What Is Treason?

In Japan it is known as gaikan zai, the “crime of foreign mischief,” and can be committed by foreigners as well as Japanese.

In Italy it is treason to do about four dozen things, including 33 kinds of “crimes against the international personhood of the state,” whatever that means. (This is the country where seismologists were convicted of not predicting an earthquake, so I wouldn’t be optimistic.)

In Thailand it is treason-ish (lèse majesté) to criticize the king. (According to Wikipedia, the king once invited criticism in a speech; that was followed by a “widespread barrage of criticism,” promptly “followed by a sharp rise in lèse majesté prosecutions.”)

In the UK, it remaineth Treason to “compass or imagine” the death of the King, or to “violate the King’s Companion, or the King’s eldest Daughter unmarried, or the Wife of the King’s eldest Son and Heir,” as provided by the Treason Act 1351, A STATUTE made at WESTMINSTER; In the Parliament holden in the Feast of Saint Hilary; In the Twenty-fifth Year of the Reign of K. EDWARD the Third, and still technically in effect today. This law actually limited (temporarily) the existing definition of treason, which—as is always the case—had a strong tendency to expand, not coincidentally because a traitor’s property was forfeited to the king.

The most common historical definition of treason is, of course, “trying to overthrow the government and not succeeding.”

The English word “treason” derives from the French traison, and that from the Latin tradere (“to hand over” or betray); “traitor” is from the Latin traditor, “one who hands over.” The words have a special history in Christianity because of the significance of Judas handing over Jesus for execution. In Dante’s Inferno, the worst punishment of all, at the very bottom of Hell, is reserved for traitors. Judas himself is condemned to be eternally munched upon by Lucifer (himself a traitor, of course). In English law, high treason also carried the most terrible punishment available; according to one source, the punishment “was that the prisoner be drawn, hanged, and beheaded; his heart, entrails, and bowels torn out and burned to ashes, and the ashes scattered to the wind; his body cut into four quarters and each quarter hung on a nearby tower; and his head set upon London Bridge, as an example to others that they would never presume to be guilty of such treason.”

In Sweden it is treason to hit the king with a strawberry tart.

But I suppose most people at the moment are probably curious about what “treason” means in the United States, unless you think it’s a coincidence that Google searches for “treason” did this right after Donald Trump asked the Russians to hack the email of his political opponent:

treasontime

Press conference started at 7:49 GMT-7 (10:49 in Florida), hack request made 13 minutes later

TL;DR: Trump didn’t commit treason.

I mentioned treason once before, in 2014 after a Florida candidate (re)tweeted that he was “past impeachment” and that President Obama should just be arrested and hanged for treasonous crimes like extrajudicial killings. See Guy Mad About Lack of Due Process Says President Should Be Executed Without Trial” (Jan. 22, 2014). As I said then, under U.S. law this kind of thing is stupid and arguably illegal, but it’s not “treason.”

Treason is defined in the Constitution (and it’s the only crime that is):

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.

U.S. Const., Art. III, § 3. While “adhering to” could be clearer, it is at least clear that the Constitution requires an act—either actually “levying War” or “giving” an existing enemy something (i.e. trading with the enemy during wartime), and there have to be two witnesses to the same “overt act.” So thinking or talking about something along these lines isn’t “treason.” (Talking is almost never a prosecutable “act.”) Aaron Burr was acquitted of treason, for God’s sake, and he was a total dick. There also needs to be an actual capital-E Enemy, and this is one reason it’s so dangerous to let the government pretend we are “at war” all the time. We’re not.

Fewer than 30 people have been tried for treason in the history of the U.S., many were acquitted, and those convicted have often been pardoned. It’s an extremely limited and rarely prosecuted crime, which is the way it should be.

People use the word “treason” loosely all the time, of course, to mean “something I don’t like that seems disloyal to what I am loyal to.” You can certainly say Trump did that. He does that a lot. But legally, treason is extremely limited, and for excellent reasons. Betrayal is something we obviously feel very strongly about, and so people tend to be willing to subject traitors to severe punishment (see above) and more inclined to maybe bend the rules when convicting them in the first place. Even more importantly, the meaning and prosecution of treason is especially prone to manipulation and misuse by whoever happens to be in power at the moment. This is exactly why the Founders put a limited definition right in the Constitution.

And they knew something about treason, since they had just committed it.

So please do criticize Trump for his inane comments, but think of something to call him (or Hillary) other than a “traitor.” There are lots of applicable words out there to choose from.

Also, no one has ever been convicted of violating the Logan Act, so people should drop that one too. But this post is already long enough.