“Treason doth neuer prosper? What’s the Reason?
for if it prosper none dare call it treason.”
The saying goes back to the epigrams of Sir John Harington in the late 16th century, who had an awkward relationship with the English monarch of the day, James I. With the term being bandied about loosely in recent times, not least by the President in regard to his critics and people he doesn’t like, a favor often and generously repaid by politicians, columnists, and late-night TV comedians, perhaps it needs another look. It’s a serious claim, but a murky topic.
Commonly speaking, treason amounts to something like “betrayal of trust, treachery.” But a look at how treason is viewed in the U.S. Constitution and the U.S. Legal Code may help clarify the issue for anyone who cares. And they should.
According to Article III, Section 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 article goes on to point out, “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.”
This provision is amplified in the U.S. Code: “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.” (U.S. Code § 2381. Treason. June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII, § 330016(2)(J), Sept. 13, 1994, 108 Stat. 2148.” [https://www.law.cornell.edu/uscode/text/18/2381]
While most serous during time of war, and technically limited to it, that first Constitutional “or” is a powerful little conjunction. What follows it is important. Clearly, neither criticizing the President nor bringing articles of impeachment against the President or other government officials is in any way included. The latter is, in fact, a prerogative of the U.S. Congress. But what does it mean to give “aid and comfort” to the enemy?
In the United States, treason may be an offense either against the federal government or against respective states. Oddly enough, only one individual was ever executed for treason against the federal government. In 1862 during the Civil War, the hapless William Mumford was convicted and hanged for it after a military trial for tearing down a United States flag in New Orleans. It is not clear whether New Orleans was in fact occupied by federal forces at the time. [See https://en.wikipedia.org/wiki/Treason_laws_in_the_United_States. Also see https://www.washingtonpost.com/opinions/five-myths-about-treason/2017/02/17/8b9eb3a8-f460-11e6-a9b0-ecee7ce475fc_story.html?utm_term=.f4f6cb053a0b]
John Brown was hanged for treason against the State of Virginia, insurrection, and murder in 1859 as was his associate Aaron Dwight Stevens the following year. Those convicted of treason against the U.S., including giving “aid and comfort to the enemy,” but not executed, include Robert Henry Best, sentenced to life imprisonment in 1948; Martin Monti, sentenced to 25 years in prison in 1949; Mildred Gillars (Axis Sally), sentenced from ten to thirty years in prison in 1949; and Iva Toguri D’Aquino (Tokyo Rose), sentenced to ten years in 1949, pardoned in 1977 by President Ford. Because the United States was not at war with anyone in 1953, Julius and Ethel Rosenberg were executed for espionage, not treason.
It is worth noting that in contrast to the Constitution and the U.S. Legal Code, a standard dictionary definition (in this instance Merriam-Webster) defines treason as “the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign’s family.”
It might reasonably be asked whether the assassination or attempted assassination of a President, member of Congress, or Supreme Court justice, has ever been prosecuted as an act of treason. Were Squeaky Fromm, Sara Jane Moore, or John Hinckley, prosecuted for treason? In fact the charge is usually that of murder or attempted murder. Consider:
Charles J. Guiteau, executed in 1882 for the murder of James Garfield in 1881.
Leon Czolgosz, executed October 29, 1901, for murdering William McKinley that year.
John Schrank, found not guilty by reason of insanity for the attempted murder of Theodore Roosevelt in 1912 and committed to a hospital for the criminally insane in 1914.
Giuseppe Zangara, executed in 1933 for the assassination of Anton Cermak, Mayor of Chicago, but who failed to kill President Franklin Roosevelt.
Lynette “Squeaky” Fromme, convicted of the attempted assassination of Gerald Ford in 1975.
Sara Jane Moore, convicted of the attempted assassination of Gerald Ford in 1975.
John Hinckley Jr., found not guilty by reason of insanity of the attempted assassination of Ronald Reagan in 1981.
Shannon Richardson convicted and sentenced to eighteen years in prison for the attempted murder of President Barack Obama in 2013.
Other Offenses against the State
“High crimes and misdemeanors” is a phrase from Section 4 of Article Two of the United States Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” But what constitutes high crimes and misdemeanors?
According to the authoritative source usually cited by my undergraduate students, “The charge of high crimes and misdemeanors covers allegations of misconduct by officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming conduct, refusal to obey a lawful order, chronic intoxication, and tax evasion.” [https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors#United_States. But also see Jon Roland, “Meaning of High Crimes and Misdemeanors,” Constitution Society (January 19, 1999), and “High Crimes and Misdemeanors,” Constitutional Rights Foundation. Crf-usa.org.]
Back in the day, as noted by the New York Times in 1861, James Madison wisely wrote in No. 43 of The Federalist,
“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 tangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the Convention has with great judgment opposed a barrier to this peculiar danger by inserting a Constitutional definition of the crime.” [https://www.nytimes.com/1861/01/25/archives/treason-against-the-united-states.html]
Those Founding Fathers knew a thing or two about factions and about treason. So did Sir John Harington.
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