The crime of treason holds a unique place in American law. It is the only crime expressly defined in the US Constitution. And there is a very specific reason for this: The Framers, well aware of its abuse by the State in Pre-Revolutionary England, wished to ensure that it remain narrow, limited, and rare. And their intention has been respected, as there have been few treason prosecutions in American history – only one since 1954. Despite colloquial calls for treason in political discourse, which are, to be sure, both reckless and ignorant, Americans of today are generally not afraid of being prosecuted for treason the way a British subject would have been in King Henry VIII’s England. And of course, that’s a good thing. We don’t want that to change. But we also need to recognize treason when it happens because it is the kind of crime that can subvert a nation, a high crime indeed. This is why commensurate punishment includes death. So it is with solemn conviction the we must acknowledge and act when confronted with treason.
The attack on the United States Capitol on January 6, 2021 clearly fits the limited definition of treason set out by the Framers and should be prosecuted as such. Failure to do so will cause irreparable damage to the Republic.
Article III Section 3 of the Constitution defines treason 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 first element of the crime requires the “levying of war” against the United States. Early on in 1807, the US Supreme Court made clear that “levying of war” requires action, not just a plan, on the part of the alleged traitors (Ex parte Bollman & Swarthout). In that case the Court exonerated two co-conspirators in Aaron Burr’s infamous plot to overthrow the American government, because the plot had not been “carried into execution by an open assemblage of men for” the treasonous purpose. So an inchoate plan, while possibly otherwise criminal, cannot on its own constitute the crime of treason.
The plot ripens into treason upon the “assemblage of a body of men.” To wit: “if in its progress the subversion of the government of the United States in any of their territories was a means clearly and necessarily to be employed, if such means formed a substantive part of the plan, the assemblage of a body of men to effect it would be levying war against the United States.” So a plot to subvert the United States becomes more than just a plot, it becomes levying war against the United States, once people assemble to effect the plan.
Further, in the most recent seminal case on treason, the Court, in the 1945 case of Cramer v. United States, wrangled with the notion of what kind of an overt act would be sufficient to constitute treason, and how related that act must be to the treasonous intent. In modern times the careful intellectual discourse over the law of treason has revolved around this core issue. The case of Edward Snowden is probably most famous among them.
But the attack on the Capitol on January 6, 2021 does not require the subtle scrutiny or intellectual wrangling of the treason cases that are the subject of modern scholarly debate. On that terrible day in American history, a large number of militants – likely in the thousands, and in any case clearly “an assemblage of men” – undertook the overt act of breaking through Capitol Police to raid the United States Capitol Building, killing at least one Capital Police officer, and stopping the processes of American government.
And this was not a random mob. The perpetrators were organized, proudly donning their insurrectionist uniforms and waving their battle flags. Further, it is not clear to what extent at this point, but it is likely that the mob had assistance from within, given how easily they broke into what should have been one of the most secure places on Earth. Whatever the facts in the end reveal, it is clear that these people were organized and that they had a common goal – a mens rea.
And the mob did not act on a random day. January 6, 2021 was the day the Constitution prescribed the counting of Electors to finalize the process for choosing the President of the United States. It is a necessary step on the procedural side of the Constitutionally decreed peaceful transfer of power. It is done in the presence of a joint session of Congress and in the People’s House. To those of us who value democracy, it is a sacred rite. And as that sacred rite began, the insurrectionists violently broke through the doors of the Capitol, specifically intending to disrupt the process, and thereby the peaceful transfer of power. But disruption itself was not the ultimate goal.
Their final solution was ordained by their leader - to overthrow the American government. Having exhausted legal recourse to challenge his clear electoral loss, the failed 45th president rallied his followers to convene on January 6th in Washington DC outside the Capitol. His clear intent was to retain the presidency by stopping the process effecting the Constitutionally prescribed peaceful transfer of power with the force of an angry and violent mob.
He promised them it “will be wild!”
Indeed it was.
Again, it is not clear at this point how many were involved in what amounted to an attempted coup d'état.
What is clear, is that there was a plot followed by violent overt acts to subvert the United States of America.
The plot, however loose, however haphazard, however bumbling and incompetent, was nonetheless a treasonous plot. The Constitution has no “idiot exception” to Article III Section 3.
And the execution, however inept, however ineffectual, however failed as to its goals, ended in death and destruction, far exceeding the Constitutional requirements for treason. It was an act of war on the United States no less than was the attack on Pearl Harbor.
In the wake of all this murder and desecration, Trump unapologetically goaded his foot soldiers, reassuring the murderers that “we love you, you’re very special” and proclaiming with the belligerent exuberance of a rebellious child, that they should “Remember this day forever!”
That last part is one thing Donald got right. We should all remember January 6, 2021 forever.
On that day, there was an assemblage, there was an overt act, there was treasonous intent to subvert the United States of America…
On January 6, 2021 there was treason.
The incoming administration must prosecute those who perpetrated this crime, starting with Donald J. Trump. If they do not, he and his seditious followers will be emboldened and their next attempt might not fail.