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The Charge of Treason and the Danger to Democracy


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Historian Henry Adams observed a century ago that politics “has always been the systematic organization of hatreds.” Nowadays, politics seems hellbent on multiplying hatred. And few things spur hatred more effectively than tarring all political opponents as traitors. 

[Note: this article was submitted one day before protestors stormed the capitol building.]

Having seen how the charge of treason had been horrendously abused in British history, the Founding Fathers crafted a narrow definition of treason in the Constitution: “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.” 

Unfortunately, treason became a much more common charge in America in recent decades. On Dec. 6, 2001, almost three months after the 9/11 attacks, Attorney General John Ashcroft informed the Senate Judiciary Committee, “To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and … give ammunition to America’s enemies.” Regardless of how many civil liberties were actually destroyed, critics were traitors. 

Tacit treason accusations permeated George W. Bush’s reelection campaign. At the 2004 Republican National Convention, keynote speaker Democratic Senator Zell Miller implied that political opposition was treason: “Now, at the same time young Americans are dying in the sands of Iraq and the mountains of Afghanistan, our nation is being torn apart and made weaker because of the Democrats’ manic obsession to bring down our commander in chief.” Former New York City Police Commissioner Bernie Kerik, stumping for Bush, told audiences: “Political criticism is our enemy’s best friend.” Six weeks before the 2004 election, the Washington Post noted, “President Bush and leading Republicans are increasingly charging that Democratic presidential nominee John F. Kerry and others in his party are giving comfort to terrorists and undermining the war in Iraq—a line of attack that tests the conventional bounds of political rhetoric.” Pervasive vilification helped Bush win a second term. 

Treason became the coin of the realm for denigrating political opposition after Trump defeated Hillary Clinton in November 2016. Democratic politicians, activists, and their media allies responded to Hillary Clinton’s surprise defeat by smearing Donald Trump for colluding with Russia. Leaks to the media from the FBI, CIA, and other federal agencies spurred raging controversies which contributed to Trump firing FBI chief James Comey, which was quickly followed by the appointment of Robert Mueller as Special Counsel to investigate Trump. Mueller instantly became sacrosanct. 

A piece I wrote for The Hill on Mueller’s lawless record as FBI chief spurred 1,500 comments, including denunciations of me as a treason weasel, bearded grifter, Alt-moron, lackey, lickspittle, and librarian (some folks can’t spell “libertarian”). In April 2019, Mueller finally admitted that there was no substantive evidence of collusion but that did not stop the endless “RussiaGate” refrain and treason accusations from Trump critics. Most of Trump’s first term was permeated by charges of treason against him. 

The November 2020 election was a cliffhanger in key states that determined the election’s outcome at the Electoral College. Many states relied on largely unverified mail-in ballots and enacted other procedural changes that curtailed prior measures to prevent voting fraud. Those “reforms” have turbo-charged controversies over the election result. 

But on November 7, four days after the election, the media irrevocably certified Biden as the winner. As law professor Jonathan Turley noted, after November 7, “All court challenges [to election results] then became unethical for lawyers and all congressional challenges became sedition for members.” Pennsylvania Attorney General Josh Shapiro last month denounced one challenge to the election results as a “seditious abuse of the judicial process” that was guilty of “misleading the public about a free and fair election and tearing at our Constitution.” Sen. Chris Murphy (D-CT) wailed, “The most serious attempt to overthrow our democracy in the history of our country is underway.” Twitter’s left-wing tilt has helped spur hashtags such as #GOPSeditiousTraitors and #TreasonAgainstAmerica. One leftist activist got 65,000 “likes” declaring that “Donald Trump should replace Benedict Arnold in history as America’s most reviled traitor.” 

Some Republicans have been deranged in their howlings about the election. Republican lawyer Lin Wood declared that Vice President Pence would be guilty of treason for certifying the election results and that he “will face execution by firing squad.” On Monday, the Trump-loving duo Diamond & Silk tweeted: “After listening to the leaked call put out by the Washington Post we are convinced that Georgia’s Secretary of State and his lawyer needs to be arrested for Treason!” After a court rejected a lawsuit he was pushing to challenge the election results, Texas congressman Louie Gohmert declared that “basically, in effect, the ruling would be that you gotta go the streets and be as violent as Antifa and BLM.” Gohmert recanted the following day, tweeting, “I have not encouraged and unequivocally do not advocate for violence” and invoking Martin Luther King Jr. Too late, dude. 

Many Trump opponents are invoking 1861, denouncing any Republican challenges to the election as the same type of treason purportedly committed by states that exited the union. But that political morality storyline is not as clear or simple as it is now portrayed. In early 1861, the aftershocks of the 1860 election were raising the specter of America splintering into many separate nations. As historian Shelby Foote noted, “New Jersey was talking secession; so was California, which along with Oregon, was considering the establishment of a new Pacific nation; so, even was New York City, which beside being southern in sentiment would have much to gain from independence.” President Abraham Lincoln maneuvered Confederacy President Jefferson Davis into stupidly firing the first shots at Fort Sumter, an attack that galvanized Northern support for Lincoln almost as effectively as Pearl Harbor boosted support for President Franklin Roosevelt. 

Lincoln made clear in his comments in 1861 and most of 1862 that the war was being fought to prevent secession, not to abolish slavery (which was a great evil that needed to be ended). In September 1862, after more than 100,000 battlefield casualties, Lincoln changed the primary justification for the war when he issued the Emancipation Proclamation. 

The Civil War illustrates the catastrophic damage that can result from broad-brush definitions of treason. Northern politicians quickly persuaded their supporters that secession was treason – and a capital offense. In 1864, Gen. William Sherman telegrammed the War Department in Washington: “There is a class of people—men, women, and children—who must be killed or banished before you can hope for peace and order.” Union armies in Virginia, Georgia, and elsewhere late in the war intentionally devastated civilian populations who were considered collectively guilty of secession and treason.

But crimes which supposedly became self-evident after blood was shed were far more disputable prior to the war. Forty-seven years before Fort Sumter, politicians from New England states had gathered in Hartford, Connecticut and considered seceding from the United States – which they viewed as unfairly dominated by Southerners (especially Virginians). But at some point between 1814 and 1861, secession was debased from a viable option for oppressed states into a political heresy. But if the Constitution had explicitly called for death sentences for residents of any state that sought to exit the union, few states would have likely joined after 1787. 

Since treason is a capital offense, pervasive allegations of treason are the equivalent of demanding a political death sentence (if not actual execution) of one’s opponents. Unfortunately, the more power politicians have captured, the more unhinged political rhetoric has become. American politics has become toxic in part because presidents nowadays are elective dictators. Rather than a process of selecting a chief executive who will uphold the Constitution and enforce the laws, elections nowadays confer a license to run amok over the lives and property of practically anyone who falls under federal sway. Government has amassed so much power that the vast majority of Americans no longer trust Washington.

President-elect Joe Biden is fond of telling Americans that “Our darkest days in the battle against Covid are ahead of us.” Similarly, the harshest political rhetoric may also be ahead of us, especially with continuing disputes over vote totals in several states. It is inevitable that the Biden administration will start out reaping the backlash of the political attacks upon the Trump administration.

Today’s “mutual assured destruction” level of treason accusations could eventually sever the political ties that have held this nation together since 1865. The surest recipe for curtailing political vitriol is to reduce political power so elections will no longer be demolition derbies that doom losing sides. One of the best standards for reform was offered by Thomas Jefferson in 1799: “In questions of power, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution.” And if presidents and members of Congress choose to openly scorn their oaths of office and constitutional constraints on their power – well, many Americans would consider that to be treason.

Reprinted with permission from American Institute for Economic Research.
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