San Antonio Express-News (Sunday)
The past, present and future of treason
Once was the time Carlton F.W. Larson’s phone rang very little. The Martin Luther King Jr. Professor of Law at the University of California Davis School of Law, Larson spent most of his work hours teaching students about American constitutional law and Anglo-American legal history. He was a go-to source for news outlets seeking expertise or clarification on the law of treason, but once that was a quiet nook in his field of study. No longer.
Larson now finds himself regularly contacted about the law of treason because the word “treason” has become a bipartisan talking point as those who understand the subject less than Larson attempt to use it to undermine their adversaries.
Larson’s first book specifically addressed treason and the American Revolution. His new “On Treason: A Citizen’s Guide to the Law” is a broader history of the subject, from the days of the Revolution to treason’s status as the only crime specifically mentioned in the Constitution to our tempestuous present in which it is applied rather liberally.
Article III, Section 3 of the U.S. Constitution is printed at the outset of the book:
“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.”
At that point, Larson takes over the narrative, telling stories about treason — both actually committed and recklessly insinuated. His history includes rebellions and espionage, wars and elections. Larson clarifies numerous recent accusations of treason in the book; more often than not the accusations don’t fit the definition. But “On Treason” was also published late last year, so future editions may require additions to cover events that occurred in recent weeks. Larson discussed the history of treason in the States and how recent events may come to be prosecuted and regarded.
Q: Early in the book is the phrase “another story has just broken,” which feels like a million treason accusations ago … That said, I found the history enlightening. Our culture uses “treason” like a profanity, just without some of the puritanical mustard.
A: (Laughs.) I know. I worry some of this seems quaint now. But you’re correct. We have reached a point where we just toss out the word “treason” at anybody who does something we don’t like, or someone who has done something we consider bad.
Q: How has treason scholarship changed for you over the past decade?
A: I’ve been researching the subject since 1996. That was my senior thesis in college. And it became a book about the American Revolution.
And then there was some interest after 9/11, how treason law applies to terrorism circumstances. But generally I heard little from the media. There were some minor inquiries in 2010, and then the Edward Snowden question in 2013. It exploded in 2016 and 2017. Certainly, there was treason rhetoric in fringe circles prior to them, but it became mainstream. I started to get the Washington Post calling me to ask if President (Barack) Obama committed treason because that was being asked. And the answer was no, but we’d already reached a bad point by then, just by the fact that it was even asked.
Q: A point of clarity in the book about dealing with foreign entities: They have to be declared enemies for an action to constitute treason. So dealings with Russia could violate laws. But they don’t constitute treason.
A: Correct. Even handing off secrets to Russia, that makes it sound
like someone is a traitor in the colloquial sense. And it would be treason in other countries. But ours has a distinct quirk that makes it not the case. I get emails insisting, “You’re an idiot, Russia is clearly an enemy, and they did this or that.” Everyone is entitled to their opinion, but that’s not true. One of the most solemn decisions a government can make is deciding who is an enemy. Just because you don’t like things they did doesn’t make it so. I refer to Russia as an adversary, which I think is a more accurate way to describe it. They’re clearly not a friend. They’re trying in many ways to harm us. But “enemy” is a technical definition. You can’t just use that term. It would trigger things like the Trading With the Enemy Act, all kinds of legal implications. If we were in a war with Russia and we saw their military, we could shoot at them, and they could shoot at us. Far as I’m aware, that’s not what we’re doing.
Q: You refer to “controversy and difficulty” with regard to the Constitution and treason, which runs contrary to what one might champion as a literalist reading.
A: Yes, there’s a belief among many people that the Constitution answered all conceivable legal questions legally and decisively in 1787. That’s a silly thing to imagine. The framers themselves started disagreeing almost immediately about basic questions. Can the president fire a Cabinet officer? Can Congress charter a national bank? It would be impossible for a document to answer every question. They sure as heck didn’t know in the 1790s whether a video of committed treason fits the “two Witness” requirement. We have to use a bit more judgment that we have from 230 years more knowledge.
Q: There’s a passage in the book that until a week ago seemed on point. You refer to “men gathering with guns, forming an army, and marching on the seat of government” as a scenario that “has been anachronistic for decades and utterly implausible in the twenty-first century.” Do you believe the events at the Capitol constitute treason?
A: Yes, I think so. I did a piece for the Washington Post last week in which I said the framers would have viewed this as treason. It was very interesting to me. I spend so much of my time responding to people pushing claims of treason. And I’m constantly claiming that the claims are not treason. But this is the closest thing to what is described in the book as treason. And that’s very odd because for the last 100 years, treason has been thought of in aiding-theenemy cases, not internal insurrections. The last one we had was in West Virginia with miners nearly 100 years ago. You look back to the Whiskey Rebellion and Fries Rebellion, which involved armed forces, an assemblage of men trying to disrupt the law of the United States. And that’s exactly what happened here. At minimum, they were trying to disrupt the Electoral Count Act, and there are implications of treason under that. It gets a little tricky because of the Fugitive Slave Act, where Justice (Robert Cooper) Grier said you have to attempt to overthrow the government entirely. That raises a hard question: whether disrupting the counting of a presidential vote is the same as overthrowing the government. I think one could argue either way. They weren’t trying to completely topple the government; there was a sitting president there. On the other hand, one of the most significant things Congress does is this peaceful transition of power. So it’s not beyond reason to say treason could be considered.
Q: Do you think we’ll see anyone tried for treason?
A: I don’t think so. I don’t think prosecutors will go for that. There’s so much going on that they’re going to have to do with this situation, they won’t want to add the complexity of the “two Witness” requirement. But what I saw, armed mobs … I never thought I’d see it.
Q: More than 150 years later, our language about the Civil War has become gentler. But the book makes clear that while we have codified terms such as “rebels,” they committed treason.
A: Oh, it was treason. People at the time were very clear about their intentions. Now it seems impolite to say that, so we use terms like “rebel,” which is slightly more sanitized. A rebel is the kid in high school who mouths off to the teacher — someone with a dismissive attitude toward authority. “Traitor” conveys what was at stake, which was people levying war against the United States in the most extreme way.
Q: As the guy who gets called for all things treason, how do you feel looking forward?
A: I want things to go back to being quiet again. ( Laughs.) As much as I love getting calls from reporters, they’re always asking whether the president has committed treason, and I prefer to live in a world where that doesn’t happen. And I think we’ll be there again. In a few days, things will calm down a bit, I hope. But I’ve said that before.