Dedication

To Elaine, Carina, and Elliot

Epigraph

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.

—United States Constitution, Article III, Section 3

Contents

Cover

Title Page

Dedication

Epigraph

Introduction

1: The English Origins of American Treason Law and the Adoption of the Constitution’s Treason Clause

2: Benedict Arnold: Founding Traitor

3: What Is Levying War Against the United States?

4: The Case of Aaron Burr

5: The Forgotten Crime of Treason Against a State

6: The Case of Castner Hanway and the Fugitive Slave Act

7: Who Is Subject to American Treason Law?

8: The Unlawful Execution of Hipolito Salazar

9: The Case of Jefferson Davis, President of the Confederate States of America

10: Who Are Enemies of the United States?

11: Tokyo Rose and the World War II Radio Broadcasters

12: What Is Adhering to the Enemy, Giving It Aid and Comfort?

13: The Requirement of Traitorous Intent

14: Adam Gadahn and the War on Terror

Conclusion

Acknowledgments

Appendix: Quiz Yourself!

Notes

Index

About the Author

Also by Carlton F. W. Larson

Copyright

About the Publisher

Introduction

Another story has just broken—a plea for Russia to hack someone’s e-mails, a meeting at the Trump Tower with a suspected Russian agent, or an announcement by the president of the United States that a hated political enemy has committed treason. In my office at the UC Davis School of Law in California, I know what will come next. The phone rings, and suddenly I am back in the world of Washington, where I used to practice law. On the line is a reporter with the inevitable question: Is it really treason?

As recently as early 2016, I rarely received calls like this. As a professor of American constitutional law and legal history, I regularly answer questions for the media about legal issues. But for the most part, those calls tended to focus on constitutional law more generally and on other subjects I have written about, such as the Second Amendment or the arcane law governing baby names. Few people were interested in one of my primary fields of research—the American law of treason.

Times have changed—and dramatically so. Treason, for lack of a better word, is now hot again. Ever since Donald Trump publicly encouraged Russia to hack the DNC’s e-mails, allegations of treason have hovered over Trump and his campaign, pushing the issue into a bright national spotlight. With each new sordid revelation, the stench of perceived disloyalty grows stronger. For many on the left,Ω the notion that Donald Trump is a traitor isn’t just a suspicion, it’s an established fact.

Trump, too, is convinced that widespread treason is occurring, although he sees different culprits. By June 2019, he had made at least twenty-four separate accusations of treason, far more than any other modern president.¹ He has claimed, for example, that an FBI agent’s support for Hillary Clinton amounted to treason.² He suggested that Democratic members of Congress who failed to applaud during his State of the Union address were un-American and treasonous.³ When an anonymous member of his administration published a critical editorial in the New York Times, Trump tweeted, TREASON? He suggested that Democrats who opposed his border policies were TREASONOUS.⁴ And, when pressed by a reporter, he specifically accused former FBI director James Comey and assistant director Andrew McCabe of committing treason by investigating his campaign.⁵ More recently, Trump stated that the Mueller investigation was treason and that the New York Times committed treason by publishing a story stating that the U.S. was increasing its cyberattacks on Russia.⁶ Perhaps most notoriously, when Adam Schiff, chair of the House Intelligence Committee, criticized Trump’s phone call with Ukraine’s president, Trump tweeted, Arrest for Treason?⁷

But it’s not just Trump. If you look carefully, you can find accusations of treason everywhere; nearly every prominent politician has been accused of treason at some point, often in hysterical and breathless prose. From some of the less reputable corners of the internet, we learn, JUST IN: Chuck Schumer Just Got The WORST NEWS EVER!—Treason Charges Probable . . .⁸ and BREAKING: Trump U.S. District Attorney to Pursue TREASON Charges Against Barack Obama!⁹ A MoveOn.org petition demanding a treason trial of Mitch McConnell has attracted over 2,100 signatures. The petition claims that McConnell is purposefully hurting the American economy to benefit his Chinese father-in-law’s businesses and industries. That is treason.¹⁰ A Change.org petition demands a thorough investigation by the FBI, into the practices of the DNC, to seek an indictment against Debbie Wasserman Schultz, and her co-conspirators, to bring them to justice for TREASON, against the American People.¹¹ The charges extend even into the worlds of Hollywood and professional sports. Actor Jon Voight recently accused Shia LaBeouf and Miley Cyrus of teaching treason by protesting Donald Trump.¹² And when Colin Kaepernick refused to stand for the national anthem, he was denounced as a traitor by NFL officials.¹³

What are we to make of this profusion of treason claims? Some of them are mere rhetorical hyperbole, a generic term for some perceived disloyalty. In casual conversation, for example, one might use the term traitor to describe a cheating spouse or a business partner hired away by a competitor. No one would interpret such a claim as referring to criminal activity.

Treason, however, also has a distinct legal meaning. Each nation defines treason differently, but the core concept is betrayal of one’s country. In England and America, the law historically viewed treason as the most horrific crime a person could commit. Judges routinely described it as worse than murder, and the sentences imposed for treason bore this out. Whereas murderers were merely hanged, convicted traitors in England received a far more brutal and elaborate punishment. The culprit was drawn to the gallows behind a cart, and then partially hanged by the neck. While he was still alive, his entrails were taken out and burned in front of him, his genitals were cut off, and, finally, he was decapitated. His body was sliced into four pieces, which were then placed on stakes alongside the head in highly visible locations. It was believed, probably correctly, that this procedure would have a significant deterrent effect on all who witnessed it.¹⁴

Many of the current allegations about treason, though, are not merely rhetoric, but sincere (although often incorrect) assertions that a person has committed a criminal offense. Such claims are made to encourage a prosecution, possibly leading to an execution or at least to a lengthy sentence of imprisonment. These allegations should not be tossed around lightly. To accuse someone of treason is to accuse him or her of the most significant offense known to American law.

But what exactly is treason? The answer would appear to be simple—the crime is specifically defined in the Treason Clause of Article III of the U.S. Constitution, which states, 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 language is clear and seemingly nontechnical. Why would a reporter, or anyone else, need to turn to an expert?

In reality, the Treason Clause turns out to be constitutional quicksand. In a 1945 decision, the United States Supreme Court warned that the Treason Clause’s superficial appearance of clarity and simplicity . . . proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract interpretive generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty.¹⁵

Supreme Court justices are not usually so candid about the difficulty of their cases. But controversy and difficulty is an entirely appropriate summary of American treason law, a field in which seemingly obvious intuitions are often wildly off the mark. The body of law surrounding treason is complex, contested, and often rooted in even more obscure strands of English law. As a result, there is usually no simple answer available on the internet or anywhere else.¹⁶

Controversy, difficulty, and complexity, however, are not desirable qualities in a nation’s criminal law, which is supposed to provide clear notice as to what conduct is prohibited and what is not. The allegations about Donald Trump have greatly increased public curiosity about treason, but it is more difficult than it should be for interested citizens to find reliable information about the offense. Increasingly shrill accusations of treason on all sides of the political spectrum have done little to advance public understanding; indeed, they tend to muddy the issue far more than to clarify it. What is needed is a reliable overview of the American law of treason that everyone can understand.

On Treason has two broad goals. First, this book seeks to explain, in language clearly intelligible to nonlawyers, the core principles of American treason law, including many areas that are not widely understood. My intent is to arm the reader with the tools to identify what counts as treason and what does not in the vast majority of cases. Sometimes the question can be genuinely hard, because there are issues that haven’t been squarely resolved by courts, or because modern developments have challenged the factual assumptions underlying certain doctrines. In these cases, I have tried to lay out the arguments on both sides, recognizing that courts might resolve the issue either way. The appendix allows you to test your knowledge by applying the law to a variety of factual situations in the form of bar exam–style questions.¹⁷

Second, the book relates the stories of significant treason cases in American history. Although treason trials are now a rarity, they have played an important role in our country’s development. Our very existence as an independent nation was formed in an act of treason against Great Britain. Our greatest national crisis, the Civil War, was triggered by the decision of Southern states to traitorously wage war against the United States. The stories of Benedict Arnold, Aaron Burr, Jefferson Davis, and others are fascinating, not just because of their colorful details, but because they illuminate fundamental aspects of our national identity.

Although all law is deeply rooted in history, treason law bears an especially distinctive historical imprint. The law of treason cannot be understood without knowledge of the historical circumstances that gave rise to the doctrine, and the history of particular treason trials cannot be understood without knowledge of the legal doctrine that governed them. This book accordingly interweaves chapters focused primarily on legal doctrine with chapters exploring particular cases. But the historical chapters contain plenty of law, and the legal chapters contain plenty of history.

We can begin the story in the sweltering Assembly Room of Independence Hall in Philadelphia in the summer of 1787, where the delegates to the Constitutional Convention drafted the Treason Clause of the United States Constitution. The words were written in English and in many respects appeared quite modern. But the key phrases were actually over four hundred years old, echoing the words of an English statute, originally written in French, to solve a dispute about the inheritance of land.

So let’s open the doors to the Assembly Room and see how the drafters made the fateful decision to constitutionalize American treason law, a decision that still governs the fates and fortunes of the disloyal over two hundred and thirty years later.

1

The English Origins of American Treason Law and the Adoption of the Constitution’s Treason Clause

In reality, we wouldn’t be allowed to open the doors to the Constitutional Convention. The Convention met in secret, fearful that any publicizing of its deliberations would risk undermining the final product. So if we sneaked into the room in late August 1787, what would we find? Hot, sweaty, grumpy men who had been deliberating for several months and were eager to wrap it up and head home. Philadelphia in August is usually hideous, and it was especially hideous without air-conditioning, in uncomfortable clothing, and in a room with the windows and doors tightly sealed up. To a modern nose, the aroma would probably not have been particularly appealing.

But the delegates were doing something extraordinary on that August day. They were writing into the nation’s proposed constitution a definition of treason. No state constitution had contained any such provision. But here, enshrined in the supreme law of the land, would be a binding definition of treason that Congress and presidents could not alter. Treason against the United States, the delegates wrote, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. It is the only crime specifically defined in the Constitution.

Although defining treason in a national constitution was a new idea, the phrases the delegates used were not pulled out of thin air. Every lawyer at the Convention, and probably most nonlawyers as well, would have understood the significance of the terms employed in the definition. They were technical legal terms, rooted in an English statute that was over four hundred years old.

In 1351, the English Parliament enacted the Statute of Treasons.¹ Like all English statutes at the time, it was written in French. Ever since the Norman Conquest of 1066, French was the formal language of English government. The statute limited the crime of treason to seven basic offenses. Roughly translated, they are (1) compassing or imagining the death of the king, the queen, or their eldest son and heir; (2) violating the wife of the king, the king’s eldest unmarried daughter, or the wife of the king’s eldest son; (3) levying war against the king in his realm; (4) adhering to the king’s enemies in his realm, giving them aid and comfort in the realm, or elsewhere; (5) counterfeiting; (6) killing the chancellor, the treasurer, or the king’s justices; and (7) the murder of a master by a servant, a husband by a wife, or a prelate by a cleric. The seventh category would later come to be called petty treason to distinguish it from the others, which constituted high treason.

The framers used this statute as the starting point for their definition of treason. It was easy to see that many of the offenses in the English statute would be inappropriate in the new republic of the United States. Accordingly, the Convention dropped the provisions about compassing the king’s death. Not only was there no king in America, but this provision had generated some of the most egregious abuses under English law. Sleeping with the king’s wife was easily dispensed with. Counterfeiting was obviously a serious crime, but it no longer seemed like high treason, so the Convention empowered Congress to punish counterfeiting as a separate offense. Similarly, the Convention dropped the provisions about killing high government officials—presumably murder laws would be sufficient to deal with the problem. And there was no suggestion that petty treason had any business being in the Constitution. What was left was levying war against the king in his realm, which the framers changed to levying war against [the United States], and adhering to the king’s enemies in his realm or elsewhere, which the framers changed to adhering to their enemies, giving them aid and comfort. Thus our Constitution contains language, roughly verbatim, from an English statute that is now over six hundred and fifty years old.

Why did the English Parliament feel a need to limit the scope of treason in 1351? As historian J. G. Bellamy has pointed out, the statute was a direct result of the royal judges trying to extend the common law of treason.² To some extent, Parliament was concerned about protecting English subjects from abusive treason prosecutions. But money was probably an even more significant factor. In 1351, England was still a feudal society, in which almost all wealth was held in the form of land.³ Under the feudal system, tenants held interests in land from their lords, and these interests were subject to a variety of complicated rules, including restrictions on inheritance. If a tenant died without an heir, the land returned to the lord’s control, and he could now grant it to someone else (for a fee, of course). A felony conviction had the same effect—the convicted felon’s lands would be returned to his lord. In both of these circumstances, death without heir and felony conviction, the land was said to have escheated to the lord.

But there was an important exception to the escheat rule. If the tenant was convicted of treason, the land reverted directly to the king, and the lord received nothing. Accordingly, powerful landholders had a strong interest in seeing the crime of treason narrowly defined. Every treason conviction was effectively a hit to their pocketbooks. The petitions to narrow the law of treason all emphasized the loss of the escheats as a primary justification.⁴ So the Parliament of 1351, composed largely of wealthy landholders, adopted the Statute of Treasons in large part to shore up its own financial interests.

As the feudal system gradually disintegrated, this justification for the law was largely forgotten, and the Statute of Treasons became celebrated as a great gift from Parliament to the people. In the early seventeenth century, for example, the famous jurist Sir Edward Coke wrote that the Parliament that enacted the statute was called Benedictum Parliamentum [Blessed Parliament], as it well deserved. Coke argued that the only English legislation more honored than the Statute of Treasons was the Magna Carta.⁵

This view was shared by the members of the Constitutional Convention. Pennsylvania delegate James Wilson, a primary architect of the Treason Clause, was later appointed to the Supreme Court by President George Washington. In a celebrated series of law lectures delivered while he was a justice, Wilson explicitly linked the Treason Clause to the English Statute of Treasons. Wilson argued that the Constitution’s definition of treason was deliberately transcribed from a part of the statute of Edward the third so that its language would be recommended by the mature experience, and ascertained by the legal interpretation, of numerous revolving centuries. Wilson added, This statute has been in England, except during times remarkably tyrannical or turbulent, the governing rule with regard to treasons ever since. Like a rock, strong by nature, and fortified, as successive occasions required, by the able and honest assistance of art, it has been impregnable by all the rude and boisterous assaults, which have been made upon it, at different quarters, by ministers and judges; and as an object of national security, as well as of national pride, it may be well styled the legal Gibraltar of England.⁶

Three significant legal results flow directly from Article III’s definition of treason and its explicit use of terminology from the English Statute of Treasons. First, as the word or in the clause makes clear, there are two distinct forms of treason: (1) levying war against the United States; and (2) adhering to their enemies, giving them aid and comfort. Each was treated as a completely distinct offense under English law, and each had its own particular definition. American law has followed this practice and has treated the offenses as entirely separate. One can levy war against the United States, for example, without adhering to our enemies, just as one can provide aid and comfort to our enemies without levying war against the United States (sending money to the enemy is an obvious example).

Second, because the Treason Clause requires that treason consists only of levying war or adhering to enemies, the law of treason cannot be applied to ordinary political disputes or disagreements about governmental policy. Harshly criticizing the government, for example, can never be the basis of a treason prosecution. As Chief Justice John Marshall explained in 1807, treason is the "most atrocious offense which can be committed against the political body, so it is the charge which is most capable of being employed as the instrument of those malignant