“If this be treason, make the most of it!” – Patrick Henry
Treason
Treason is a simple concept that most Americans understand. It’s “to go against your country”. That sounds simple enough. We think of Americans who took the enemy’s side in war from Benedict Arnold to Tokyo Rose. Some might even think of the Ethel and Julius Rosenberg, who helped give the plans for an atomic bomb to the Soviet Union at the end of World War II.
And we all know the maximum penalty for treason, death. It’s been that way literally from the beginning of written history, though for centuries there were even greater penalties. “Corruption of Blood” is when a traitor’s family is held responsible for the treason. That is specifically banned in the US Constitution. And, of course, for those who remember the end of the movie Braveheart, the English had an exquisite way of exacting the death penalty – drawing and quartering. Without ruining anyone’s breakfast, it wasn’t pretty. The US Constitution banned that as well, in the Eighth Amendment.
Treason is closely defined in the Constitution, Article III, §3, Clause 1:
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 Courts have defined that a treasonous person must “adhere” to “enemies” and give them aid and comfort. So someone who is simply against the government of the United States, an anarchist for example, isn’t a traitor. And neither is an insurrectionist.
Insurrection
So when we look at the events of January 6th, 2021, we can’t look at them through the lens of treason. Yes, there clearly were overt acts, and the entire world bore witness as they attacked the Capitol. But while we might considering them as “levying war”; it’s difficult to define what they did as “war”.
In the US Civil War, the leaders of the South were levying war, raising armies against the government, and even negotiating for foreign aid. In fact, Jefferson Davis, the President of the Confederacy, was charged with treason. That was never prosecuted: while US President Andrew Johnson wasn’t a Confederate, he did want the country to “get back to normal” and end Reconstruction as quickly as possible. A Davis treason trial would prolong the Reconstruction, and reopen the wounds of war. No one has been tried for treason in the United States since 1952, when an American citizen was convicted of aiding the Japanese in World War II.
Sedition
The “Oath Keepers” did not commit treason in the Insurrection. They did organize to attack the US Capitol, and they were prepared to wage an armed conflict (the weapons were “stashed” in hotels in Virginia). And, they did launch military-style operations to find Vice President Pence and Speaker Pelosi. That failed. They were “insurrectionists”, but not traitors. They committed a different crime under US law, a more complicated concept in law. So they were seditionists.
Sedition might be considering “treason-lite”. It is not defined in the Constitution, but is simply part of the US Code of laws. 18 U.S. Code § 2384 states:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Oath Keepers
The charge of sedition has not been used lightly by the Department of Justice. Prior to the Insurrection, the last sedition trial was 2012 in Michigan (for MSNBC fans, the US Attorney who tried the case was analyst Barbara McQuade). The judge threw the case out in mid-trial. The problem was: there is a thin line between a failed conspiracy the meets the definition of sedition, and “free speech” under the First Amendment. The Judge ruled that the “evidence” the Government brought to show conspiracy was actually expression of “free speech”.
So sedition, while easier to convict than treason, is still a very difficult charge to prosecute. That makes the Oath Keepers trial result this week even more significant. Five members of the so-called militia were tried for various crimes, all including seditious conspiracy. Two leaders of the group, Stewart Rhodes and Kelly Meggs, were found guilty of sedition. The other three were convicted of lesser charges.
Dealing Up
The prosecutors proved to the jury that there was a conspiracy among two or more people to; “…prevent, hinder or delay the execution” of Congressional certification of the Presidential election of 2020. Rhodes and Meggs are going to Federal prison for years. Out of the almost one thousand charged for the Insurrection, less than ten are held for sedition or conspiracy (Insider). More significantly, all of those charged so far were outside of “Trump World”. None of the financiers of the demonstrations on the Mall, or with direct connection to the Trump campaign, has been charged.
And it’s that “next step” that we await. We know that Stewart Rhodes was in communication with Roger Stone. Roger Stone was in the Willard Hotel “war room” with Steve Bannon, and Bannon was in direct communication with White House Chief of Staff Mark Meadows. And, of course, the Chief of Staff communicated with his boss, the President of the United States.
Rhodes and Meggs face long prison terms. The others charged now feel the same pressure before trial. Will one or more of them “cut a deal” with Justice, and bring Stone, Bannon and Meadows directly in line for charges? And who, then, comes next?
