Would The Framers Have Viewed The Capitol Riot As An Act Of Treason?

Capitol rioters

Reprinted with permission from Alternet

Former President Donald Trump's second impeachment trial is set to begin next week, and senators will be asked to decide whether or not he committed "incitement to insurrection." While Trump has previously been accused by various commenters of "treason" on multiple fronts, in uses of the term usually dismissed by experts, the charge of treason has been largely absent from the debate around the Capitol attack. But in a recent piece of The New Yorker, Harvard University law professor Jeannie Suk Gersen, discussing Trump's impeachment and the events of Jan. 6, argued that the term may be more apt than ever.

Gerson cited the work of Carlton F. W. Larson, a law professor at the University of California at Davis, who has argued that there are many unethical acts and impeachable offenses that don't qualify as treason. Certain corners have frequently accused Trump of "treason" in the Russia investigation, the Ukraine impeachment, and other matters, but Larson has been reticent to apply that label as a technical, legal, and historical matter.

Gersen wrote: "But the insurrection of Jan. 6 changed his answer, at least with regard to Trump's followers who attacked the Capitol in an attempt to stop Congress' certification of the election."

She explained:

... to the Framers, such an insurrection was a paradigmatic case of treason. The founding-era Chief Justice John Marshall held in the treason trial of Aaron Burr that levying war entails "the employment of actual force" by "a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility." If some of those who attacked the Capitol assembled in order to incapacitate Congress—perhaps even by kidnapping or killing lawmakers—then their actions could be construed as an attempt to overthrow the government, and federal prosecutors could plausibly consider treason charges. As Larson put it, "At some point, you have to say, if that's not levying war against the United States, then what on earth is?"

The United States' Founding Fathers, Gersen noted, "gave treason a narrow definition" and "made it extremely difficult to prove" because it is such a serious offense. And Gersen wemt on to explain that "since the Capitol insurrection, there has been little talk of treason charges — adding that according to Larson, that is because "everybody now tends to think of treason as mostly aiding foreign enemies."

Gersen wrote, "A treason case against Trump himself might conceivably be built, if prosecutors could establish that he knew in advance that his supporters planned to violently assault the Capitol, rather than peacefully protest; that he intended his speech urging them to 'fight harder' to spur them to attack Congress imminently; and that he purposely didn't do anything to stop the insurrection while it was unfolding — or, worse, intentionally contributed to a security failure that led to the breach. Then, Trump would have engaged in treason along with supporters who attempted, in his name, to overthrow the U.S. government."

Countless Trump critics have described the Jan. 6 attack asn an "insurrection," but Gersen stresses that insurrection doesn't necessarily fit the Constitution's narrow definition of treason.

"While federal prosecutors could charge some of the leaders of the riot with treason, seditious conspiracy would be far easier to prove," Gersen explains. "It is clear that the rioters' goal was, at a minimum, to delay Congress' legally mandated counting of electoral votes. Prosecutors would need to prove that two or more people had agreed to undertake the seditious conduct, but, with respect to the rioters who were explicit about their aims and coordinated their actions, the evidence may well be sufficient, particularly given the violent result."

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