Over 230 years have passed since the delegates to the Constitutional Convention drafted the Treason Clause in that sweltering Assembly Room in Independence Hall. During that period, only one person, Hipolito Salazar, has been executed under federal authority for treason against the United States. Since the American Revolution, our country has felt a general unease with employing the death penalty for treason.1 Hundreds of thousands of people levied war against the United States during the Civil War, for example, but none were executed. In the World War II era, the British hanged two men, William Joyce and John Amery, for broadcasting Nazi propaganda, yet none of their counterparts convicted in the United States received a capital sentence.2
Discomfort with the death penalty, however, is only part of the story. Executions for treason have been rare, but convictions have been almost equally rare, due to the Treason Clause’s narrow definition of the crime. Although American treason law is in some ways broader than many people believe (its applicability to noncitizens is a striking example), it nonetheless allows a wide range of disloyal behavior to escape punishment as treason. Spying for China, even if committed by the secretary of defense, is not treason. Embezzling money from the United States Treasury and wiring it to Vladimir Putin is not treason. If levying war against the United States requires an assemblage of men, a lone individual detonating a nuclear weapon could escape indictment for treason. And the two-witness requirement means that acts of aiding the enemy committed in secret may never be punished as treason.
For many observers, these potential legal gaps suggest that our treason law might need an update. What was workable in the late 1700s is simply unsuited to the twenty-first century. A modern definition of treason would look quite different than the one handwritten in ink by men wearing long stockings and powdered wigs. We no longer dress in the eighteenth-century manner—why should we keep thinking about treason in eighteenth-century terms?
These arguments have considerable force, but I am ultimately not persuaded. The first problem is that the U.S. Constitution is almost impossible to amend. Under Article V, an amendment must pass by a two-thirds vote in both houses of Congress, and then be ratified by three-quarters of the state legislatures (alternatively, two-thirds of the states could call for a convention for proposing amendments, but this has never happened). Setting aside the anomalous Twenty-Seventh Amendment, the last time this process worked was in 1971. In a time of increased political polarization, it is hard to imagine the constitutional amendment process will generate new amendments any time soon. Expending the effort to do so is only justified if the stakes are truly significant, and modifying the definition of treason does not rise to that level.
The second reason to be wary of changes is the difficulty of determining what the new definition should contain. How broadly should the crime now sweep? There are excellent reasons for keeping the offense within fairly narrow contours. As the United States Supreme Court has explained, “the basic law of treason in this country was framed by men who . . . were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself.”3 And even under the narrow definition of the U.S. Constitution, the treason charge has occasionally been abused. The 1851 prosecution of Castner Hanway, a man who appears to have committed no crime whatsoever, is a perfect example. So is the case of Iva Toguri, who was prosecuted despite the Department of Justice’s own professional judgment that she was innocent. A broader definition would greatly increase the possibility of abuse.
It is hard to avoid the specter of Donald Trump when thinking about this issue. Many Americans are justly appalled by Trump’s behavior, and are convinced he is guilty of treason. Under this view, it is absolutely outrageous for a president to conduct himself in such a way that he appears to be a puppet of the Russian government. If such conduct is not treason under current law, then the problem is the law, which ought to be changed.
Yet the very depth of feeling against Trump is a strong argument for caution, given that the changes we make now may last for generations. In the Aaron Burr proceedings, the Supreme Court made an eloquent plea for sobriety: “As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both.”4
In his masterful 1960 play A Man for All Seasons, Robert Bolt imagines a dialogue between the English lawyer Thomas More and a young man, William Roper, who is convinced that the law is not sufficiently punishing an evil person:
ALICE MORE: While you talk, he’s gone!
THOMAS MORE: And go he should if he was the devil himself until he broke the law!
WILLIAM ROPER: So now you’d give the Devil benefit of law?
THOMAS MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
WILLIAM ROPER: I’d cut down every law in England to do that!
THOMAS MORE: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—Man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.5
This speech, known as the “Devil Speech,” is much beloved by lawyers and law professors for its beautiful expression of the ideal of the rule of law. Bad people receive the benefit of the law, because only some type of reliable legal process can adequately distinguish good people from bad. Only a fool would permanently destroy that process just to convict one truly reprehensible person. So, too, with treason. Just as we should not cut down the law to get at the devil, neither should we broaden the definition of treason to get at Donald Trump. Because when Trump (or some future Trump) turns round on you, with the power of the federal government behind him, armed with a broader definition of treason (and, regularly tossing off frivolous accusations of treason, he’s just the man to do it), what will protect you from an unwarranted prosecution? Trump’s reign has produced far too many casualties already; for our own safety’s sake, our nation’s treason law should not be added to the fire.
The final reason for rejecting a broadening of the treason offense is the lack of any especially compelling justification to do so. No person who has committed horrific crimes against his or her country will escape punishment solely because of the language of Article III. Our espionage laws were more than capable of dealing with Julius and Ethel Rosenberg. In proceedings arising out of the Aaron Burr case, the United States Supreme Court recognized this point, stating, “[C]rimes not clearly within the constitutional definition [of treason], should receive such punishment as the legislature in its wisdom may provide.”6 The Court reiterated this point in World War II, emphasizing that “the treason offense is not the only nor can it well serve as the principal legal weapon to vindicate our national cohesion and security. . . . Congress repeatedly has enacted prohibitions of specific acts thought to endanger our security.”7
Indeed, I am unaware of any example in our history where a truly dangerous person escaped punishment because of the narrowness of our nation’s treason laws. If such people routinely begin walking free, perhaps it is worth reconsidering the legal definition of treason. But until then, we should retain the existing legal structure that seems to work reasonably well.
And this point cannot be emphasized enough: just because something isn’t treason, doesn’t mean it is not a horrific crime. A serial killer is not a traitor. A producer of child pornography is not a traitor. The operator of a Ponzi scheme to defraud millions of people is not a traitor. But they are criminals nonetheless. Similarly, collaborating with a foreign government in an American election is not treason. Stuffing ballot boxes is not treason. And making improper corporate contributions to a campaign is not treason. But the people who do these things are still criminals, and our laws are fully capable of dealing with them.8
Disputes over treason have tended to be somewhat cyclical over American history. Periods of quiet are punctuated by periods of intense interest, such as the American Revolution, the Civil War, the aftermath of World War II, and, of course, our current heated disputes over various political figures. The contemporary rhetoric over treason will likely cool down eventually, but treason will nonetheless continue to be worthy of our attention. It is the supreme crime of American law. It has been at the center of many of our nation’s most divisive controversies. And it will remain the subject of impassioned discussion for years to come, as Americans debate fundamental questions of loyalty and allegiance. That conversation will be enriched if our citizens are able to distinguish carefully between the use of “treason” as a rhetorical matter and allegations of treason as a serious criminal offense. It is my hope that this book can help all Americans to understand—and appreciate—the difference.