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Treason, 'treason', and the Convention

by Dr Nicholas Cole on 18 December 2017

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To state the matter as neutrally as possible, Donald Trump's campaign and administration included and includes many people with ties to Russia. The extent of any collusion between his campaign (or administration) and officials within Russia, whether directly and knowingly or via intermediaries, is currently the subject of investigations by committees of the U.S. House of Representatives and the Senate, and by numerous journalists, especially those at the New York Times and Washington Post.

But amid all of this, one particular charge stands out, and that is the idea that the President might have committed 'Treason'. It is such a potent word that in many cases it still carries a capital letter when it appears in print, even as house styles have tended to abandon such typographical emphasis in most cases. In the UK, the Independent newspaper has carried such a claim, as has The Daily Mail and it is more generally a frequent mode of attack in the USA by some on the right, and, of course, by many on the left of American politics.

In American political life, accusations of treason are nothing new, nor are they unusual. The internet is bursting with accusations that President Obama committed various treasons, while the chair of the Homeland Security Committee, Mike McCaul, accused Hillary Clinton of treason over her handling of her emails. It was but one of many such attacks on her during the election campaign. George W. Bush has in his turn been accused of 'treason', and so have, in their various turns, all of his predecessors as President and many others besides.

These accusations never turn in to any kind of indictment. It is, in almost every way, a 'nonsense charge' (to use the words of Vox.com) whenever it is made. Or at least, it is so legally. Politically, it is a potent charge indeed, the word 'treason' capturing in American political life more than the narrow and tightly defined criminal act, but rather the idea that an individual has worked against the interests of the American community and polity more generally. Perhaps for this reason it is often twinned with the charge that an individual has failed to uphold his or her oath of office to perform his or her duties under the Constitution, often as if negligence is in some sense the same as 'treason'.

In this more general use of the term, Americans retain some sense of older, pre-modern understandings of treason. The legal definition in England, and the political meaning of the term, has at various moments covered a huge range of offences. For an introduction to this, the Wikipedia entry provides a good place to start.

The U.S. Constitution incorporates a more modern, and explicitly much narrower, view of the offence of treason. This narrower definition was part of the few but important protections of the individual that the Convention itself agreed to before the Bill of Rights had been written.

The definition of treason had not been mentioned during the earlier periods of debate in the Convention, either in the Committee of the Whole or in the Convention itself. There was no mention even of the power to define treason in the version of the Virginia Plan that was sent to the Committee of Detail on 23rd July 1787.<sup>1</sup> It did not feature in the New Jersey Plan that was also sent to them for consideration the following day.<sup>2</sup> Nor was it part of the additional instructions sent to them by the Convention on 26th July. However, on 24th July the Committee was sent a set of proposals that had been introduced on 29th May<sup>3</sup> by Charles Pinckney. This plan was never discussed in detail by the Committee of the Whole or by the Convention, and some of its detail remains uncertain, but appears to have included the provision that the two houses of Congress should have 'the exclusive Power of declaring what shall be Treason and Misp. of Treason agt. U. S'. Such a provision would have left the definition of Treason fluid and flexible, capable of being amended by ordinary legislation. The precise purpose of this provision is unclear---the word 'exclusive' certainly excluded the states, but was perhaps intended, too, to be a definite curtailment of executive power, since in the early modern period in Europe, 'treason' was frequently thought of as an offence against the sovereign (and executive) magistrate.

Whether of their own volition, or prompted by this provision of Pinckney's suggestions, the five members of the Committee of Detail decided to include a strict definition of treason in to the constitutional text itself. The draft they reported back at the beginning of August included the provision that

Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them.<sup>4</sup>

This language was discussed in detail by the Convention itself on 20th August, when ten changes in wording were debated. The result of those deliberations was a definition that read:

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. The Legislature shall have power to declare the punishment of treason. 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. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted.

The definition of treason was more limited compared to that suggested by the Committee of Detail, and the standard of proof required considerably raised. The requirement of an 'overt act' and two separate witnesses to the same in open court was intended to strictly limit the scope of treason and make it hard to convict on the basis of suspicion and rumour. However, this was a point of contention. As Wilson, who had served on the Committee of Detail and who may have written the original wording, noted:

Mr. Wilson. much may be said on both sides. Treason may sometimes be practised in such a manner, as to render proof extremely difficult — as in a traitorous correspondence with an Enemy.<sup>5</sup>

However, in the end it was the view of Franklin and others that won out. Too low a standard for treason encouraged too many prosecutions and had frequently been associated with tyranny. Left loosely defined, the crime of acting against a community is simply too open to abuse. As Madison records Franklin saying:

Docr Franklin wished this amendment to take place — prosecutions for treason were generally virulent; and perjury too easily made use of against innocence.<sup>5</sup>

The mention of attainder is itself interesting. It limited the punishment of the crime of treason to the individual convicted, and prohibited any broader punishment of his or her family. Taken by itself, this might have referred to a Bill of Attainder passed by the legislature---that is a legislative (rather than a judicial) decision that treason had been committed. But in fact, two days later the Convention also adopted without any voice against the separate provision suggested by the Committee of Detail that the legislature be prohibited from passing any bill of attainder at all.<sup>6</sup> There was at that moment a slight discussion as to whether Congress needed to be prohibited from passing 'ex post facto' laws---that is laws that made actions retrospectively illegal---but the related provision that prevented a bill of attainder was never controversial.<sup>7</sup>

The final Constitution, therefore, defined treason narrowly as an overt act aiding the country's enemies. It might be objected that the idea of 'enemies' was left a little vague, but a natural reading of the texts suggests understanding this as foreign powers against whom war had been declared. Any other reading would not sit well with the deliberately narrow definition of treason adopted by the Convention. Congress was prohibited from tampering with this definition, or from passing any declaration that treason had been committed by an individual without a trial.

Treason was, however, specifically specified as a reason that the President might be removed.

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.

It is notable that this definition did not include 'felony' convictions. The standard for impeachment is significantly higher than that of mere criminal activity, though (in the phrase 'high crimes and misdemeanors' includes recognition that office-holders have particular duties and responsibilities).<sup>8</sup>

It is, in the end, perhaps this clause that continues to fuel the accusation of treason in American political life. For if read more generally, rather than narrowly defined as it is in the text elsewhere, it suggests that those guilty of crimes against the community might be removed from office. It is a more easily understood and misunderstood term than the more technical and archaic 'high crimes and misdemeanors'. In a system of fixed terms of office, the idea of impeaching those of whom one does not approve remains a tantalizing possibility.

Although the notion of a more general offence of harm against the community of the government has great populist appeal, the framers were no doubt wise to resist it. The abuses of regimes with lesser definitions scatter the pages of history. It was a particular theme, for example, of Tacitus' description of the abuses at Rome. The flexibility of the charge of treason in that state made it a favourite of informers and despotic emperors, and the punishments frequently involved significant punishment not only of individuals but whole families. As Tacitus writes in Book III of the Annals:

Meanwhile there was an increase in the number of persons imperilled, for every household was undermined by the insinuations of informers; and now the country suffered from its laws, as it had hitherto suffered from its vices. This suggests to me a fuller discussion of the origin of law and of the methods by which we have arrived at the present endless multiplicity and variety of our statutes.

...

Tiberius indeed and the informers were never weary. Ancharius Priscus had prosecuted Caesius Cordus, proconsul of Crete, for extortion, adding a charge of treason, which then crowned all indictments. Antistius Vetus, one of the chief men of Macedonia, who had been acquitted of adultery, was recalled by the emperor himself, with a censure on the judges, to be tried for treason, as a seditious man who had been implicated in the designs of Rhescuporis, when that king after the murder of his brother Cotys had meditated war against us. The accused was accordingly outlawed, with the further sentence that he was to be confined in an island from which neither Macedonia nor Thrace were conveniently accessible.

...

All good men were saddened by anxiety for the country, but many in their loathing of the present system and eagerness for change, rejoiced at their very perils and exclaimed against Tiberius for giving attention amid such political convulsions to the calumnies of informers. "Was Sacrovir too," they asked, "to be charged with treason before the Senate? We have at last found men to check those murderous missives by the sword. Even war is a good exchange for a miserable peace." Tiberius all the more studiously assumed an air of unconcern. He changed neither his residence nor his look, but kept up his usual demeanour during the whole time, either from the profoundness of his reserve; or was it that he had convinced himself that the events were unimportant and much more insignificant than the rumours represented?

In adopting the provisions that they did, the Framers avoided all of these evils, even though they were aware that a narrower definition would, at times, be felt to have its own disadvantages.<sup>9</sup> Whatever may, or may not, emerge in subsequent investigations, however, the talk of charges treason against the---or indeed any---current President will never be anything more than a potent, political slur that draws upon a much broader and looser meaning and understanding of the word than any sensible lawyer would allow.