For years, Carlton F˳ W˳ Larson, a treason scholar and law professor at the University of California, Davis, has swatted away loose treason accusations by both Donald Trump and his critics˳ Though the term is popularly used to describe all kinds of political betrayals, the Constitution defines treason as one of two distinct, specific acts: “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort˳” Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival˳ Ordering the military to abandon Kurdish allies in Syria, effectively strengthening ISIS, is not treason, either—though that is getting warmer˳ During Trump’s Presidency, Larson told me, his colleagues teased him by asking, “Is it treason yet?” He always said no˳ But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election˳ “It’s very clear that would have been seen as ‘levying war,’ ” he said˳
Both of Trump’s impeachments, in 2019 and 2021, were for “high crimes and misdemeanors,” but the Constitution also names treason as an offense for which a President can be impeached˳ Individuals, including a former President, may also be criminally punished for treason, perhaps the highest offense in our legal system, carrying the possibility of the death penalty˳ Fearing abuse of treason charges, the Framers gave treason a narrow definition and made it extremely difficult to prove˳
The Treason Clause dictates that a conviction can rest only “on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court˳” Partly as a result, there have been around forty treason prosecutions˳ No American has been executed for treason against the U˳S˳, although Hipolito Salazar (a Mexican who officials thought was American) was federally executed for treason during the Mexican-American War, and some states have executed people for treason, including the abolitionist John Brown˳
Larson wrote in his book “On Treason: A Citizen’s Guide to the Law,” from 2020, that the Framers “had a very specific image in mind—men gathering with guns, forming an army, and marching on the seat of government˳” Few events in American history, if any, have matched that description as clearly as the insurrection of January 6th, which, court documents suggest, was planned by milita members who may have intended to capture elected officials˳ The American most associated with treason was one who did not “levy war” but rather gave “aid and comfort” to the enemy: Benedict Arnold˳ He at first fought heroically in the Revolutionary War but then attempted to aid the British; he fled to the enemy when his betrayal was discovered, and so was never punished˳ Treason prosecutions for levying war were brought against some individuals who took part in the Whiskey Rebellion of 1794, in which armed men burned down a tax collector’s house, and the Fries Rebellion of 1799, in which armed men stormed a prison and forced the release of tax resisters˳ Both resulted in conviction followed by pardon˳ The Jefferson Administration prosecuted the former Vice-President Aaron Burr, in 1807, for allegedly conspiring with a group of armed men to overthrow the U˳S˳ government in New Orleans, but he was acquitted˳ In connection with that planned rebellion, the Supreme Court held that a mere conspiracy to levy war does not count as actually levying war˳ Another treason case resulted from the Christiana Riot, in which dozens of men fought the return of slaves to their owners as required by the Fugitive Slave Act˳ Supreme Court Justice Robert Grier, presiding at trial (as Justices did in those days), held that “levying war” had to involve an intent to overthrow the government or hinder the execution of law˳
Southern secessionists who waged war against the United States were treasonous under any reading of the Treason Clause’s “levying war” standard˳ Jefferson Davis, the former U˳S˳ senator turned President of the Confederacy, was indicted for treason in 1866˳ Before trial, however, Chief Justice Salmon Chase made clear his view that the Fourteenth Amendment, which had been ratified a few months earlier, precluded any other treason penalties for Confederates˳ Section 3 of the amendment bars from holding public office anyone who took an oath to support the Constitution and then “engaged in insurrection against” or gave “aid or comfort to the enemies” of the United States˳ Because of the Chief Justice’s interpretation, President Andrew Johnson gave up on the prosecution of Davis and granted amnesty to all former Confederates if they swore an oath to defend the Constitution and the Union˳
In the past century, federal treason prosecutions generally have been “aid and comfort” cases˳ After the Second World War, a Japanese-American woman named Iva Toguri D’Aquino, better known as Tokyo Rose, was convicted of treason for broadcasting anti-American propaganda on Radio Tokyo; she was pardoned in 1977, after witnesses recanted˳ The poet Ezra Pound was famously prosecuted for Fascist propaganda broadcasts on Italian radio; the case was dropped in 1958, when he was found incompetent to stand trial˳ During the Cold War, Julius and Ethel Rosenberg were convicted and executed for conspiracy to commit espionage, not treason; the Soviet Union was not technically an enemy˳ After a half century of no federal treason cases, the indictment of the Al Qaeda spokesman Adam Gadahn, in 2006, was the first to concern giving aid and comfort to an enemy that was not a nation˳ Had Gadahn ever been tried, the defense might have argued that a terrorist group such as Al Qaeda isn’t an enemy as envisioned in the Treason Clause, though a federal district court assumed, in 2013, that it was˳ Gadahn was killed in Pakistan in 2015, by a C˳I˳A˳ drone strike˳
Since the Capitol insurrection, there has been little talk of treason charges˳ Carlton Larson suggested that this was because “everybody now tends to think of treason as mostly aiding foreign enemies˳” In his book “On Treason,” he even states that “levying war is arguably archaic, of interest only to historians,” and that, in the twenty-first century, “armed rebellions to overthrow the government are simply not going to happen˳” But, to the Framers, such an insurrection was a paradigmatic case of treason˳ The founding-era Chief Justice John Marshall held in the treason trial of Aaron Burr that levying war entails “the employment of actual force” by “a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility˳” If some of those who attacked the Capitol assembled in order to incapacitate Congress—perhaps even by kidnapping or killing lawmakers—then their actions could be construed as an attempt to overthrow the government, and federal prosecutors could plausibly consider treason charges˳ As Larson put it, “At some point, you have to say, if that’s not levying war against the United States, then what on earth is?”
Last Tuesday, Mitch McConnell, who is now the Senate Minority Leader, said that the attackers “tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like,” offering a narrower purpose than government overthrow˳ Investigators examining the emerging evidence on the scope of the plot might disagree˳ Federal law also makes it a separate felony for anyone who owes allegiance to the U˳S˳ and knows of the commission of any treason to conceal it or not tell authorities˳ That vastly widens the net of those who could potentially be charged, including friends, acquaintances, and co-workers of the attackers˳ (Since the attack, many such individuals have, in fact, come forward to give information to law enforcement˳)
The Treason Clause’s strict evidentiary rule of two witnesses to the act makes it exceedingly difficult to convict anyone of treason, even with so much conduct captured on video˳ But a treason case against Trump himself might conceivably be built, if prosecutors could establish that he knew in advance that his supporters planned to violently assault the Capitol, rather than peacefully protest; that he intended his speech urging them to “fight harder” to spur them to attack Congress imminently; and that he purposely didn’t do anything to stop the insurrection while it was unfolding—or, worse, intentionally contributed to a security failure that led to the breach˳ Then Trump would have engaged in treason along with supporters who attempted, in his name, to overthrow the U˳S˳ government˳ At a minimum, it appears that Trump, along with top government officials, was aware that his followers were planning acts of violence˳ Trump did, however, say, in the midst of his incendiary speech, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard˳”
