Ilya Schwartzburg

An Overt Act: The Rise and Fall of American Treason Jurisprudence


Section 1

When you look over the United States Constitution, at first it all hangs together. Article I is about the legislative branch; it lays out the powers of Congress, its divisions (the Senate and the House of Representatives), and the elections and requirements of its members. Article II goes on to map the executive branch with the President at its head and list his (presumably also her) various powers. Then you get to Article III and you see the judicial power given to the Supreme Court and you wonder, wait, aren’t there other federal courts? And then you realize that Congress can establish inferior courts if and when it chooses to. And then you see something about treason and move on to Article IV which talks about the states.

But what is up with that treason section? Somehow it stands out. Probably because the rest of the document—and it is not a long document—deals with establishing the structure of government and its powers and limitations. The treason section, though, just lays out the crime of treason. We can infer that the framers of this Constitution thought treason was important enough to the foundation of this republic to include it here. But everything else in the document either lays out the structure of government or institutes vague limitations and requirements like “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Maybe it was a drafter’s error? Or more likely the framers decided at the last minute that they couldn’t trust Congress to determine what treason was and how it should be tried, so they tacked a definition of it on to the section talking about courts. Regardless of their motivations, though, treason stands out as the only crime defined by the Constitution itself.

Here is the text of Article III § 3:

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.

There are a number of things to ponder here. One simple one is that though the rest of the Constitution is easily comprehensible to a modern reader because it was written so straightforwardly, this clause uses obscure legal jargon like “attainder” and “work Corruption of Blood.” So my first task is to expound.

The first paragraph defines the crime. The clause lists only two kinds of action which will constitute treason: levying war and adhering to the enemy. Levying war implies fighting in an enemy army or attacking the U.S., though it is unclear whether that means attacking civilians, soldiers, or property or attacking one state exclusively. Adhering could be pretty expansive, but is qualified as giving aid and comfort. As we will see later, aid and comfort are also pretty expansive, but presumably they mean actively helping the enemy. The next sentence gives some procedural safeguards that seem pretty strict. In order to convict anyone of treason, the State needs to provide two witnesses who can testify to the “same overt act,” presumably an act that is overtly treasonous. In the most obvious cases that would mean two soldiers, let’s say, who recognize their former friend coming at them with a bayonet or two people standing in the hallway who see the accused hand John Wilkes Booth a gun before Booth runs into the President’s box at the theater. Of course, if the traitor confesses, we take his word for it, though perhaps we make him confess in court to make sure no one beat it out of him.

The second paragraph deals with punishment. One may think that giving Congress the power to fix the punishment for treason is redundant in light of Article I (“All legislative Powers herein granted shall be vested in a Congress”), but perhaps the Framers did not want judges to declare the punishment if Congress were silent. So what does “attainder” mean? Well, Article I, Section 9, paragraph 3 states that "No Bill of Attainder or ex post facto Law will be passed." A bill of attainder was an act of a legislative body like Parliament that took away the title of nobility from (or generally inflicted a penalty on) a specific person convicted of a felony or treason and then confiscated his or her property for the Crown. Since bills of attainder (and titles of nobility for that matter) were prohibited earlier in the Constitution, it seems that Article III simply states that Congress cannot confiscate the traitor’s property—at least not permanently, since it seems that they can before his death. The prohibition against “Corruption of the Blood” is a corollary, prohibiting the practice of English common law according to which the traitor’s children can also be disinherited from title and property.

As you may have noticed, my explanation of the second paragraph required a lot of historical background and extrapolation of what the heck the Framers meant. This paragraph uses terminology which was becoming outdated even at their time in light of the republican, post-feudal framework they themselves were establishing. Why would they use such terms? The answer is that this section was not written by the Framers qua political philosophers who wrote the rest of the Constitution, but rather by the Framers qua lawyers. After all, this definition of a crime sounds more like a law than anything else in the document. It doesn’t describe a framework for some novel experiment in rational political self-governance, but rather prohibits specific limited acts in certain circumstances and introduces some limitations to the enforcement of that prohibition. Such prohibitions have been law since Hammurabi’s code, since time immemorial, but they are not what the Constitution is primarily concerned with.

The disconnect between this type of law-making and that of the rest of the Constitution is not a coincidence. In fact, the Treason Clause is hardly novel. It takes almost all its phrases and wording from two English statutes1: The Treason Act of 1351 (25 Edward III) and the Trial of Treasons Act of 1696 (7 William III). The former was passed in order to codify the common-law crime of “high treason.”2 It was passed by King Edward III in the middle of the Hundred Years’ War, when he badly needed the nobility on his side. Previous kings and their courts had routinely convicted nobles on trumped-up or exaggerated charges in order to confiscate their estates and beef up the Crown’s war-strained treasury. In exchange for loyalty, support and taxes King Edward III bound himself and the Crown to charging treason only on the following terms:

ITEM, Whereas divers Opinions have been before this Time in what Case Treason shall be said, and in what not; the King, at the Request of the Lords and of the Commons, hath made a Declaration in the Manner as hereafter followeth, that is to say; When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen or of their eldest Son and Heir; or if a Man do violate the King’s Companion, or the King’s eldest Daughter unmarried, or the Wife [of] the King’s eldest Son and Heir; or if a Man do levy War against our Lord the King in his Realm, or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere, and thereof be probably [alternatively read: provably] attainted of open Deed by the People of their Condition: . . ., and if a Man slea the Chancellor, Treasurer, or the King’s Justices of the one Bench or the other, Justices in Eyre, or Justices of Assise, and all other Justices assigned to hear and determine, being in their Places, doing their Offices: And it is to be understood, that in the Cases above rehearsed, that ought to be judged Treason which extends to our Lord the King, and his Royal Majesty: . . . (emphasis added)

Thus the acts that constitute treason included the two which were ultimately listed in the Constitution, levying war and adhering to the enemy, giving aid and comfort. On the other hand, the Framers also notably left a whole lot out. The text above is missing a couple of the original forms of treason, since this is the version of the statute still on the books in England and it has been amended a couple of times, removing certain crimes from the description of treason. Originally, there were six ways to commit high treason:

  1. to compass or imagine the death of the king, queen, or eldest son and heir,
  2. to have intercourse with the king’s wife or daughter or his eldest son’s wife and thus to attack the line of succession by possibly impregnating them with one’s own seed and hence usurping the Crown through one’s lineage,
  3. to levy war against the king in his realm3,
  4. to adhere to the enemy in the realm or elsewhere,
  5. to counterfeit, thus infringing on a classic royal right that partly defined sovereignty,
  6. and to kill certain of the king’s high officers.

The punishment for these acts was to be drawn and quartered4. The Framers, it seems, eliminated both those forms of treason which were inappropriate to a republic (those involving the king and his family) and those most susceptible to abuse, like imagining the death of the head of state. Also, as I will discuss, though the Framers did not demand proof of treasonous intent, they did choose to leave out the acts most likely to be construed as treasonous whether or not the perpetrators knew or should have known them to be. According to a plain reading of the English statute, one can presumably charge someone who killed a judge with treason even if he intended to kill the man for some petty reason, and had no intention of attacking the state or sovereign. Though this rule is strict, one could reasonably justify it by extending the common old maxim that an attack on one of the king’s officers is an attack on the king himself. This reinforced the king’s sovereignty through his representatives. However, the Framers did not go this far. They chose to adopt only the two acts that seem to show a willful intent either to commit treason or at least to do something they could have reasonably known would result in harm to the state’s sovereignty: fighting with and helping the enemy.

As we can see, the Constitutional definition is shorter and more limited than the old statutory one. It is fair to conclude that the Framers wanted to restrict the law of treason for the new republic. However, there is something to the fact that they chose to keep the exact language. It may be lawyerly, but it also paradoxically seems to suggest that English precedent should be used to interpret the law. As constitutionalists the Framers were aware that they were fashioning something new and used precise language and limitations. As lawyers, however, they knew that by adopting much of the language and enumerated definitions contained in the Treason Act of 1351 they were inviting—or at least not forbidding— courts to interpret the new Treason Clause via precedent which had grown up around the English crime. Though the new Treason Clause included certain procedural safeguards, at the time the Framers knew of no better safeguards than confining prosecutions to traditional categories and judicial exposition. To some extent, precedent is a good unto itself. As long as precedent is followed the crime is limited to judicially recognized actions and claims, limiting any abuses by narrowing the crime’s scope and informing the public as to which actions are so reprehensible to be punished particularly severely. This tends to ameliorate a fundamental injustice of statutory criminal law, which is that people are assumed to know of the law and hence be subject to punishment if they don’t in fact know it. (Hence the maxim: ignorance of the law is no excuse.) The paradox is evident here, however, because the judicial precedent that is supposed to protect the public from overbroad and unjust constructions was itself over-expansive. As we will see this became a problem early on in the life of the republic.

The Framers’ intent to limit abuse shows in their stringent procedural requirements, which are taken partly from the Treason Trials Act of 1696. Parliament passed the Act after the so-called Glorious or Bloodless Revolution, in which an uncooperative and overly assertive king was overthrown and replaced with one more amenable to ruling as king-in-parliament. This was the period of the English Bill of Rights and the genesis of Britain’s form of constitutional monarchy. This new will to guarantee certain rights soon enough extended to certain procedural protections from trumped-up treason charges. The relevant text reads:

No person whatsoever shall be indicted, tried or attainted of High Treason…but by and upon Oaths and Testimony of Two lawful Witnesses, either both of them to the same overt act or one of them to one and one to another act of the same Treason, unless the party indicted or arraigned or tried shall willingly without force or violence in open Court confess the same.

As well as mandating the access to counsel, indictment by grand jury, etc., the Act also established, as you can see, the two witness and overt act requirements which became part of the US Constitution. Aside from the Framers’ selective choices, their only real innovation in the Treason Clause, then, seems to be the requirement that both witnesses need to testify to the same overt act. It is unclear whether the Framers were truly trying to limit the application of a treason charge through these procedural safeguards; the pre-Revolutionary history of the American states encouraged a concern for abuse of treason accusations, but also contrarily showed the great need for a potent treason charge during times of war and divided loyalties. As the thirteen colonies grew more rebellious, the British noticed that many Americans qualified their loyalties to Crown and Parliamentary rule with ideas of popular sovereignty, choosing to split their loyalties between the Crown and their local legislature. Many of these ideas, such as the ability by the popular legislatures to choose to disobey certain Crown or Parliamentary orders like the mandate to trade exclusively with Britain, would constitute “constructed treason” under the law. “Constructed” means that there is some kind of legal fiction operating here, as in this charge is a “construct.” In this case it means that not only levying war against the king, but also levying war against the enforcement of the king’s law, counts as treason. If you convene men to forcefully rebut the enforcement of a law then you and those men are not only guilty of breaking that law and whatever crimes of force you may have committed, but also of treason5. Therefore, all the crimes against British agents amid resistance to the various “tyrannical” laws like the Sugar Act, the Stamp Act, etc., were all treasonous. When the Sons of Liberty in Boston would tar and feather British tax collectors or throw tea off a ship they were committing treason. None of the colonists, however, were successfully prosecuted. For a while the British didn’t want to alienate the colonies any more than they had, so they threatened wrongdoers with treason charges but rarely actually enforced its punishment. When they did eventually decide to crack down in the early and mid-1770’s, they tried to prosecute only the Revolutionary leaders, offering pardons to anyone who would give them up. However, no one came forward. The biggest reason the Framers might have been super vigilant about treason prosecutions is that many of them had committed treason themselves by declaring independence.

Section 2

Despite all this, once the founders decided to unite under the Continental Congress, they realized that they needed treason charges to effectively fight the war and ensure independence, as well as union. As soon as the Continental Army was created in June 1775, for instance, the founders had to confront what would constitute treason, at least for members of the army. They prohibited mutiny and sedition as well as aiding the enemy and betraying intelligence6. The need to clearly define expected loyalties for both soldiers and civilians became pressing. Both authorities and many members of the public were still entertaining ideas of qualified resistance; some claimed the right to fight tyrannical policies but still considered themselves subjects of the Crown. In October 1775 a Dr. Benjamin Church, the surgeon general of the Continental Army, was caught trying to send a ciphered letter to the British containing war intelligence. Because he was a civilian, the military had no jurisdiction and decided to hand him over to the Massachusetts legislature, though Washington did convene a council of war, which found him guilty. The legislature concurred that Church was guilty, but deferred to the Continental Congress because they were unwilling to declare independence de facto by prosecuting him for treason7. The Continental Congress reached a similar decision, and the problem remained unresolved.

In early June 1776, Washington was encamped in New York when a treasonous plot was discovered. Several loyalists in the army, including one of Washington’s personal guards, had started counterfeiting money in order to fund a plan to sabotage defenses and stage an uprising timed to aid a British invasion. These men were quickly court-martialed and executed—the first treason executions in American history. However, New York State refused to charge the civilians who were involved for the same reason Massachusetts had refused to charge Church. This forced the Continental Congress into action. On June 24, 1776, weeks before the Declaration of Independence, the Continental Congress passed a treason bill:

Resolved, That all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of such colony; and that all persons passing through, visiting, or make [sic] a temporary stay in any of the said colonies, being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto:

That all persons, members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies within the same, or be adherent to the king of Great Britain, or others the enemies of the said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such colony:

That it be recommended to the legislatures of the several United Colonies, to pass laws for punishing, in such manner as to them shall seem fit, such persons before described, as shall be proveably attainted of open deed, by people of their condition, of any of the treasons before described.

As you can see in the second paragraph, treason was limited to levying war and adherence to the enemy even at this early stage. The colonies (and after July 4, the states) quickly passed treason laws accordingly.

The invention of a homegrown charge of treason presupposes new views of loyalty and citizenship8. In the 1776 treason bill from the Continental Congress, the members ground allegiance in a concept of reciprocity. Because someone living or travelling in the U.S. benefits from its laws, they owe allegiance to those laws. This justification works well enough to explain why we punish all people, even foreigners, for breaking the law of the land, it doesn’t adequately address the question of why those people owe an extra duty to the system as a whole and are subject to a consequent punishment. Though the legalistic framework was flawed, the treason bill nevertheless sent a clear, though implicit, signal that we now demand allegiance to the colonies equal to that once claimed by Britain. The public understood that it should be loyal to the nation and to the patriots’ cause. The new law was an emotional appeal to national feelings, not just a reasoned one. Though perhaps vaguely ideologically connected to ideas of reciprocity and social compact, the national ethos drew more power from a century and a half of common colonial experience and self-government. Though a minority of patriots were probably won over and inspired by the ideology of reciprocity, it was home loyalties and the escalation of hostilities that ultimately unified the American people in resistance.

The very fact that the Congress usurped loyalty to the Crown by defining treason shows the pragmatic roots of American sovereignty. The Congress would only later pass the ideological justifications for the new nation in the Declaration of Independence. The inclusion of the Treason Clause in the Constitution, I believe, is a tacit admission that the United States is more than a common belief in an amalgamation of liberties. The United States itself is entitled to allegiance and loyalty simply because, as a nation, the whole is greater than the sum of its parts. Furthermore, a nation, in order to continue to exist, has to enforce loyalty to itself. The great paradox in treason is that the collection of individuals needs to enforce its rights to form a common union by infringing on specific individuals’ rights, especially in a country built on liberal values. Therefore the Treason Clause should be read to reflect both those concerns. The procedural safeguards are there to protect the rights of the accused, and the fact that the charge exists and signals to precedent shows that it is meant to be applied nevertheless.

The records of the Constitutional Convention in 1787 themselves reveal some of the Framers’ intentions about the Treason Clause. Save some few snippets like Charles Pinckney’s 1786 proposed amendment to the Articles of Confederation and a crossed-out point in the New Jersey Plan presented to the Convention, there is not much precedent for the idea to include the definition of treason in the Constitution. It seems that the Committee of Detail (tasked with writing out the actual terms) first included it. On the committee was a James Wilson, a prominent lawyer who had defended some Americans against charges of treason. This may partly explain the lawyerly drafting of it. For the most part, debate centered around not the inclusion of the clause nor even the procedural safeguards, but rather over whether the president should be able to pardon treason offenses, reflecting a somewhat overblown suspicion of presidential tyranny and dictatorship. Nevertheless, there were some circumstances that concern us. Most delegates agreed to the clause’s inclusion, though James Madison worried that including it would rob Congress’s ability to change it; he believed that although changes could lead to abuse, they could also, in light of experience, lead to improvement. The procedural safeguards were proposed in order—first the two witnesses requirement, then the same-overt-act requirement, and finally the carve-out for confession in open court—and agreed upon without substantial debate.

To some extent the Framers included these safeguards because they were afraid that political factions, when attaining a democratic majority, would issue charges of treason against their political opponents. Madison commented on the clause in Federalist number 43:

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilty beyond the person of its author.

This was a constant concern for the Framers considering the freewheeling nature of republican government and the likelihood that an elected majority would do everything in its power to consolidate power over the minority. So the Framers chose to remove certain things from the majority’s purview by enshrining them in the Constitution, impervious to all but a burdensome amendment process. To deter the power of factions, the Framers chose to protect the individual. However, it is important to note that Madison frames his concerns as a qualification to his statement that the federal government ought to be able to enforce treason against the federal nation.

Section 3

There was no mention during the Constitutional Convention of ensuring the Clause’s efficacy, but the context of the Convention amid rebellion makes clear how important that was. In 1787, months earlier, Western Massachusetts rose up in armed rebellion to protest new property taxes that were driving farmers to insolvency9. This was called Shays’ Rebellion. The rebellion was put down by the Massachusetts militia and Shays was convicted of treason by the state, though pardoned soon afterwards by the governor. The need to strengthen the Articles of Confederation was felt all the more strongly, since a powerful national government could more effectively thwart rebellion. Furthermore, Shays’ Rebellion, if successful, would have meant that a state would be taken over by a non-majoritarian, anti-democratic regime. Under the status quo there would have been no effective response available; the states and Congress under the Articles of Confederation had no power to militarily intervene in a state still in the union but with a changed regime. At the Constitutional Convention, therefore, the Framers established 1) the federal right to call a national militia to suppress insurrection, 2) the federal guarantee that states maintain a republican form of government, and 3) the Treason Clause. One can see how important these are because they implicate all three branches of government under the Separation of Powers. Congress is responsible for maintaining a national militia. The President as Commander in Chief would then assume command of that militia and put down the rebellion. Afterwards, the federal courts would be responsible for trying the rebels for treason. The debate about Presidential pardon was relevant because the pardon power complicated this separation, and the Framers ultimately decided to allow the pardon power. It was suggested that the President could use pardons pragmatically to diffuse rebellions, offering rebels clemency in exchange for laying down arms or betraying their co-conspirators. The Treason Clause, then, was not meant to be just a signal to personal liberties and loyalties, but to be used, albeit judiciously, against threats to national sovereignty.

The legal doctrine around treason, however, has developed to effectively rule out its use. The two post-Revolutionary rebellions, the Fries Rebellion and the Whiskey Rebellion, were relatively light and limited and ended in presidential pardon. In 1806-7, the country was obsessed with the trials of Aaron Burr and his associates. Burr had been the vice president in the Democratic-Republican administration of Thomas Jefferson from 1801 to 1805. His accomplishments in office were notable: not only did he manage to have a falling out with the Republican leadership, he also killed the icon of the Federalist Party, Alexander Hamilton. After leaving government he headed west to Appalachia and the western territories where he plotted an independent war expedition against Spain in hopes of conquering the Mississippi and Mexico at the head of a seceded western United States. He had already gotten a company of men together when he was betrayed by a general he was plotting with. Jefferson was incensed and headed a prosecution for treason where he bent all the rules to try to convict. Thwarting Jefferson’s attempts, however, Chief Justice Marshall, who adjudicated the case as a circuit justice, would not let Jefferson take over the trial. Instead, Marshall came out with a monumental decision that strengthened the procedural safeguards. The government’s evidence consisted of letters about assembling the company of men, and the testimony of those men, who were offered pardons in exchange for their information. The government tried to argue that Burr was guilty of constructed treason, that he amassed men in furtherance of treasonous intent, and that Burr, though not present at the place where the men were, was constructively present because he was legally accountable for what happened there. The “overt act” was the collection of men. Marshall dismissed constructive presence and said that Burr himself had to have committed an overt act, for which the letters did not qualify, nor did, theoretically, the collection of men who knew of no treasonous purpose. Marshall essentially said that one cannot just talk about treason; one has to do something active in furtherance of a plot.

Though there would be a handful of treason cases afterwards in the history of the United States, Marshall’s opinion went far in cowing any designs prosecutors had. And though the Civil War provided a whole lot of treason accusations, there were no formal indictments, since most authorities decided not to strain the social fabric any further than necessary, especially in victory. During wartime, also, Lincoln consistently ignored the Constitution. If he didn’t mind suspending habeus corpus, he definitely was not willing to jump through all the hoops necessary for a proper treason prosecution. John Wilkes Booth’s conspirators were given no more than a military tribunal.

Section 4

The real test for modern treason jurisprudence came during World War II in the first and last two Supreme Court cases to address treason10. In 1942 eight Germans who had spent time or grew up in the United States landed via U-Boat in America. The FBI caught them before they could perform the sabotage they intended (committing terrorist attacks on targets such as the aluminum industry) and they were convicted and executed after military tribunal11. The authorities also chose to prosecute certain American citizens for treason, namely for providing aid and comfort.

The first was Cramer v. United States, wherein a German-American named Anthony Cramer had met a couple of the saboteurs in restaurants around Grand Central in New York. The prosecution initially convicted based on evidence of Cramer’s Nazi sympathies and the fact that Cramer had consented to hold money for the Germans, as well as the fact that Cramer was willing to help what he thought was to be a pure propaganda operation. The Court decided, however, to overturn the conviction, voting 5 to 4. The justices in the majority decided to construe the procedural safeguards of the Treason Clause extremely narrowly: "[e]very act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses." Furthermore, the court claimed that the prosecution formally alleged only two overt acts, both meetings at restaurants. The Court was profoundly uncomfortable making illegal what would otherwise constitute wholly innocent conduct. The Court’s opinion (its written holding) doubted the meetings as aid and comfort, stating that Cramer hadn’t even paid for the drinks. The Court, then, implies that the overt act must be in itself treasonous, though the opinion specifically denies this. It finds that the Framers and law commentators were entirely concerned with establishing safeguards for individual liberty, and not with prosecuting traitors.

Backpedaling a bit in Haupt v. United States, the court stated that one does not need the two witnesses to testify that there was treasonous intent nor that the overt act was treasonous (though those elements are still necessary to prove in some other way). In that case, the Court upheld the conviction of the father of one of the saboteurs who housed his son, helped him buy a car, and got the son his job back, knowing the son’s intentions. The overt act was housing the son as witnessed by the entry and exit of the son and father in the morning and evening by two FBI agents.

These two cases, when combined with Marshall’s, have effectively precluded the treason charge. Though the court finds Haupt properly guilty, it does not make the holding clear enough to put into practice. The number of hoops the government must go through is astonishing. The Court could have just as easily concluded, as the dissent in Cramer suggested, that the overt act requirement is a procedural safeguard ensuring that an action in general was in fact done (that words alone do not constitute treason) and that put into context the simple proven act was part of a treasonous plot (that the treasonous nature was not fabricated by political enemies). These conclusions would not entail that the prosecution would be off the hook for the normal criminal procedures and safeguards every citizen is entitled to. The procedures simply stand as a safeguard that the accused did not just think or imagine treason, but actually began to act on a plot.

Courts have been particularly keen to narrow the application of treason because the state usually has a number of other charges at its disposal that don’t have that particular inflaming association. In a particularly prescient statement, Rufus King, a delegate from Massachusetts, commented that “the controversy relating to Treason might be of less magnitude than was supposed; as the legislature might punish capitally under other names than Treason.” At the Burr trial, part of what led Marshall to be so strict toward the government’s case was his frustration that the government wouldn’t settle just for a misdemeanor charge of planning an unauthorized expedition against Spain. In Cramer, the Court, afraid of the potential for public approbation and panic accompanying any indictment of treason, suggested that the government can instead charge any other offense they wish. Accordingly, since Haupt was decided every potential treason trial has been couched in other terms or charges12. The Rosenbergs, for example, were charged with violations of the Espionage Act, as have been many others. The Smith Act, which punished advocating the overthrow of the U.S. government and was used against communist party members during the forties and fifties, was also essentially an alternative to treason.

Section 5

Two recent cases strike me as missed opportunities for treason prosecutions. When Timothy McVeigh blew up the Federal Building in Oklahoma City in 1995 he was committing treason. However, he was charged with conspiracy to use a weapon of mass destruction (for which the government lists twenty-six overt acts, a requirement for conspiracy), use of a weapon of mass destruction, and eight counts of first degree murder for the federal agents who were killed. McVeigh did not hide the fact that he committed treason. In fact, his defense attorney tried to argue that since McVeigh’s crime was politically motivated to fight the tyranny of the federal government, the jury should distinguish him from the Ted Bundys of the world and spare him the death penalty. Ironically, McVeigh’s counsel could have drawn on the institutional lenity of American treason jurisprudence, though McVeigh could not have intended more to violate the only Constitutional crime. Ultimately, McVeigh was executed without those concomitant safeguards.

Another missed opportunity came in 2002 when U.S. forces captured John Phillip Walker Lindh, a.k.a Suleyman al-Faris a.k.a Abdul Hamid, known popularly as the “American Taliban.” Lindh had committed the classic treason of putting on an enemy uniform and levying war against the United States as a U.S. citizen. However, he was charged with conspiracy to murder U.S. nationals, conspiracy to provide material support & resources to foreign terrorist organizations, providing material support & resources to foreign terrorist organizations, conspiracy to contribute services to Al Qaeda, contributing services to Al Qaeda, conspiracy to supply services to the Taliban, supplying services to the Taliban, and using and carrying firearms and destructive devices during crimes of violence. Of those I would argue all but the last constitute subsets of treason, either as levying war or as aid and comfort. Lindh pleaded out and is serving twenty years, allegedly because the government didn’t want to go to trial lest word come out about Lindh’s torture at American hands (or so claims his father).

One thing these cases implicate is a general legal doctrine of preemption. Generally when a hierarchy of laws and authorities is established and clear, the higher authority’s laws trump the lower authority’s laws. The Supremacy Clause of the Constitution, for instance, establishes that when Congress passes a valid law and that law contradicts a state law, the federal law either limits the state law into one consistent with the federal one or nullifies it entirely in favor of the federal law. Similarly when a Congressional statute conflicts with a Constitutional requirement, the Constitution always trumps. When there isn’t a direct contradiction the lower law may still occupy the field of the higher one and have to be nullified. This is the case with the Congressional power to regulate interstate commerce. The Supreme Court interprets this power to mean that interstate commerce is also reserved only for Congressional action and precludes the states from making any of their own regulations. Often the court won’t read in “field preemption” like the commerce power, but the concept is still respected, especially with Constitutional issues. As a general principle, the Court will bend over backwards to modify and narrow statutes even to avoid possible constitutional questions. This is the so-called Constitutional Avoidance substantive canon of statutory construction. Theoretically, one could read the Treason Clause broadly to occupy the field of similar federal crimes. After all, it is unclear why a narrow reading of the Treason Clause better protect individual rights when reading it broadly to preempt treason-like crimes would ensure the same procedural safeguards for people facing similar punishment anyway. The treason preemption theory was kicked around for a while during the first half of the twentieth century and was used to justify mid-century certain lenient judicial interpretations like reading a specific intent requirement into serious federal crimes. No crime, however, has ever been found to directly conflict. In a way, it would only be fair to the Constitution to take up the treason charge again.

The cases of Lindh and McVeigh also show real opportunities to charge treason and in so doing create a nationwide debate and circumspection about how we define citizenship, loyalty, and national values. Treason prosecutions following the Revolutionary War and World War II helped the country define itself as it came into grand new worldwide responsibilities and circumstances. Post-revolution rebellions helped clarify the need for a central government and national state. Burr’s trial warned America to work to maintain loyalties during westward expansion. The post-WWII trials gave Americans a period of self-reflection and definition before a new ideological struggle in the Cold War. It may be that this kind of national discussion was what our Founding Fathers had in mind when they included the Treason Clause in the Constitution.

1A statute is what lawyers call a law. It’s etymologically connected to “statement”: the idea is that this is what the King has “stated.” Statutes were distinguished from church law and Common Law. The latter was an organic development of doctrine as judges across England started communicating with each other and gradually agreed to certain standards over time. While Common Law laws were pretty vague as a consequence, statutes were always fixed by their language, though interpretation of that language is another thing entirely. In modern usage, “statute” is usually used in contradistinction to “regulation,” where the former is passed by a legislature like Congress and the latter is passed by administrative agencies or a state bureaucracy.

2 Why “high” treason? This is because before the 1351 Act, common-law “petty” treason included certain types of murder that were aggravated by the status of the perpetrator and victim. Essentially, when someone killed his master, parent, prelate etc., he was not only guilty of the grave sin and crime of murder, but also challenging the feudal order and its respect for hierarchies, which were at the time the bedrock of society.

3 Interestingly, though the Framers usually adopted the limiting clauses of the statute and expanded on them, they seem to have willfully skipped the “within the realm” limitation that existed at least for direct levying of war.

4 Drawing and quartering, for the unenlightened, involved dragging the man by horse to his execution (drawing), hanging him to near death, slicing off his penis, cutting loose his intestines, beheading him (only at this point does he actually die), and chopping him into four pieces to be displayed publicly (quartering). Women were instead burned at the stake. When the authorities were inclined to be merciful in such cases they would rig a cord around the woman’s neck to enable them to kill her at a distance before the flames approached. This was not always successful.

5 There is another form of constructed treason that becomes important when we discuss the Burr trial, which is the idea that anyone who would be an accomplice in the case of a felony is treated as a principal in the case of treason; i.e., all actors or associates in a treasonous act, even if they are not the prime moving party, can be charged and found guilty.

6 The act establishing the army, though, still professed loyalty to George III, oddly enough.

7 Church was soon let go because the Congress had no legal jurisdiction over him, but died on a ship that sunk in the West Indies.

8 There is some evidence that the colonies had already started to enforce their own conceptions of loyalty, but it was never as explicitly stated as during the Revolution, reflecting instead an inherent ambiguity around colonial identity with cultural and physical distance from the metropole. The Providence Agreement of 1637 and the Mayflower Compact of 1620 both have elements of an oath or agreement to the public good and loyalty to the colony and fellow citizens.

9 The taxes were meant to pay for Revolutionary War debt the state had incurred.

10 Technically the Burr trial was a circuit court decision, though the Chief Justice presided. Also, Marshall apparently solicited the opinions of his fellow justices, though we have no record, so the opinion gets as authoritative as possible save an actual Supreme Court opinion.

11 In Ex parte Quirin the Supreme Court affirmed the use of military tribunal for any unlawful combatant. This case featured prominently in justifying the Bush administration’s military tribunals of suspected terrorists.

12 World War II ultimately produced ten treason prosecutions with the remaining ones involving people who had dual citizenships and fought for Germany or Japan. These mostly came down to issues of whether they joined those respective armies out of duress or not; most of them were involved in radio propaganda.

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