You Are Dead Wrong, Professor Turley

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Turley published an opinion editorial in the February 6, 2018 edition of USA Today which stated that “Treason talk is reckless, whether it is coming from Trump or Democrats.” From a historical perspective, Turley wrote an informative essay and concluded by saying:

 “Democrats like Kaine are using treason to mean an actual criminal charge while Trump is using it more in a rhetorical sense, but both uses are reckless.

From the Sedition period to the Joe McCarthy period to civil rights marchers and Vietnam protects, our history is replete with politicians who showed the same “why not?” attitude toward treason. The answer should not be simply that it does not fit with our definition; it does not fit with our values.”

Professor Turley could not be more wrong. Treason by Donald Trump is still an open question, and our “values,” at least in the minds of Evangelical leaders, have been reduced to a “mulligan.”

Article III, Section 3 of the U.S. Constitution reads:

Section 3. 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.

Mr. Justice Douglas gave a thorough explanation of what does, and what does not constitute treason in Tomoya Kawakita v. United States (1952), 343 U.S. 717 (72 S. Ct. 950, 96 L. Ed. 1249). Justice Douglas wrote:

The act may be unnecessary to a successful completion of the enemy’s project; it may be an abortive attempt; it may in the sum total of the enemy’s effort be a casual and unimportant step. But if it gives aid and comfort to the enemy at the immediate moment of its performance, it qualifies as an overt act within the constitutional standard of treason. As Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 126, 2 L.Ed. 554, ‘If war be actually levied, * * * all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.’ These two overt acts, if designed to speed up Japan’s war production, plainly gave aid and comfort to the enemy in the constitutional sense.

Never in their wildest dreams could the framers have imagined telephones, let alone the monstrosity we refer to as the Internet. But they did have the foresight to realize that changing times required the Constitution to be a living instrument, one that can adapt to whatever a citizen, at any time certain, is due under the Fifth Amendment, and as applicable to the states through the Fourteenth Amendment. Thus, we must look to cases decided by the Supreme Court, a panel guided by stare decisis, to determine how any law or constitutional provision is applied. The proper starting point is Annotation 24 to Article III, Section 3 of the Constitution.

As to levying war, Annotation 24 states:

Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman, 1291 which involved two of Burr’s confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying war to the actual waging of war. ”However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that . . . it has been determined that the actual enlistment of men to serve against the government does not amount to levying of war.” Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. ”On the contrary, if it be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.

The framers never could have imagined that an army of invisible foot soldiers would land on the shores of the United States and attempt to overthrow our government via the Internet. This would be a “ levying of war.”That is exactly what happened when hackers under orders from Vladimir Putin in St. Petersburg, Russia sent millions of bots to targeted homes and businesses in the United States for the purpose of upsetting, or rigging, a democratic election. It is clear under the settled law that any American citizen who assisted Putin in this endeavor, upon sworn testimony of two individuals, is a traitor; small wonder that every individual in the Trump campaign denied every contact with Russians, when in fact, there were many.  It should also be noted that Donald Trump is the candidate who brought up the issue of election rigging―as if he had some inside information on the subject.  Moreover, the fact that Trump refused to issue sanctions authorized by a near unanimous vote of Congress falls within the purview of constitutional law, and as comfort and aid to the enemy is clearly an overt act of treason. Consequently, Professor Turley’s claim that Tim Kaine’s treason charge was “reckless” is misguided.

In deference to the learned professor, it is better to be dead wrong, than wrong dead. It could not be clearer that Donald Trump’s fondest wish is to join history’s long list of despots. This he demonstrated when he stated at a rally during the last presidential election campaign that he would “order his justice department to prosecute Hillary Clinton.” He demands and receives loyalty from a legion of bootlickers. Such conduct is the substance of banana republics and autocracies like the one presided over by Kim Jong-Un of North Korea. We have witnessed the North Korean dictator murder members of his own family at the smallest hint of dissent, and imprison countrymen for six months at hard labor for not “crying hard enough” at his father’s funeral. No man is above the law, including the President of the United States. Donald Trump is a proper subject for an indictment alleging treason against the United States. With due consideration given the number of Trump enablers within the Republican Party, the ongoing investigation by Special Counsel Robert Mueller III may be our only security against those who would turn  our constitutional republic into a dictatorship.

Truman Goodspeed, February 2018

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