearly aware partisanship exists. Equally clearly, the SCOTUS deplores its infusion into jurisprudential matters.
    8. I have not researched the case law/precedents and scholarly thought pertaining to federal election law. If I bother to do so, I suspect it'll take quite some time because I don't expect it has the same paucity of rigorously conceived content that treason and sedition do. But, hey, if I find myself obliged to so, I may luckily be wrong and it does???
     
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    Last edited: Jul 12, 2017
  2. task0778
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    task0778 Silver Member Supporting Member

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    Nobody is going to be charged with treason. Nobody. It's a ridiculous and baseless idea.
     
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  3. WillHaftawaite
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    WillHaftawaite Freshman Moderator Staff Member Supporting Member

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    any chance of getting the Cliff Notes version?
     
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  4. flacaltenn
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    flacaltenn USMB Mod Staff Member Gold Supporting Member

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    ALTHOUGH -- this tutorial on treason COULD come in handy should the folks in the Deep Intelligence Anti-Trump insurgency that were leaking classified data for months are caught and prosecuted and sentenced... I'm sure co-opting the Intel Services to spy on political opposition and force a coup is LIKELY treason...
     
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  5. Darkwind
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    Darkwind Gold Member

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    While I was reading this, I was thinking that a lot of this is very germane to the background and recent actions of Hillary Clinton. However, I knew that by the end of this you did all of this research not for a better understanding of what would constitute treason, but how it could be used against Donald Trump. There was nary a word about Clinton. I was not surprised or disappointed.

    Tell Me something. In your research, did you run across any specific information in which political parties are equated to a nation? If so, I would be interested in such information.
     
  6. Xelor
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    Xelor Gold Member

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    That is the "Cliff Notes" version. You'd realize that were you to have clicked on the links and seen just how much reading was involved.
     
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  7. WillHaftawaite
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    WillHaftawaite Freshman Moderator Staff Member Supporting Member

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    Too bad.

    But if I wanted to read a book, I'd pick one out of my library, and be sitting out in the sun, getting a tan
     
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  8. IsaacNewton
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    IsaacNewton Gold Member

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    Aiding a hostile foreign government to fix a US presidential election? Not treason?

    It was treason to every American up until November 8, 2016. At which time for 20% of the population it went from being treason to "I don't want to hear about it". You don't have to wonder how democracies fail, you are seeing it in living color. A small portion of human beings willfully follow a charismatic leader even it is Satan. And they'll defend Satan to the death.

    It is the classic cult of personality. They don't care about the issues or the country, they only care about their dear leader.
     
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  9. Xelor
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    Xelor Gold Member

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    OT:
    You and I clearly have differing views of what constitutes a book. The content in the OP, which, absent the notes to it, is ~2800 words long, should take the average reader ~13 minutes to read. Books, none of which can be read in 15 minutes, are among the things I read to compose it. Moreover, though one of my section heads mentions rebellion, in the end, I decided to forgo discussing rebellious activities. I should have changed the section heading to reflect that fact, but I mistakenly did not.
     
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  10. WillHaftawaite
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    WillHaftawaite Freshman Moderator Staff Member Supporting Member

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    IN case you didn't get the hint...


    it was far too long for a message board post, IMO
     

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