Dan Snow's History Hit - Treason in America

Episode Date: January 14, 2021

Constitutional law and legal history scholar Carlton Larson talked to Dan during Christmas about treason in the American legal system. How is it defined in the US constitution and how has it been used by prosecutors over the centuries? The chat took place before the insurrection at the Capitol but we thought we would broadcast it anyway. We believe it has become even more relevant given the events of the last week.

Douglas Adams, the genius behind The Hitchhiker's Guide to the Galaxy, was a master satirist who cloaked a sharp political edge beneath his absurdist wit. Douglas Adams' The Ends of the Earth explores the ideas of the man who foresaw the dangers of the digital age and our failing politics with astounding clarity. Hear the recordings that inspired a generation of futurists, entrepreneurs and politicians. Get Douglas Adams' The Ends of the Earth now at pushkin.fm slash audiobooks or wherever audiobooks are sold. Hi everybody, welcome to Dan Snow's History Hit. To impeach or not to impeach? What high crimes and or misdemeanors might Donald Trump

be guilty of? Everyone's talking about it again. Will he become the first president in US history to lose the popular vote twice and to be impeached twice? Remarkable. This episode of the podcast, I want to put out straight away because it's aging. It's aging fast. A couple of weeks ago I talked to a legal history scholar, Carlton Larson. He's the professor of constitutional law and legal history at the UC Davis School of Law, one of the best law schools in the US. We talked about treason. He took me on the tour, starting with the treason clause of the United States Constitution. But he said, despite the simplicity of the definition of treason in the Constitution, it has been very, very difficult to pin treason on people throughout US history. This was recorded, this was recorded after the US election, but before the events in Washington this week.

So some of it will have aged badly, but I want to get it out because I do think this scholar provides really interesting context what's going on in the US at the moment. If you want to come and watch some of the world's best historians in doing live shows with me, I'm doing them in the UK this October post-vaccine. We're going on a theatre tour of the UK. We're traveling around and we are going to be talking to local historians. We're going to be talking to some of the most recognized historians in the country. We're going to be doing this show live. If you want to come and check it out, please do. You just go to historyhit.com slash tour. You're going to absolutely love it. We're going to be practicing social proximity. It's going to be great. I can't wait to see you all actually. I'm genuinely pretty excited to get out of my house. So see you all there. But in the meantime, everybody, enjoy the excellent Carlton Larson.

Carlton, thank you very much for coming on the podcast. I'm very happy to be here. Treason is a word that gets bandied around a lot, especially at the moment. And the good thing about the US of A is everything was written down at the beginning and as they went along. So what in the US did the founders or the re-founders later on think of as treason? So you're right. I mean, unlike England, we have a written constitution. And one of the things in Article Three of our constitution is an actual definition of treason. And so this article says treason shall consist only of levying war against the United States or adhering to their enemies, giving them aid and comfort. And so essentially, that's it. If it doesn't fit that definition, it can't be treason under US federal law.

Have there been many charges of treason brought in the history of the Republic? There haven't been that many actual cases brought, but there have been a number of instances of treason. Certainly, the American Revolution was itself an act of treason against Great Britain. And so that was pretty widespread. And there were, of course, lots of people who supported the British during that war who were committing treason against the American states. But then probably the biggest act of treason was the American Civil War, where you had hundreds of thousands of people waging war against their own government. But that didn't result in any actual prosecutions or at least any convictions at the end of the war. But it was still pretty widespread in terms of the number of people who committed treason. Because obviously there were hundreds of thousands of people who bore arms against the US. What was the bar for charging them with treason? When General Lee surrendered to General Grant at Appomattox, Grant essentially said, I will allow you all to go home without any further prosecution by the United States. And so that was sort of seen as part of the terms of the

surrender that Lee's army was free to go home. But the bigger bar was that when you have this type of situation, widespread prosecutions once the war is over and potential executions are just not a good way to bring the country back together again. And you certainly aren't going to prosecute low-level people unless you also prosecuted the very highest level leaders. And so that meant that the very first person you would have to prosecute would be Jefferson Davis, the president of the Confederacy. And he actually was indicted for treason. And he was in legal jeopardy for about two years, eventually was pardoned by President Andrew Johnson. And so his case never went forward, he would have been the most likely to have been convicted.

I mean, Jefferson Davis was a traitor. Like, why was there unwillingness to carry forward that prosecution? Well, initially, there was a fair bit of enthusiasm. President Johnson had insisted that treason must be made odious. And there was clamor among many people in the North that Jefferson Davis should be hanged from a tree as a traitor. Part of the problem was it actually got tangled up in various legal arguments. And at that time, federal criminal prosecutions were presided over by two judges, one of whom was a justice of the U.S. Supreme Court, in this case, Supreme Court Justice Selman Chase. And he issued a ruling saying that the 14th Amendment actually barred Davis's prosecution. Now, that was only ruling at the trial level,

and it would have been appealed to the full U.S. Supreme Court. But there's a possibility that that would have succeeded and allowed Davis to walk. And so Johnson chose at this point just not to fight it and just throw in the towel. Now, it's a fairly ridiculous argument. But Chase basically was trying to become president himself. He wanted a political career, and he thought that presiding over the Davis trial was a political death trap. And so for him, he wanted a way out of it. And so he came up with a sort of very silly argument, really, based on the 14th Amendment. It's funny how treason, it seems a kind of axiomatic crime, and yet it's by its nature, it's always deeply political. Yes, that's exactly right. And

that's why I think what makes it such a distinctive crime, such an interesting one to study, is that it's not you're just kind of run of the mill, violent crime. I mean, it really is always in some type of political situation. And it tends to involve people who are not your ordinary sort of, you know, street criminals, right? These are often very high ranking people. They come from all segments of society. Many have been quite well educated. And if they succeed, they aren't viewed as a traitor. They're viewed as a hero. And so it really is kind of an all or nothing crime with the old adage, you know, if you strike at the king, you must kill him. And if you do so successfully, you are not a traitor.

Well, there's a whole bunch of portraits of a few traitors hanging in the walls of Congress, if you don't mind me saying no. So I'm over it. I'm over it. Like George III, I basically got cool with it eventually and ordered my naval ships to fly their flags at half mast when Washington died. But talk me through any successful prosecutions for treason in US history. There are a handful of people convicted after the Whiskey Rebellion and Freeze Rebellion. These were tax rebellions in the 1790s in Pennsylvania. The people convicted were ultimately pardoned by President Washington. The most recent convictions all came after World War II, dealing with people who had essentially served as radio propagandists for either the Japanese, the Germans, or the Italians. And they created sort of the largest body of recent cases dealing with actual acts of treason, and those people ended up going to prison in a number of cases.

There were a number of other charges where people were not convicted, and of course those are important too. Aaron Burr, the vice president under Thomas Jefferson, who was prosecuted but not convicted in 1807. The very famous case involving the Fugitive Slave Act, the Hanway case in the early 1850s, where again the person was prosecuted but not actually convicted. Very, very few people have ever been charged with treason in the U.S. Yeah, as a matter of actual criminal law, that's true. And as far as I can determine, only one person has actually been executed under federal authority for the charge of treason. And this was something that I only discovered a few years ago. Pretty much every treason scholar had said there'd been no federal executions, and this was actually not true. In 1847, during the Mexican-American War,

American troops entered the Republic of Mexico and conquered the region of New Mexico, and the commanders on the ground said, okay, New Mexico is now part of the United States. Everybody living here is a United States citizen, and anyone who resists us is Mexico is now part of the United States, everybody living here is a United States citizen, and anyone who resists us is guilty of treason against the United States. Well, that was utterly wrong. You don't become subject to treason law just because a military force occupies your country. I mean, if that were true, people in Baghdad would have been guilty of treason against the United States in 2003 for resisting the American forces. But a man named Hippolyta Salazar was convicted of treason for resisting the Americans and was

executed in Taos, New Mexico. And if you think about this case, it's really quite extraordinary. He was a Mexican citizen tried on Mexican soil for the crime of treason against the United States, Mexican soil for the crime of treason against the United States, a country that he had never set foot in. And he is the only person executed on a federal treason charge. And as news of this reached back to Washington, members of Congress were appalled. They realized that this was completely illegal. And the Polk administration eventually had to admit that it had made a mistake and that he was not actually subject to a treason charge, and therefore they had executed a legally innocent man. That reminds me of William Wallace in the early 14th century. He responded to his treason charge,

I could not be a traitor to the king or to Edward, for I was never his subject, which is one of the great lines. So is there something inherent about the word treason that implies giving aid to the enemies? It's a warfare. It's a conventional war. So the idea, people talking about treason now, if it's Snowden or if it's politicians, the word is bandied around by all sorts of people. Attacking the institutions of America from within feels like it wasn't in the original conception of treason. Is that right? Yeah, so internal attacks on America would basically be treated as acts of levying war

against the United States. But to meet that definition, you actually have to have some use of force. And so if you're just doing other things short of force, then that can't be treason by levying war. And when it comes to aiding the enemy, you're right, that's entirely a wartime crime. It has to be aiding groups with whom the United States is, foreign groups with whom the United States is in a state of open war. And that draws actually on English law because these phrases come directly from the 1351 English Statute of Treasons and was essentially understood as adopting English interpretations of that statute. These were legal terms of art. As you say, aiding the enemy, it wasn't just,

oh, anybody you don't like, but it had a very distinct legal meaning. Let's come up to the elephant in the room, the present. There's been accusations of treason really on both sides, whether it's Donald Trump's campaign in 2016 that worked with, whether it was collusion, certainly there was evidence of collusion between his campaign and foreign powers. And then, in fact, there was Donald Trump stood on the White House lawn and asked China to interfere in the American election this time around on TV that time. That was probably more straightforward. Democrats who said that was treasonous, is there any legal basis for that? Well, I do think it's certainly a betrayal of the country. It's not something any president should ever do. And I understand why people sort of instinctively reach for that word

treason to describe this, because it seems such an obvious betrayal of the United States. But as a legal matter, it's not actually treason, because again, he's not using force to levy war against the United States, nor is he aiding an enemy with whom we're in a state of open war. So technically, none of the things Trump has been accused of amount to treason. And as someone who's not a huge fan of Trump, I don't particularly relish having to constantly tell the media that, no, he's not technically a traitor. the media that no, he's not technically a traitor. But when we reach the point where the question is, is it technically treason or not? You've already crossed a pretty big bridge. I mean, that's the discussion. Wow. You know, what a thing to have to ask about an American president. You like all constitutionals, well, many constitutional legal scholars often say

this should be boring. We should not be on the front pages. We should not be on podcasts and TV shows discussing our work because it means something's gone bad. If you're seeing this guy, something's gone wrong. Yeah, that's exactly. I mean, no one saw me for years. I worked on way on the subject. I worked on my book on treason in the American Revolution. It was deeply fascinating to me and maybe a handful of other people. And then all of a sudden, along comes Donald Trump. And I guess I should thank him for making my academic specialty of wider public interest. But honestly, I would much prefer to go slink back into anonymity. You're listening to Dan Snow's history hit more on treason after this.

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History Hits. There are new episodes every week. Douglas Adams, the genius behind The Hitchhiker's Guide to the Galaxy, was a master satirist who cloaked a sharp political edge beneath his absurdist wit. Douglas Adams' The Ends of the Earth explores the ideas of the man who foresaw the dangers of the digital age and our failing politics with astounding clarity. Hear the recordings that inspired a generation of futurists, entrepreneurs and politicians. Get Douglas Adams' The Ends of the Earth now at pushkin.fm slash audiobooks or wherever audiobooks are sold. So there is no, OK, so there's no legal, for any Democrat citizen, there's no legal basis for any treason charges. I suspect Donald Trump may give openings for other legal actions to proceed against him on other in other areas. Right. And

that's sort of the second part of the, you know, this is not technically treason, is that that doesn't mean it's okay. Right? There's almost always going to be other things that you can be guilty of. And in Trump's case, I think there's there's probably a number of statutes he might have violated. And when we start talking about aid to foreign countries, perhaps the best example of this is the Rosenbergs who were executed in the early 1950s for passing nuclear secrets to the Soviet Union. They were convicted, not of treason, because we weren't technically at open war with the Soviet Union, but they were convicted of espionage, which at the time was a capital crime. And so we have a whole ton of other security laws

short of treason, that can get at most of the acts of disloyalty that we're most concerned about. You mentioned treason and the in the revolutionary period of the 18th century to me wants to come back and just ask a little bit about that geek out a little bit about that. Presumably it was, as we discussed with the example of in periods of conflict, particularly conflict, intrastate conflict, civil conflicts, treason is a pretty difficult thing to avoid. If you're, for example, a loyalist fighting in New York State or down in the Carolinas, technically you're committing treason, but then so are technically by British law the other side. treason, but then so are technically by British law the other side. Yes, exactly. And that's why I think, you know, the American Revolution was such a wrenching social experience for everybody who lived through it. And that is that you essentially could not avoid being a traitor. If you were loyal to Great Britain, you were a traitor to the American

states. If you were loyal to America, you were a traitor to Great Britain. And depending which side won, you could end up in a lot of trouble. And if you simply tried to remain neutral, as many people did, there were people who insisted that if you weren't actively for us, you were against us, and you were subject to potentially a wide range of legal disabilities. And this division went right up and down the Atlantic coast. It wasn't like the U.S. Civil War, where it was largely a regional dispute. You had households in every state where you had some people on the British side, some people on the American side.

And so you had families ripped apart, you had business partnerships ripped apart. I mean, everybody knew someone on the other side. This was really quite a searing social experience with this possible threat of criminal prosecution for treason hanging over everyone. this possible threat of criminal prosecution for treason hanging over everyone. Is the fact that the US is born out of treason one reason for the unwillingness to levy the charge? Is there some sort of deep institutional memory, cultural memory of that fact that makes it slightly hypocritical to go throwing, like trying people treason left, right and center? to go throwing up, like trying people treason left, right and center.

That issue did come up after the revolution when you had these tax protesters in Pennsylvania who were resisting federal taxes and they rose up in arms against the federal government in the Whiskey Rebellion and in Freese's Rebellion and insisted that they were the true heirs to the revolution, that they were doing exactly what the American revolutionaries themselves had done. The Washington administration sent an army, headed by Alexander Hamilton, to quash it. And the argument was, no, you don't get to do that. Once we've got a new country in which you are represented, you have a vote, unlike the case in the British Parliament where you didn't have a vote, and you don't get to simply resist laws by force.

But there was quite a big debate during the 1790s as to whether that was appropriate or not. And so it has been, I think, a sort of a big strand of our history. And of course, during the Civil War, the Confederates argued that they were the true heirs to the revolution by asserting their own right of sovereignty and independence. I've got to say, I'm here all day for debates, 18th century debates against about the right of resistance. I mean, that's that really gets me that gets my juices going. Just quickly, we haven't talked about the one of the most famous cases of treason. And the most fascinating is presumably Harp John Brown and Harper's Ferry. Yeah, so this is one of the great stories of American history. So John Brown in 1859,

who leads a group of men across the Potomac River from Maryland into Virginia at Harpers Ferry, which is now part of West Virginia, with the intent of launching a widespread slave revolt. And his raid is fairly quickly put down. But afterwards, Brown is tried for the crime of treason against the state of Virginia. tried for the crime of treason against the state of Virginia. And it wasn't treason against the United States because he wasn't trying to overthrow the United States government. He was, in Virginia's view, he was trying to sort of overthrow the Virginia government, even though he raided a federal armory, which is, you know, set that aside for the moment. So he's tried as a traitor to the state of West Virginia, along with several other people, He's tried as a traitor to the state of West Virginia, along with several other people,

and Brown and Edwin Coppock are both executed for that crime of treason against Virginia. This is sort of a part of treason law that isn't particularly well understood, and that is that many states have their own state treason laws. These are not bound by our federal constitutional definition. And so you can, under certain circumstances, be guilty of treason against a particular state. And almost always that would be a situation in which you tried to overthrow your state government by force and violence and without any intent to overthrow the United States government over broadly. And so in addition to John Brown, there was a famous case in the 1840s in Rhode Island

where there were two competing governments in Rhode Island, and the old government prosecuted the leaders of the new government for treason against Rhode Island. And then in the 1920s, a series of labor disputes involving miners in West Virginia actually erupted into open warfare, and several of the miners were tried for the crime of treason against West Virginia. And curiously, they were tried in the same little courthouse in Charlestown, West Virginia, where John Brown had been tried as well. We have seen examples in the last few months of militia groups. What is the definition of a militia group within the US?

Well, I mean, formally, the militia is a recognized entity under the US Constitution, which generally means what is effectively now National Guard troops under government control and supervision. And so that's almost always a government group. But we have these private groups of people running around calling themselves militia. These are just essentially random men with guns. And so you can call yourself a militia, you can call yourself a gang, you can call yourself, you know, whatever, but it doesn't have any real meaning. There is a kind of problem is that they're not, this is the thing I struggle with, because like everybody else, I say to journalists, please don't call these people malicious. But

the Lexington and Concord militiamen that fought against the traitors, anyway, the fought against the Redcoats on that battlefield. They were self-embodied, right? They were a gang with guns. Is that fair? Well, yes and no. I mean, in the sense that they still were part of a sort of organized group, often usually run by the towns. They stored their powder in common stores. And the guns were often usually subject to common inspection.

And they were, you know, drilled and as part of sort of an organized group. Okay, so they're more the heirs to the militia of the French Indian Wars led by people like Washington, then? Is that fair? Okay, so actually, okay, so that's interesting. So in fact, these guys with guns today, they've got no legal basis for themselves in militia. And in fact, they don't really have that historical cultural basis either. No, I mean, when our constitution talks about militia, you know, for example, in the Second Amendment, it refers to a well regulated militia. And that means well regulated by the government. That's what it's referring to. And one of the concerns, actually, I mean, in the Revolution was that the militia just wasn't very good. I mean,

you know, we have this myth that militia men somehow defeated the British army. That's absurd. There's no way they could do that. The British Army was the most powerful army on earth. And George Washington was just appalled with what he saw in the militia. People who didn't have the right guns, didn't know how to use them, they didn't have the right ammunition, they didn't stay very long, they would just leave and go home, completely undisciplined. Ultimately, it took the Continental Army, a professional army assisted by

France, to win the revolution. It wasn't a militia that did it, despite a few sort of early successes. But that's been part of our national myth. Yeah, Saratoga, Trenton, there's no huge militia aspect to those battles, are there? Okay, so some of those armed gangs that have recently threatened, I believe, Governor Whitmer and briefly occupied state houses in states. When might that start to tip over into treason like John Brown-esque treason? And just by its nature, a state government's going to be unwilling to prosecute on those grounds. Yeah. So the militia members that we saw, all they had was a plot. They had a conspiracy to try to do this. And there's always been a distinction between a conspiracy to levy war and actually levying war.

And a conspiracy is not. You have to actually do it. You've got to take some steps in terms of using force. And so they tried to carry it out. Then I think you might have had a plausible case of treason for levying war against the state of Michigan. you might have had a plausible case of treason for levying war against the state of Michigan. But as you note, prosecutors may well shy away from this, because there's a ton of other charges that you can charge them with.

And finding something that looks a little dated, looks a little perhaps out there, clouds up your case in a way that you don't really need to cloud it up. One example might be, if you think about the 1995 bombing of the federal building in Oklahoma City, there's a decent argument that that was an act of loving war against the United States, but prosecutors didn't add that charge. They had well over 100 murder charges to go on. And so typically, you often don't need a treason charge in order to put someone away for a very long time. And the other problem is at the federal level, there's also the requirement of two witnesses to the same overt act. And that can sometimes be quite difficult, particularly given the treason is often committed in sort of a stealthy and secret manner. Perhaps this is off your patch, but is it a crime to undermine the democratic

institutions and ideal? I mean, in the US, is it a crime to fail to recognise the result of an election and to dispute it? And for example, to articulate fealty to a shadow presidency under Donald Trump in 2021, for example? It's a political choice. Yeah, no, not that's not a crime at all. It'd be hard to imagine how you would even write a law that would make something like that a crime. I mean, we have fairly robust free speech protections. And if what you want to say is that Donald Trump is a legitimately elected president of the United States, you're entitled to say that. Now, what you can't do is, you know, sort of really act on that in a way that does undermine the government. I mean, if you're a government employee, you've

still got to listen to Joe Biden, you know, as president and all those other things. Yeah, and you don't get to go just deciding you're going to take a tack the federal government because you think it's not legitimate under Biden. You can't do any of those things. But if it's simply expressing a view, those views, even as benighted and foolish as they are,

you're free to do that. Good stuff. Excellent news. Cool. Well, thank you very much for coming and clearing a few things up for me. We didn't even get to the Second Amendment. That's very exciting. We can discuss that another time. What is your brilliant book called? It's called On Treason, A Citizen's Guide to the Law. I tell you, I've got so many on dot dot dot books from brilliant American scholars over the last four years. My shelves are full of them. Yeah, I wasn't really crazy about the on title. I said, Well, what does that add? Why don't we just call it treason, a citizen's guide to the law? Well, it turns out that search engines work much better if you call it on treason, rather than treason. And so my title

is entirely driven by search engine functionality. That's so sad. I always assumed that sort of wonderful American tradition of calling things on came from, I don't know, like the Tocqueville or something like it was a sort of particularly, it's a particular cultural thing in America. Perhaps that turned out not to be true in my case, I could not persuade my publisher to take the on off. Easy to Google, turn the on off. Yeah. Well, thank you very much indeed for coming on the podcast. Thank you very much.

Really enjoyed it. Hope you enjoyed the podcast. Just before you go, bit of a favour to ask. I totally understand if you don't want to become a subscriber or pay me any cash money. Makes sense. But if you could just do me a favour, it's for free. Go to iTunes or

wherever you get your podcast. If you give it a five-star rating and give it an absolutely glowing review, purge yourself, give it a glowing review, I'd really appreciate that. It's tough weather, the law of the jungle out there, and I need all the fire support I can get. So that will boost it up the charts. It's so tiresome, but if you could do it, I'd be very, very grateful. Thank you. That will boost it up the charts. It's so tiresome. But if you could do it, I'd be very, very grateful. Thank you.

Douglas Adams, the genius behind The Hitchhiker's Guide to the Galaxy, was a master satirist who cloaked a sharp political edge beneath his absurdist wit. Douglas Adams' The Ends of the Earth explores the ideas of the man who foresaw the dangers of the digital age and our failing politics with astounding clarity.

Hear the recordings that inspired a generation of futurists, entrepreneurs and politicians. Get Douglas Adams' The Ends of the Earth now at pushkin.fm slash audiobooks or wherever audiobooks are sold.