By Philip Drucker
Today, I start with a simple concept. The Constitution is not a penal code. It does not purport to, nor does it contain any specific guidance for any potential crimes and/or punishments except one. Treason. Article III, Section 3 is as follows;
“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 attained.”
This brief passage would appear to raise more questions about constitutional treason than it answers. I don’t know about you, but before I’d contemplate an act of treason, I’d like to know what the potential punishment is. Fortunately, the answer is found in 18 U.S. Code § 2381, conveniently titled Treason.
“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.”
Death it is. Next, an obvious term for clarification would be “Attainder of treason.” An attained person loses all protection of law during their life. “Corruption of blood” historically refers to the rights of testamentary inheritance, specifically the right of my descendants to my property. So, as a practical matter, I and my potential heirs lose the rights to life, liberty and the pursuit of happiness, in this life and the next, if possible.
With that in mind and taking into consideration the Founding Fathers, by signing or adhering to the Declaration of Independence, were all traitors to the Crown and thereby knew a thing or two about the subject first-hand, let’s look at some early examples of treason.
The best known Revolutionary War traitor was Benedict Arnold. The American General who apparently having his feelings hurt by lack of recognition for his service switched sides. However, the man whose very name is synonymous with treason set sail for England in 1779 and never faced charges for treason in America.
My personal favorite traitor was Aaron Burr. Our third vice-president, having shot Alexander Hamilton during a duel and as a result having no real political future ahead, decided to invade Mexico and start his own empire. It’s good to have ambition, isn’t it? Unfortunately, Burr’s vision also included at least a part of the western United States and he was tried for treason. Burr was acquitted by Chief Justice John Marshall, the fellow who by announcing his own power to “judicial review” is responsible for interpreting or, “shaping” the contours of Constitutional Law by filling in the blank spots with literally his own personal views and opinions. In this case, Marshall decides, and thus becomes law, that to prove treason, war must be levied against the United States, never mind the “or”. If you are keeping score, starting another country is OK, if you don’t declare war against the country you are planning a potentially massive land grab against. Good to know. Going forward, there are some interesting stories pertaining to constitutional level treason.
The aftermath of the US Civil War saw Mary Surratt the first woman convicted of treason and the first female hanged by the Federal government. This despite the facts that other than owning a boarding house at which John Wilkes Booth stayed at, her role in any additional nefarious acts of treason are clearly unclear.
World War II saw the convictions of Max Hans Haupt, the father of a Nazi conspirator, for, well, spawning a traitor and a guilty verdict for pacific theater Tomoya Kawakita. Nicknamed “Meatball” by the POWs it was found his role (and defense) of being an interpreter did not include overt acts of malice torture and violence against American soldiers and he was ultimately sentenced to death by “old sparky” or, the electric chair. Fortunately for him no less than former Five Star General and now President Dwight D. Eisenhower having more compassion than our too big for his own linguist britches commuted his sentence to life in prison. Kawata remains the last person convicted of and sentenced to death for treason.
Both Tokyo Rose, Iva Toguri d'Aquino, the American born daughter of Japanese parents, and Axis Sally, Ohio born actress Mildred Gillars, were found guilty of treason on allegations and evidence of undermining troop morale and making threats on D-Day over the radio. Funny how lying on the radio can get you in trouble. Now, it not only tolerates drug addicted, serial monogamist racists but rewards them with millions.
Now before you start with the what-a-bouts, the Rosenberg’s were convicted of espionage, Alger Hiss of perjury (yes, perjury), Chelsea Manning was court-martialed for crimes related to espionage and Edward Snowden has yet to be tried for either his patriotic acts as a whistleblower or despicable acts of treason.
Going forward, is it possible there may be a trial or two for treason within the Trump (if not for himself) administration? My take is as Trump continues to set new “standards” of presidential conduct, our Constitution is elastic enough to change, adapt, re-calibrate and correct his actions and prevent future would be tyrants from aiding and abetting the enemy during times of war or otherwise.
In the end analysis, look for a whole slew of new standards and guidelines for presidential conduct codified into law. At a minimum, a sitting president will be indictable for his/her criminal acts. You can take this one to the nearest Federally insured bank.
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