John A. Stormer, a prominent anti-communist crusader of the Goldwater era, published a screed titled “None Dare Call It Treason” that was wildly popular in rightwing circles (details here). The book’s title and contents implied America was losing the Cold War because its liberal elites were traitors.
The fact every postwar Democratic president, from Truman onward, was an ardent Cold Warrior — and America actually won the Cold War when the Soviet Union collapsed 25 years later — took the wind out of those sails; but the myth lives on. Conservatives have always been true believers of things that simply aren’t true.
What, exactly, is treason? For legal purposes, i.e. to prosecute someone on that charge, it’s defined by the Constitution as someone who owes allegiance to the United States (e.g., a U.S. citizen) waging war against it or giving aid and comfort to its enemies during wartime, which differs from domestic subversion or sedition.
Glenn Kirschner, a retired Army and federal prosecutor with a storied career (details here), argued on MSNBC Sunday, June 19, 2022, that Trump’s actions on Jan. 6, 2021, satisfy all five “data points” comprising the crime of treason (read story here).
Kirschner isn’t some pundit spewing off-the-wall talking points. He was a high-ranking Justice Department official who prosecuted high-profile espionage cases. As such, he’s better positioned than almost anyone else to know what it would take to convict someone of treason under U.S. laws.
He argues Trump “levied war against the United States.” What does he mean?
Specifically, that (1) Trump recruited the Proud Boys and others to “stand by” and wait for orders; (2) set the date for the Capitol attack by urging people to “come to DC [on] January 6th” and promising it “will be wild;” (3) gave the order to “go to the Capitol” and “fight like hell” to stop the certification; (4) did this with corrupt intent; and (5) refused to reinforce the Capitol police or call off the mob, despite the urging of those around him.
Kirschner contends if that’s “not levying war against the United States … then what is?”
Historically, only a handful of U.S. citizens have ever been prosecuted for treason, mostly under the “aid and comfort” clause, for broadcsting enemy propagandists during World War 2 (e.g., “Tokyo Rose” and “Axis Sally”). Confederates were protected from prosecution by a blanket amnesty issued immediately after the Civil War.
More recently, the terms “treason” and “traitors” have fallen into disrepute because of their widespread as a political epithet. Treason is a real crime, though. But is an insurrection of the Jan. 6 sort “waging war against the United States,” or a batch of individuals committing lesser crimes?
A Harvard law professor who weighed that issue in a New Yorker article (here) shortly after the Capitol riot suggested armed rioters who attacked the government with the intention of overthrowing could possibly be prosecuted for treason under the originalist interpretation of Constitutional language favored by conservatives (i.e., based on what the Framers considered treasonous in their own time).
Interestingly, arguments over whether Trump engaged in treason arose even before he became president (see story here), in connection with his encouraging Russia to hack Hillary Clinton’s emails; but that doesn’t fly, because the U.S. wasn’t at war with Russia then (and isn’t now).
At the very least, Trump attracts lightning, but at this point he appears far more likely to be prosecuted for financial fraud and/or election crimes, than “waging war against the United States,” if he’s ever prosecuted at all.
Related stories: Rick Wilson, a GOP campaign consultant, described Trump as someone “who would throw a school bus full of toddlers into a volcano to stay in office” and called out Republican senators who supported his efforts to overthrow the election here; while Fox host Howard Kurtz pointed out here that GOP leaders aren’t really defending Trump against the Jan. 6 committee’s accusations.