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Wednesday, December 19, 2018

Can Trump be tried for treason?

Can Trump -- or Michael Flynn -- be tried for treason?

A number of sources insist that Donald Trump cannot be tried for treason because we are not in a declared war with Russia. I haven't been able to find the court ruling which made this adjudication, but such rulings should be reconsidered as times change. Remember, Plessy vs. Ferguson established "separate but equal," which was once considered inviolable.

Obviously, the "declared war" standard is obsolete. We don't declare war anymore. If this country is ever attacked with nuclear weapons, the missiles will almost certainly not be sent by a declared enemy.

Consider the notion of an American General who substantially aided the Axis powers just a few days before December 8, 1941, when war was formally declared. Can you honestly argue that such an act would not have been treasonous?

Before you answer, you should know that my question is not hypothetical: On December 4, 1941, the Chicago Tribune (a pro-fascist newspaper) published the details of America's contingency war plans against Germany. At the time, these plans were our most closely-guarded secret. Publication was intended to strengthen isolationism and to portray FDR as a warmonger, even though a contingency plan was only prudent. 

Who was the leaker? The chief suspect was General Albert Wedemeyer, an anti-Semite and America Firster who worked in the War Plans Division. He despised Roosevelt. Although he always denied the charge, there was hard evidence against him -- enough to convince J. Edgar Hoover of his guilt. Wedemeyer probably would have been indicted if not for the Pearl Harbor attack; as the nation mobilized for war, such a scandal would have injured morale.

Years later, Senator Burton K. Wheeler -- an anti-FDR Democrat -- said that he leaked the document after acquiring it from "an Army Air Corps captain." Although some believe that he referred to General "Hap" Arnold, strong evidence points to Wedemeyer: A copy of the war plan was found in his safe, with sections underlined -- the same sections which appeared in the newspaper.

Interestingly, General Wedemeyer later became a right-wing conspiracy-monger -- the Michael Flynn of his day, if you will. (As some of you may know, Wedemeyer's name crops up in JFK assassination lore.)

Let us posit that investigators had found inarguable, conclusive evidence against Wedemeyer. Could he have been tried for treason? Let's rephrase the question: Should he have been tried for treason?

I believe so. The Constitution defines treason not just as giving aid to a declared enemy but also as personally making war against the United States. In my view, aiding Hitler by leaking the plan constituted an act of war against the United States; whether Wedemeyer colluded with Germany is immaterial. I certainly don't think that Wedemeyer's guilt was lessened by the fact that his betrayal occurred four days before the actual declaration of war.

The big question: Would a court have agreed with my view?

Yes and no. A court in 1942 or 1943 might well have seen things my way. In other years, a court probably would have ruled differently. The world situation inevitably affects the thinking of jurists, and differing times produce differing rulings. In an emergency situation -- when the country faces an existential crisis -- a court would probably be more likely to define treason in a way that matches my personal definition.

Of course, as a practical matter, such a case would inevitably come before the Supreme Court, and...well...Kavanaugh. Ew.

However...

There are other precedents. Did you know that "treason" can also be a state crime, and that it can be tried on the state level?

The most famous example would be that of John Brown, convicted in November of 1859 for committing treason against the State of Virginia. This, despite the fact that he did not live in that state, and his ill-fated raid did not lead to any deaths.

Another example: Governor Thomas Dorr of Rhode Island, who was angered by a state law which allowed only white males of property to vote. In 1842, Dorr tried to establish a counter-government, in a doomed effort called "Dorr's Rebellion." He and five conspirators were convicted of treason against Rhode Island, which eventually pardoned Dorr and dropped the property requirement. (The federal government was surprisingly neutral in all of this.)

Which brings us to today. Technically, the state of Florida could bring treason charges against Donald Trump; the minimum penalty is 5.5 years, while the maximum is 30 years. I can find nothing to indicate whether New York still has a treason law on the books. In 1781, the New York legislature forbade anyone from printing or declaring in public that the King of Great Britain ought to have "any Authority, or Dominion, in or over this State or the Inhabitants thereof." As long as Donnie avoids doing that, he may be in the clear.

That is: He would be in the clear in that particular state.

Quite a few other states still have treason laws. The John Brown precedent proves that one need not be a resident of the state to be executed as a traitor. Arguably, Trump could be tried in (say) California or Vermont, where those pacifistic, tofu-gobbling blue-state SJWs still have a "Death to traitors!" policy.

Michael Flynn could be charged as a traitor in Virginia. Why not?

As Marcy notes, Emett Sullivan's inquiries about Flynn's potential treason were hardly so outrageous as some believe. The prosecution responded with these words:
And that affords us an opportunity to clarify something on our end which is, with respect to treason, I said I wanted to make sure I had the statute in front of me. The government has no reason to believe that the defendant committed treason; not just at the time, but having proffered with the defendant and spoken with him through 19 interviews, no concerns with respect to the issue of treason.
Marcy:
Now, I will be honest with you: I was screaming at Sullivan when I read this being tweeted out in real time, in part because I spend so much time arguing that Trump and his flunkies won’t be charged with treason because we’re not at war.
Were we at war when John Brown was hanged for treason against the state of Virginia? No, we were not.

Marcy notes that the judge has had access to materials not available to members of the public.
It should gravely worry the Trump people that Sullivan’s comments about whether Flynn’s behavior was treasonous came from someone who just read about what the Mueller investigation has discovered.
All of this seems to be consistent with Mueller reviewing Flynn’s actions, reviewing statute, finding that Flynn’s behavior did rise to the standards described in 18 USC 951 (with which Van Grack said he could have been charged), but did not rise to treason (as it clearly did not).
I'm not sure that things are so clear. At any rate, what about the cognate Virginia statute?

Marcy wants to dampen all talk about treason. I do not. I think this issue should become a wildfire -- and that courts should argue the matter as the fire rages, precisely because the fire rages. Why? Because the threat to democracy is indeed existential, and it's time for us to act accordingly.

We should overturn previous rulings on what constitutes treason. Again: In Plessy vs. Ferguson, the Supreme Court established a precedent; nevertheless, times changed and "separate but equal" is no longer the law of the land.

As for the state court option: The idea may seem fanciful, and I admit that I wrote parts of this post while smiling whimsically. But perhaps that sense of whimsy was misplaced. Perhaps desperate times require desperate measures.
Comments:
I don't read Marcy any more. Not until she gives usa an adequate explanation for how and why she has become an FBI informant.
 
Micahel, I think I may have an idea of what happened -- kinda, sorta -- and I believe she did the right thing.

I myself would be an FBI informant if I knew of a serious and immediate danger to life and property. C'mon, Michael -- if you somehow found out that a porta-nuke was about to take out the downtown of a large city, wouldn't YOU tell someone?
 
Suppose in 2021 President Sherrod Brown takes office and immediately begins proposing Medicare for all and stricter EPA regulations. In response, a district attorney in Mississippi indicts him for treason. Having established the principle that a sitting president is subject to the whims of any prosecutor looking for a headline, he spends the next four years combating every local DA who then decides to make his life miserable. That is why I think it is a bad idea for Trump to be subject to local prosecution while he is president.
 
A fair point, j. But I think people will understand the difference between policy disagreements and a de facto allegiance to a foreign power. Beyond that, I'm bothered by the fact that Democrats continually think in terms of the future -- "What if this tactic is turned against US?" -- while Republicans always think in terms of NOW.
 
I've narrowed it down to two possibilities: Flynn was taking pre-orders all over the world for shares and condos at the Trump Area 51 Golf Resort (it's iffy whether ET's are sufficiently inimical to qualify for treasonous behavior), or Flynn was Trump's von Ribbentrop, preparing the stage for non-aggression pacts after the inauguration.
 
Michael, Not sure what’s up with Marcy. She does have opinions that differ from mine, but then she seems to end up pretty much parallel in view.

That FBI informant issue that you bring up was, as I understand it, a reaction to a very personal threat against her, in her home.

Should such a thing happen to me, I’d probably call the FBI and hope for the best.

In Marcy’s case, I don’t think it wise to second guess, she’s a much more well known person. Also shouldn’t rule out a Roger Stone type of operation designed to frighten her and make her look bad.

Tom
 
John Brown was convicted of treason against Virginia; West Virginia did not exist in 1859.

A Scandinavian
 
My Scandinavian friend, you are absolutely right. In fact, I distinctly recall being corrected on that very point during my first visit to Harper's Ferry, many years ago.

Damn. I have no excuse for that error.

I've corrected my text. Thank you for pointing out the mistake.
 
Have a Happy Xmas, Joseph. Cheers mate.
 
Good write-up. I certainly appreciate this site.

Keep writing!
 
A story that is bound to be of some interest in these parts: following the grounding of all flights to and from London's Gatwick airport for more than a day, ostensibly because of drones being flown by an unknown party over the runway, and following the arrest of two people who have now been released uncharged and declared no longer to be suspects, the police are claiming that perhaps there weren't any drones in the first place. Reportedly there were "more than 67" sightings.

Love it!

Someone is bound to think of an acronym for a flying object that is observed by numerous people but which has yet to identified!

From the Blessed Virgin Mary, to U**s, to ... drones!

There are absolutely BOUND to be more drone stories of this type.

For those who don't already know: the area near Gatwick is full of whackball cults of various descriptions, including Scientologists and Steinerites.
 
Did Brexit call something up?

Interesting times indeed.
 
Joseph and all,

Merry, Happy.

Looking forward to better days.

Tom
 
I needed to thank you for this fantastic read!!
I definitely enjoyed every bit of it. I've got you book marked to look at new things you post…
 
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