treason

The Treason Clause Is a Catch-22

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The tensions rising between Great Britain and the American colonies in the 18th century, such as taxes disproportionately rising for the colonies, fueled dissent among the colonists against the monarchy. Yet, such dissent—whether it was simply ideological or political—that threatened the power or prevailing order of Great Britain was widely categorized as treason, particularly in the case of the colonists. The Framers of the United States Constitution, directly encountering the injustices of treason charges, clearly defined treason and established safeguards that protected the freedom of expression and thought of those being tried for the crime in the Treason Clause in Article III, Section 3. The Clause, however, is a catch-22: compelling and particular proof is required to convict one of treason, complicating the process and resulting in very few cases ever convicted of treason. Simultaneously, this process protects those being wrongfully convicted.

Though the Framers aimed to stray away from any ambiguity that may engender an abuse of power, the constitutional protection of the Clause narrows the scope of the offense, making it an umbrella term for many other similar crimes. The two types of actions that are defined as treasonous are: (1) “levying war” against the United States, or (2) “adhering to [the] enemies [of the United States], giving them aid and comfort.” The testimony of two witnesses or a confession from the person being tried is also required as part of procedural requirements. Scholars Paul Crane and Deborah Pearlstein identify the distinction between treasonous action versus thought the Framers weaved in the Clause, increasing the complexity of convicting one of treason as they must have taken concrete action against the national security of the United States. In Cramer v. United States (1945), the lawyers of Anthony Cramer, being tried because he assisted German soldiers in invading American land, argued treason charges should be reserved in times of war. This made convicting one of treason complicated because “levying war” implies one must have been unequivocally involved in an armed rebellion against the United States, and this would occur usually only in times of war. Requiring the testimony of two witnesses or either a confession, the Clause becomes even more complex as further evidence is required rather than solely circumstantial evidence that may convict an innocent person. Thus, what may seem as treason is subverted to, as Pearlstein says, “treason by any other name.” Frequently, cases of suspected treason that do not meet the particular needs of the Clause are convicted of espionage. This is seen in Rosenberg v. United States (1953), when couple Julius and Ethel Rosenberg were convicted of espionage rather than treason for revealing atomic secrets to the Soviet Union solely because they did not meet all the safeguards of the Clause.

Today, the Clause still remains complex. The January 6 insurrection of Capitol Hill by supporters of Donald J. Trump, though widely considered treason by the left-leaning American population, has not yet been tried for treason. Scholars believe the complexity the trial imposes legally, as well as the historically few cases convicted of treason, causes prosecutors to shy away from advancing with their argument. This implores us as Americans to think: Has the day come to modify the Clause to portray modern day America in context of the January 6 riot? How do we reconstruct a Clause that is free of political bias and inclusive of all Americans and their political views?

The bibliography of this written component has been submitted on Google LTI. 

Emma Zuzunaga – Article III, Section 3

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Article III, Section 3 of the United States Constitution defines treason, as well as the criteria for convicting people of treason, who decides the punishment for treason, and what punishment for treason is prohibited. Treason against the United States is defined as being one of two things, either levying war against, or offering aid and comfort to the enemies of, the United States. To be convicted of treason, two witnesses must give testament to witnessing the same act, or the accused must confess in court. Once convicted, the constitution says it is the job of Congress to decide the punishment of the criminal; however, Congress is not allowed to prohibit the descendants of the criminal from inheriting property from them after their death. 

This clause was created to establish a concrete definition of treason to prevent the government and politicians from using treason accusations to repress and silence political beliefs that did not align with their own. In Federalist No. 10 by James Madison, one of the founding fathers, Maddison discusses the potential harms of faction, especially to a young nation. This sentiment was likely reflected in the writing of the treason clause, which prevents powerful or ruling factions from shutting down those who do not agree with them, which could lead to social unrest. 

The motivation for the treason clause’s creation, the desire to prevent dominant parties from oppressing others and politically isolating them, also reflects the french revolution. The third estate at the estates general was oppressed by the first and second estates because they were consistently outvoted, and were politically isolated because they were eventually locked out of the room as punishment for attempting to stand up for themselves and their people. This led to an extremely violent revolution, which could have influenced the framers to try to prevent similar infighting through this clause. 

The last line of this clause directly opposed Britain’s law, which prohibited the descendants of traitors from inheriting their belongings. 

The 1945 Cramer v. United States case properly illustrates the most controversial aspect of this clause. Cramer v. United States case ruled that mentally adhering to America’s enemies was not the same as offering them aid and comfort, and so that was not given, no treason was committed. On the opposing side of this case, the Government side of the court, who lost, argued that offering America’s enemies aid and comfort should be interpreted loosely to provide a more applicable version of the law which could be used during times of war. Modern scholars argue that the restraints the clause illustrates actually prevent traitors from being charged with treason on technicalities, and treason is now very difficult to prove. 

I believe that the Government’s interpretation of the treason clause is more compelling and should be the interpretation we use because it makes the law much more applicable in a modern context. The Constitution should be a living document, and our definition of treason should be different than the framers of the Constitution. 

Daya: Article 3 Section 3 The Treason Clause

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The treason clause is the only crime explicitly defined in the Constitution. It was not included to insure loyalty of citizens, but rather was included as a precautionary measure to prevent against the government’s misuse of treason prosecutions to stifle legitimate political opposition. By specifying the terms necessary for one to be convicted of treason, trials were focused on the narrowly defined terms of treason and prevented the punishment of cases without sufficient evidence.

The Treason Clause states that treason can only be prosecuted under two circumstances: levying war against the United States or providing enemies with aid and support. In order for an individual to be convicted, there must be testimony from two witnesses of the overt offense or a confession in open court. Additionally, the clause states that Congress is responsible for determining the punishment for treason while also saying that the punishment cannot extend beyond the convicted person’s life. This means that there can be no forfeiture of wealth and property.

In 1807 a case called Ex parte Bollman & Swarthout emerged. The case focused around an alleged plot by former Vice President Aaron Burr and two associates to overthrow the government in New Orleans. However, due to the strict definition of treason, they were not convicted. The Supreme Court decided that conspiring to levy war, such as drawing plans, recruiting troops, and finding maps, was different than having a group of people ready to commit the treasonous act. 

In another treason case, Cramer v the United States in 1954, the defendant, Cramer, was prosecuted for allegedly helping a Nazi soldier who had snuck into America during World War II. The court decided that in the case, there was both concrete action and intent to betray the nation, and therefore Cramer was convicted. This set the bar very high for other treason cases because it required both evident action and intent to betray the nation. In this case, the government attempted to argue that the Treason Clause should be interpreted leniently for wartime use. The court held true to the Framers’ beliefs and dismissed the idea of leniency during wartime, saying that treason cannot be the primary legal weapon to protect national security. While Cramer was convicted for treason, the court told the government that they could pursue other charges such as the  violation of the Espionage act, or the Trading with the Enemy Act without having to go through the specific Treason Clause. This ruling made it much harder to convict someone for treason in the future as there had to be evidence of support for the enemy and intention to betray the nation.

This begs the question, is the Treason Clause still relevant. Firstly, someone can still commit treason, which was the case for Adam Gadahn who was indicted for treason in 2006. Secondly, the Treason Clause represents the original values of the Framers. The strict procedure to convict someone is a reminder that the Framers did not want the government to suppress political opposition with threats of treason and wanted to safeguard individual rights. In America, the rise of the public sphere meant that different political ideas were freely circulating. In addition, today, with the widespread usage of social media, many political ideologies are discussed frequently. In both of these cases, the Framers’ original intentions prevent these discussions from having any repercussions.

The Treason Clause – Lauren Nam

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The Constitution’s framers’ intention by writing the treason clause was not to enforce strict loyalty to America onto the citizens but to prevent the abuse of treason prosecution. Recognizing the historic misuse of accusations of treason to stamp out political oppositions, in order to avoid forming a repressive government, this clause attempts to expressly define the act of treason and enforce restrictions for prosecution. 

Article III, Section 3, Clause 1 constitutes treason against the United States only as two types of actions. The first act considered treason is declaring war. The second act is assisting and abetting an enemy of the United States. The second half of this clause establishes safeguards against prosecution of treason. To be convicted of treason, this clause requires at least two witnesses to testify to have seen the same explicitly treasonous act or the defendant to confess in open court.

Although these two umbrellas of actions may seem vague, the Court has interpreted this clause very narrowly, in line with the Framers’ original intentions, and has only indicted one person of treason since 1954. By writing this clause, the Framers limited Congress’ ability to define treason and instated difficult parameters to proving the crime.

The Court’s interpretation of the definitions of treason over the years have remained specific, with the Court, in many cases, reaffirming the distinction between conspiring to and actually levying war. In the case of Ex parte Bollman & Swarthout (1807), which pertained to the covert plot of Aaron Burr to overthrow the New Orleans government and tried two of his associates, both defendants were dismissed of their charges.

The necessity of concrete action and not just sentiment or expression against the United States in order to convict a person of treason, is a protection of the first Amendment and the rights of citizens. Under the treason clause, the Court found that the actions of Bollman and Swarthout were insufficiently carried out to be considered treasonous acts, establishing that intent alone cannot incriminate someone. However, as illustrated in subsequent cases, intent is pivotal in meeting the strict parameters that the Treason Clause requires to meet.

Article III, Section 3, Clause 2 grants Congress the power to decide the punishment of treason, however, protects the right of the family members to inherit property of those convicted of treason after such person has died. The clause specifically mentions, “Corruption of Blood”, a reference to English Common Law. In order to diverge from English Common law, in which Corruption of Blood was the automatic punishment of attainder for treason, the Framers prevent the consequences of treason beyond the convict’s life. 

While the Framers were trying to prevent the abuse of the treason clause, the French were on the brink of revolution. The French Revolution, specifically the reign of terror, unfolded in events that the Constitution was actively fighting against. The paranoia and fear of counter revolution which characterized the period led to mass executions and public unrest. The bloody events of the reign of terror is a testament to the necessity of the treason clause.

Pema – The Treason Clause

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After the failure of the Articles of Confederation, soon after its ratification in 1777, the Founding Fathers wanted a Constitution that was strong enough to run the country while being conscious of potentially giving the government too much power and not protecting the people’s rights enough. The Articles of Confederation didn’t centralize the power under the federal government enough and gave the states too much individual power which led to its replacement in 1789. The Treason Clause in section 3 of Article 3 is one important article that helped to restrain the power of the government in the Constitution. The Founding Fathers were concerned about the possibility of treason being weaponized by a future president to silence the people and any political opposition. The Founding Fathers incorporated the Treason Clause to prevent the government from becoming too powerful and becoming like the British monarchy. 

The Constitution defines treason as an act of an American betraying the allegiance that they owe to their country. The Treason Clause limits treason to two different kinds: treason by waging war against the U.S. and treason by helping the enemies of the U.S. by providing them “aid and comfort”. In order to sentence someone for treason, there must either be two witnesses that can testify to the same treasonous action or the accused person has to confess in open court. If someone is convicted of treason, Congress has jurisdiction and is able to make the punishment. However, the punishment has to be one that only the convicted person pays. Congress cannot extend the punishment to the convicted person’s family or the next generation of the family.

Over the years, many different cases have been made from different interpretations of the Treason Clause because what qualifies as treason was never fully specified. One example of this was in the case of Ex parte Bollman & Swarthout where levying war was clarified. Bollman and Swarthout were two of Aaron Burr’s associates who came forward accusing Aaron Burr of plotting treason to overthrow the government in New Orleans. Ultimately, the Supreme Court decided that Aaron Burr was not guilty of treason and the distinction was made between conspiring to commit treason and taking action to commit treason. Conspiring to commit treason wouldn’t be considered treason but when steps/actions were taken, that would be considered treason.

The Treason Clause connects to an overarching theme of Enlightenment because some Enlightenment ideals were the idea of people having God-given rights and moving away from a monarchy and that’s exactly what the Treason Clause helps to accomplish. The Treason Clause protects the rights of people by offering safeguards to make it hard to be convicted of treason. The Treason Clause also limits the power of the government which helps balance the powers out evenly to prevent tyranny.

Teddy – The Impeachment Clause

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Article II, Section 4 of the United States Constitution is commonly known as the Impeachment Clause. This section states that certain people in the United States government (“the President, Vice President, and all civil Officers”) can be removed from office if they are found guilty of certain types of misconduct (“Treason, Bribery, or other high Crimes and Misdemeanors”).

The idea of impeachment came from the English system where as a way to check the King’s power, Parliament could impeach ministers and those favored by the King. Contrary to the English practice at the time where any private or public person except for members of the royal family could be impeached, the Framers of the Constitution sought to limit who could be impeached and the offenses eligible for impeachment.

Per Article I, Section 1, only Congress has impeachment powers. The House of Representatives first must vote to impeach, or formally charge, the individual and then must write the articles which detail the charges before submitting them to the Senate. After convening a trial, the Senate votes on whether to convict and remove the official from office. Influenced by Enlightenment philosophes like Montesquieu, the Framers included the Impeachment Clause to allow Congress to check the Executive and Judicial branches as part of the system of checks and balances they created among the three branches of government. In order to discourage Congress from abusing its power, however, the impeachment process requires bipartisan cooperation to achieve the two-thirds vote required for conviction and removal. As a result, Congress has exercised its impeachment power infrequently, reserving it for cases where an individual’s misconduct is considered too dangerous to remain unchecked.

While judicial precedent is often used to interpret Constitutional provisions, the Judicial Branch has no authority over or involvement in the impeachment process; instead, Congress looks to historical precedent as a guide. As “civil Officers” is not defined in the Constitution, there was once a question as to whether or not members of Congress were included and subject to impeachment, but the common interpretation is that they are not Officers of the United States because Officers are appointed by the President. Instead, other provisions in the Constitution provide ways to remove members of Congress from office.

While Treason and Bribery are well defined concepts, there has been much debate around what constitutes a high Crime or Misdemeanor. In an early draft of the clause, “maladministration” was an impeachable offense, but out of concern that Congress would impeach on any grounds, the Framers replaced the term with “high Crimes and Misdemeanors.” As with other provisions of the Constitution, the Framers were purposely ambiguous in their wording in order to create a lasting system of government that is flexible enough to address unexpected circumstances and allow the removal of an official whose behavior is harmful to the public. It is commonly understood that this clause exists to allow a process for removing government officials not for incompetence, but for abuses of power.

Article II, Section 4 (Impeachment Clause)-Mira Gulati

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The impeachment clause in Article II, Section 4 of the Constitution is one of the most important powers given to Congress. It embodies the key principles of separation of powers and checks and balances embedded in the document. These principles were created by Baron Montesquieu, an Enlightenment thinker, who said that separating the branches and holding each other accountable was essential to preventing abuse of power that denied people their liberty. 

The objective of the impeachment clause was to provide Congress with another safeguard for this abuse of power, stating that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  An earlier draft of the impeachment clause held that officials could be impeached for “Treason, Bribery, or maladministration” James Madison and the Philadelphia delegates objected to the wording and said that its obscurity would result in unreasonable impeachments. As a result, the word ‘maladministration’ was removed in favor of ‘other high crimes and Misdemeanors’ With these new revisions, congress instituted a clause that allowed the House of Representatives to bring charges against any official that has committed a crime or worked against the will of the American people. The exclusion of ‘maladministration’ makes it clear that unfitness for the post is not a valid reason for impeachment. However, the full grounds for impeachment are still not clarified with the new phrase and the meaning of ‘high crimes and misdemeanors’ is still debated today. 

The different interpretations came into play during former President Bill Clinton’s impeachment in 1999. The impeachment arrived after it was revealed that Clinton had lied under oath about his affair with White House intern Monica Lewinsky. The Senate, however, did not find him guilty of the counts of perjury and obstruction of justice Many Democrats advocated that while Clinton’s behavior was morally punishable, it did not affect the public so it did not constitute impeachment. That it was not a ‘high crime’ On the other side of the aisle, Republicans argued that his actions betrayed the trust of the nation and were therefore liable for conviction. 

The Clinton case raised a lot of questions surrounding the conduct of government officials. Many people wondered whether he set a precedent that only wrongdoing related to the President’s decisions involving the nation would constitute an impeachment. Whether only crimes prosecutable by court apply to the clause or misconduct and dishonor did too. If the original clause is to be maintained, only time and more impeachments will answer it. 

An alternate solution, however, lies in an amendment that would revise the last phrase of the Constitution so that the ‘high’ in ‘high crimes’ is removed. This would help clarify whether any crime that an official commits is applicable for impeachment. It does not make sense to have a range of crimes that an official is allowed to commit as they need to be held to the same standards as everyone else in America. The system of checks and balances that are meant to retain the citizen’s liberty holds no power if they do not.

Ava – Treason Clause

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The historical forces giving rise to this excerpt of text likely are the framers of the Constitution’s consideration of different political ideas. Looking back, especially on the Revolutionary War, the Americans remembered what tyranny could be like, and they wanted to be sure that the accusation of treason wasn’t simply something used to silence people with plans that could help America develop into a more experienced and peaceful nation.

The commonly understood meaning of Article III, section III beyond the obvious ‘don’t commit treason’ is that the United States discourages treason charges being thrown around, so an accuser needs two witnesses with testimonials or a full confession. Also, Congress is essentially in charge of deciding punishments for treason. However, the punishment should not extend beyond the accused to their family, or last longer than the accused lives.

This particular provision has been interpreted in separate ways involving, firstly, the modern impact of treason. There have been barely any people accused of treason for a long time because of the specifications in the Constitution and the qualifications of the legitimate charge of treason. However, sometimes people are convicted of similar crimes, such as espionage, and still handled like a treason case, even going as far as to call the accused a traitor.

This is important especially considering the way the treason clause was written to add some protection, and so going away from the formal accusation of treason removes any of the padding that was originally included in the Constitution. A supreme court case at the center of this small dispute is Rosenberg v. United States, which involves Julius and Ethel Rosenberg being accused of espionage and not treason. However, even though the charge was espionage, the judge and prosecutors essentially combined the charges, informally suggesting that the Rosenbergs had committed treason.

The Rosenbergs’ case became known when they began to insist that this was a violation of the Constitution because they were essentially facing the consequences of treason without any of the specifications of the Constitution. This is illustrative of the debate of the legitimacy of treason as a charge and surrounding rules because it brings up why the framers of the Constitution may have included every word they chose to write about the legal punishments for treason. This provision connects to other concepts discussed this year mainly in the Enlightenment with philosophers.

Mainly, the center of this section is John Locke in his ideas of a person’s natural rights to life, liberty, and property. This section gets into exactly what the punishment should be, and who should decide, ensuring that no one’s right to liberty or property is denied beyond a reasonable point, so that the punishment is fair and fit to the crime itself. I find the treason clause to still be very relevant and its mention of heredity and forfeiture is very persuasive and important.