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Trump, Treason and Misprision of Treason: A Primer

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The American Constitution contains a single reference to “treason,” which Article III says “shall consist only in levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.”

Treason was a big concern of the Founders, which is why it is one of only three crimes defined in the Constitution (the others being piracy and counterfeiting). Just seven years prior to the Constitution’s writing, Benedict Arnold had committed treason against the fledgling United States by seriously compromising West Point in favor of the British; Arnold later joined the British Army and waged war against America. The stinging memory of Arnold, who they thought was a trusted general, was fresh in the Founders’ minds when they wrote Article III.

Treason was further defined in the United States Code, which spelled out its penalties: anyone convicted of treason “shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

The Code also added a less severe version of treason: “misprision of treason [from an Old French word meaning “to misunderstand”]: “Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.” The difference, then, between “treason” and “misprision of treason” is roughly the difference between an act of commission and an act of omission.

In the centuries since the Constitution’s ratification, in 1789, only 13 Americans have been charged with and convicted of treason. The reason the number is so low is because treason is relatively rare, and hard to prove. Axis Sally’s case was simple enough: her radio broadcasts during World War II certainly gave “aid and comfort” to Nazi Germany. But Tomoya Kawakita’s case was complicated: the last person ever to be convicted of treason (in 1952), Kawakita lost his appeal to the U.S. Supreme Court by a close 4-3 decision, and, in October, 1963—mere weeks before he was assassinated—President Kennedy commuted his sentence.

There’s plenty of talk today about Donald Trump and/or his associates having committed treason in their relationships with Russia. It’s looking more and more like the deal that went down was:

  1. Russia got to interfere in the election on Trump’s behalf, with the collusion or at least the approval and knowledge of Trump and/or his associates.
  2. Meanwhile, what Russia got from the deal was the Trump administration’s promise to end sanctions imposed by the U.S. after Putin’s invasion of Ukraine.

The evidence for this is mounting. We already knew that sanctions are hurting Russia badly. Then, there was the report late last week that Trump “was gearing up to lift sanctions on Russia.” There also was the additional news that Trump sought to return those seized Russian diplomatic compounds (in Maryland and New York) back to Russia.

Trump’s lawyers will argue that he committed no treason, because there’s no evidence of direct communication between him and Russian officials, and no evidence of a quid pro quo; Trump simply wanted better relations with Russia. But there’s certainly evidence of misprision of treason: “having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same…”. Did Donald Trump know that his associates (Stone, Flynn, Manafort, Jared, etc.) were doing just that? Was it at his behest, or did they go rogue? Did he disclose such knowledge, even if it was just a suspicion, to any responsible legal or political authority? No. Instead, Donald Trump did his best to cover up, deny, obfuscate, hide, screen, conceal and excuse what was done; indeed, he still is doing so. It seems likely that he also attempted to obstruct justice, and Mueller may well charge him with that. But it would be even more sensational if Mueller finds the president committed misprision of treason, and Trump is sentenced to seven years in jail, probably in one of the “white collar” prisons: the Federal Correctional Institution in Butner, in North Carolina, where Bernie Madoff is incarcerated, would be ironic. Two busted billionaires!

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