Trump Loves Accusing Critics of Treason. U.S. Law Makes That Charge Hard To Prove—for Good Reason.
· Reason
Last November, six members of Congress, all Democrats, posted a video that reminded U.S. military personnel of their duty to "refuse illegal orders." That well-established principle, which is reflected in the Defense Department's Law of War Manual, is legally uncontroversial. And as a federal judge later noted, the video was "unquestionably protected" by the First Amendment. President Donald Trump nevertheless insisted that the legislators had committed a grave crime.
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"It's called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL," Trump wrote on Truth Social. "Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL." He added that "their words cannot be allowed to stand" because "we won't have a Country anymore!!!" He later reiterated that the legislators who produced the video had engaged in "SEDITIOUS BEHAVIOR," which he claimed is "punishable by DEATH!"
That apoplectic reaction, which led to an attempted federal indictment, was part of a familiar pattern. Again and again during the last decade, Trump has accused people who irk him of treason, sedition, or both. But those words do not mean what he thinks they do, and for good reason: Through centuries of bitter experience, Americans have learned the perils of letting the government define treason and sedition broadly enough to criminalize dissent. Although Trump clearly has not absorbed those lessons, his habitual invocation of these terms is a useful reminder of why U.S. law makes it so difficult to prove such charges.
What Treason and Sedition Actually Mean
Article III, Section 3 of the Constitution says "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." It adds that "no person shall be convicted of treason" unless two witnesses testify to "the same overt act" or the defendant confesses "in open court."
That stringent definition of treason was a response to historical abuses, which extended the concept to include thought crimes, offensive remarks, religious dissent, and other nonviolent conduct that did not entail armed rebellion or siding with the nation's wartime enemies. The statutory definition of treason tracks the language of the Constitution.
That law does authorize a maximum penalty of death, which probably was what Trump had in mind when he condemned the "traitors" who appeared in the video that offended him. But nothing they said or did came remotely close to the elements of this crime.
What about sedition? Contrary to what Trump implied, there is no such stand-alone crime under the current U.S. Code. But federal law defines "seditious conspiracy" as a plot to "overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof." That also seems far afield from urging members of the armed forces to defend the Constitution and respect the law, which is what the legislators did in that video.
Eager to deliver on the president's threat, Jeanine Pirro, the Trump-appointed U.S. attorney for the District of Columbia, reportedly turned to 18 USC 2387, which applies to someone who "causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States." That crime, which is punishable by up to 10 years in prison, requires an "intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States." And as relevant here, the Uniform Code of Military Justice defines insubordination as willfully disobeying a "lawful order," while the video explicitly addressed "illegal orders."
How bad was the fit between Section 2387 and the political speech that Pirro claimed it covered? So bad that a grand jury rejected her proposed indictment in February—a remarkable setback, since grand jurors, who hear only the government's side of a case, almost always approve charges recommended by federal prosecutors. Two weeks later, NBC reported that Pirro had decided to drop the case.
The fact remains that the president of the United States wanted to imprison six members of Congress for saying things he did not like. And instead of trying to dissuade him, a federal prosecutor tried to make his revenge fantasy come true.
That episode is especially striking because it went beyond bluster. But it was consistent with Trump's general attitude toward his political opponents, whom he routinely describes as traitors who belong in jail.
Trump Sees Traitors Everywhere
After Trump fired FBI Director James Comey in May 2017, Deputy Attorney General Rod Rosenstein suggested that Justice Department officials start recording their conversations with the president. That was "illegal and treasonous," Trump said.
Failing to applaud Trump during his State of the Union address might qualify as treason, he suggested in 2018. "Can we call that treason?" he wondered. "Why not? I mean, they certainly didn't seem to love our country very much."
That same year, The New York Times published an anonymous essay by an administration official who was critical of the president. That was also "treason" in Trump's book. So was Democratic opposition to his immigration policies, Trump declared on Twitter in April 2019.
The following month, Trump said the federal investigation of his 2016 campaign's alleged ties to Russia was "treason." Two months later, he reiterated that characterization, describing the Russia probe as an "illegal and treasonous attack on our Country."
Trump took a similar view of the controversy that led to his first impeachment, which involved a telephone call in which he pressured Ukrainian President Volodymyr Zelenskyy to launch a corruption investigation of Joe Biden, the opponent Trump expected to face in the next year's presidential election. The transcript of that call "reads like a classic organized crime shakedown," Rep. Adam Schiff (D–Calif.) said during a House hearing in September 2019.
Schiff then summarized "the essence of what the president communicates." Although Schiff did not claim to be quoting Trump directly, his paraphrase, which he later said was partly "parody," was misleading in at least one respect. But instead of simply trying to correct the record, Trump said Schiff should be "questioned at the highest level for Fraud & Treason" because "he wrote down and read terrible things, then said it was from the mouth of the President."
The next day, Trump doubled down. Schiff "illegally made up a FAKE & terrible statement," "pretended it to be mine," and "read it aloud to Congress and the American people," Trump complained. "It bore NO relationship to what I said on the call. Arrest for Treason?" The following month, Trump reiterated that Schiff had committed "High Crimes and Misdemeanors, and even Treason," adding that House Speaker Nancy Pelosi (D–Calif.) was "every bit as guilty" because she was complicit in Schiff's "ruthless con."
Trump also was mad at the House select committee that investigated the 2021 Capitol riot—the incident that sparked his second impeachment. The committee included Schiff and eight other legislators: Reps. Bennie Thompson (D–Miss.), Zoe Lofgren (D–Calif.), Pete Aguilar (D–Calif.), Stephanie Murphy (D–Fla.), Jamie Raskin (D–Md.), Elaine Luria (D–Va.), Liz Cheney (R–Wyo.), and Adam Kinzinger (R–Ill.). In March 2023, Trump said all of them "should be prosecuted for their lies and, quite frankly, TREASON!"
Last July, Trump deployed that charge against former President Barack Obama, who he said was caught "absolutely cold" trying to "rig the election" in 2016 and 2020. "What they did in 2016 and 2020 is very criminal," Trump told reporters at the White House. "This was treason."
After launching a war against Iran last February, Trump objected to unfavorable news coverage of the conflict. "When the Fake News says that the Iranian enemy is doing well, Militarily, against us, it's virtual TREASON in that it is such a false, and even preposterous, statement," he said in a Truth Social post on May 12. "They are aiding and abetting the enemy! All it does is give Iran false hope when none should exist. These are American cowards that are rooting against our Country."
A few days later, Trump accused New York Times reporter David Sanger of the same crime. "I had a total military victory, but the fake news, guys like you, write incorrectly," he told Sanger. "I actually think it's sort of treasonous what you write."
As Trump described it, journalists like Sanger were guilty of "virtual TREASON," meaning they were only "sort of treasonous." That counts as rhetorical restraint for Trump, who on other occasions has made it clear that he thought the objects of his ire should be arrested, prosecuted, imprisoned, and maybe even executed for crossing him.
The Treason Clause Was Meant to Stop Exactly This
Trump's treason tic might seem laughable in a country where people generally are free to speak their minds without worrying that they will be carted off to jail—let alone burned at the stake or hanged, drawn, and quartered (the traditional punishments for treason in Tudor England). But there is plenty of historical precedent for Trump's attitude, which is why the Framers decided to define treason narrowly.
Under the new Constitution, James Wilson explained at the Pennsylvania Ratifying Convention in 1787, "Congress can neither define nor try the crime. If we have recourse to the history of the different governments that have hitherto subsisted, we shall find that a very great part of their tyranny over the people has arisen from the extension of the definition of treason. Some very remarkable instances have occurred, even in so free a country as England."
Wilson, a jurist who would later serve on the U.S. Supreme Court, offered an example: "If I recollect right, there is one instance that puts this matter in a very strong point of view. A person possessed a favorite buck, and, on finding it killed, wished the horns in the belly of the person who killed it. This happened to be the king: the injured complainant was tried, and convicted of treason for wishing the king's death."
Whether or not Wilson recollected right, the incident he described is plausible given the broad meaning of treason under early English law. As developed by the courts, the concept included "constructive treason," which encompassed situations that even Trump might not recognize as examples of the crime. "During the early reign of Edward III a knight forcibly held a man until he paid ninety pounds," which "was held to be treason because the knight was guilty of accroaching, or attempting to exercise, royal power," according to an unsigned 1959 Indiana Law Journal article.
Although the Treason Act of 1351 was supposed to rein in such extensions, it left a lot of leeway for abuse, partly because it defined the crime to cover anyone who "doth compass or imagine" the death of the king, the queen, or the heir apparent. "In the years following the reign of Edward III," the law journal article notes, the courts "construed this to mean that if a man imagined the death of the king, he should be put to death for such imagining, without having done anything—that is, without any overt act."
Trump probably would see nothing wrong with that understanding of treason. After all, he demanded that ABC fire late-night comedian Jimmy Kimmel for telling a joke that imagined the president's death, and he ordered James Comey's prosecution for sharing a picture of seashells arranged to form a numerical slogan that supposedly alluded to the same outcome.
Trump likewise might welcome the legal regime established during Henry VIII's reign, when acts or words deemed to undermine the chief executive's dignity qualified as treason. Sir Thomas More, Henry's former lord chancellor, was executed for treason in 1535 because he refused to acknowledge the king's authority over the English church and declined to recognize his marriage to Ann Boleyn. Under Elizabeth I, treason included deviating from royally sanctioned religious beliefs.
The Treason Act of 1351 remained in effect during the reign of George III, the king against whom American colonists eventually rebelled, although by then an overt act was required to substantiate the charge. After Rhode Islanders burned a British vessel assigned to intercept smugglers in 1772, Edward Thurlow, England's attorney general, and Alexander Wedderburn, the solicitor general, deemed the sabotage an act of treason. Two years later, they reached the same conclusion about the Boston Tea Party because the protesters had aimed to obstruct enforcement of legislation enacted by Parliament.
In both cases, the perpetrators were threatened with trial in England, a prospect that further inflamed Americans who already had a long list of grievances against George III's government. Once the Founders decided to separate from England, they were acutely aware that they qualified as traitors subject to execution. They were also familiar with the long history of abuses stemming from a broad understanding of treason.
"In point of precision and accuracy with regard to this crime," English common law "was grossly deficient," Wilson observed in 1791. "Its description was uncertain and ambiguous; and its denomination and penalties were wastefully communicated to offences of a different and inferiour kind."
Although the Treason Act of 1351 was designed to "lop off these numerous and dangerous excrescences," its safeguards had failed "during times remarkably tyrannical or turbulent," Wilson noted. "Admonished by the history of such times and transactions as these, when legislators are tyrants or tools of tyrants," he added, "the people of the United States have wisely and humanely ordained, that 'treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.'"
When America Criminalizes Dissent, It Does Not Go Well
The related concept of sedition posed similar dangers. In 1734, for example, John Peter Zenger, publisher of The New-York Weekly Journal, was charged with seditious libel, a crime that English common law defined to include speech that brought government officials into "hatred or contempt." His offense was printing articles that criticized New York's royal governor.
The potential penalties for seditious libel, which included unlimited fines and up to life in prison, were severe, and truth was no defense. To the contrary, an old maxim held that "the greater the truth, the greater the libel," meaning that accurate criticism was more likely to generate popular outrage. Zenger's jury nevertheless refused to convict him. That 1735 verdict was both an early victory for freedom of the press and a precedent that advocates of jury nullification cite to this day.
The lessons of that episode were evidently lost on the Federalist legislators who approved the Sedition Act of 1798. Amid a panic about a seemingly imminent war with France, President John Adams' party viewed Vice President Thomas Jefferson's Democratic-Republicans as "Jacobins" inclined to aid and abet French conquerors. In response to that supposedly existential threat, Congress enacted a law abridging freedom of the press just seven years after the states had ratified a constitutional amendment that ruled out such legislation.
Among other things, the Sedition Act made it a crime, punishable by a fine up to $2,000 (something like $54,000 today) and up to two years in jail, to write or publish "any false, scandalous, and malicious writing" against "the government of the United States," Congress, or the president. The Federalists, who were openly targeting their political opponents, presented the statute as less severe than the common-law definition of seditious libel, since it required malicious intent and theoretically recognized truth as a defense. But in practice, neither requirement proved an obstacle to prosecutions, which were facilitated by Federalist judges, including Supreme Court Justice Samuel Chase.
The two dozen or so defendants who faced indictments included a member of Congress and various irksome journalists, all Democratic-Republicans. As the legal scholar Wendell Bird notes in his book Criminal Dissent, the Federalists sincerely believed the opposition was not just wrong but fundamentally illegitimate. In their view, the people got a chance to participate in the political process every few years through elections, and they should otherwise keep quiet if they did not have anything nice to say. The Federalists thought criticizing a duly elected government was disruptive, destabilizing, and subversive—in a word, seditious.
The Sedition Act expired on March 3, 1801—not coincidentally, the day before Jefferson took office as president. But it was enormously unpopular during its brief existence, providing a potent political weapon to Jefferson's party, which portrayed the law as tyrannical and unconstitutional. The Federalists' ham-handed attempt to criminalize their opponents played a major role in the party's collapse.
Similar repression has periodically resurfaced in the United States, typically tied to war or the threat of war. During the Civil War, Abraham Lincoln suspended the writ of habeas corpus, and his government arrested thousands of suspected Confederate sympathizers. During World War I, Congress approved the Espionage Act of 1917, which made it a crime, punishable by up to 20 years in prison, to obstruct military recruitment. The Sedition Act of 1918 extended that crime to include "any disloyal, profane, scurrilous, or abusive language" regarding "the form of government of the United States," the Constitution, or the U.S. armed forces.
In the 1919 case Schenck v. United States, the Supreme Court unanimously upheld the Espionage Act convictions of two Socialist Party members who had distributed anti-draft pamphlets, saying such speech posed a "clear and present danger" in the context of an ongoing war. A week later, the justices applied the same reasoning in upholding the Espionage Act conviction of perennial Socialist presidential candidate Eugene V. Debs, who had been sentenced to 10 years in federal prison for criticizing the war and the Wilson administration.
The Supreme Court also looked kindly on the Smith Act of 1940, which made it a crime to advocate "overthrowing or destroying" the government "by force or violence." In the 1951 case Dennis v. United States, the justices approved the prosecution of Communist Party members under the Smith Act, again relying on the "clear and present danger" test. But the Court repudiated that test in the 1969 case Brandenburg v. Ohio, holding that advocacy of illegal conduct can be treated as a crime only when it is both "directed" at inciting "imminent lawless action" and "likely" to do so.
Disloyalty to Trump Is Not Treason
The charge Pirro tried to deploy against the politicians whose video annoyed Trump is a descendant of the Espionage Act and the Smith Act, which included similar language about "willfully" trying to undermine military discipline. But even if Pirro had managed to obtain an indictment, any prosecution would have been constrained by the Brandenburg test as well as the statute's intent requirement.
More typically, Trump's charges of treason and sedition are not tied to any particular law. Rather, he equates disloyalty to him with disloyalty to the nation, harking back to the commodious conceptions of these crimes that prevailed under English common law and the edicts of tyrants such as Henry VIII.
Like the Federalists in the 1790s, who portrayed their political opponents as Jacobins bent on annihilating the republic, Trump describes Democrats as "sick, sinister, and evil people" who are "trying to destroy our country" because they "hate our country." They are "communists," "Marxists," "fascists," "radical left lunatics," and "sick people" who "live like vermin within the confines of our country" and constitute "the enemy from within." They are a "disgrace to our nation," Trump says, because "they're against anything that makes America strong, healthy, and great again."
Such thinking did not work out very well for the Federalists. It remains to be seen whether the Republican Party will pay a long-term price for tying itself to the authoritarian impulses of a thin-skinned, vindictive man who sees no difference between dissent and treason.
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