Treason and Its Misprision

– September 18, 2021 Reading Time: 4 minutes

The U.S. Constitution defines only one criminal act, treason, and does so in such a way as to deliberately restrict its use against political opponents. While it is not easy to convict an American of treason, as recently as 2006 a grand jury indictment for treason came down on an American for participating in al-Qaeda propaganda videos. The accused was killed in a drone strike so we will never know how his prosecution would have gone down. Since the 1950s, though, prosecutors have usually found it easier to prosecute people for other crimes with less stringent evidential requirements.

Article III, Section 3, Clause 1 of the U.S. Constitution reads:

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.

In one of the cases stemming from Aaron Burr’s attempt to carve a new country out of some Western states and territories, called Ex parte Bollman (1807), John Marshall, Chief Justice of the Supreme Court of the United States (SCOTUS), argued that conspiracy alone did not constitute treason. “There must be an actual assembling of men, for the treasonable purpose,” he wrote, “to constitute a levying of war.” The assembly must also try to effect the “treasonable purpose … by force.” During Burr’s trial, Marshall maintained a strict construction of the “two Witnesses to the same overt Act,” virtually ensuring the former vice president’s acquittal.

Over one million Confederate officers and soldiers clearly committed treason during the Civil War but President Abraham Lincoln was preparing a pardon plan before his assassination. In May 1865 his successor, Andrew Johnson, pragmatically granted all but top confederate leaders and some bad guys general amnesty if they took an oath to the United States and promised to uphold slave emancipation decrees. A more stringent approach would have been administratively and economically costly and perhaps provoked desperate Southerners to keep fighting.

In Cramer v. United States (1945), SCOTUS ruled that to be convicted of treason short of waging war, an American has to “adhere” to the country’s enemies AND (not or) give them “aid and comfort.” That meant proving both action and intent but a handful of prosecutions nevertheless succeeded. In one, Haupt v. United States (1947), a father who had helped his saboteur son was successfully prosecuted because he had given his son an automobile and lodgings (aid) and had made comments sympathetic to Nazi Germany (adherence).

About the same time, the eccentric Jenkintown, Pennsylvania-bred poet Ezra Pound (1885-1972) was imprisoned on charges of treason for the hundreds of pro-Mussolini radio broadcasts he made in Italy during World War II. Declared mentally incompetent for trial, he languished in a DC psychiatric hospital prison from 1945 until his discharge in 1958. He returned to Italy, where he made contradictory claims about his views until his death from natural causes.

But it was the Rosenberg case that rendered treason largely moot. After evidence surfaced that Ethel (1915-1953) and Julius Rosenberg (1918-1953) had given atomic bomb secrets to the Soviets, they were convicted under the Espionage Act of 1917, not for treason. Despite a public outcry for clemency and claims that the treason clause’s strict evidentiary standards should apply to all traitorous acts regardless of their legal appellation, they were duly executed. Ever since, prosecutors have almost always indicted traitors for related felonies that are easier to prove in court.

So even if General Mark Milley actually did what he is accused of doing — telling the Chinese that he would warn them of a US attack, calling secret meetings of top military brass, and such — it wasn’t treason. He may have broken other laws or military protocols but he did not command troops in the field against the government and while he adhered to China in a sense, he did not aid it. Most importantly, China technically has not been our enemy since the Korean Armistice Agreement of 1953.

What if though, hypothetically speaking, some major government official were to commit treason and not only admit to the widely-witnessed act but proclaim it a success? Something crazy, like cooperating with an enemy actively harboring other enemies by giving it intelligence on stranded American citizens and allies and gifting the enemies military equipment? Even if it proved economical to leave some heavy, low-valued military items behind, what if key components that should have been spiked or removed and destroyed were left intact, along with rifles, night goggles, and other light, high-cost equipment that could have been shipped home or sold to allies?

Some jurists seem to think a formal declaration of war against the enemy is a necessary condition for a treason charge to be brought. The Civil War and the 2006 indictment mentioned above, however, suggest that de facto war is sufficient if evidenced by military spending and leadership claims of fighting a “rebellion” or a “war on terror” and suspending civil liberties in ways thought justifiable only during wartime, as with the suspension of habeas corpus or passage of the so-called Patriot Act.

Readers might recall that many mass media outlets accused former President Donald J. Trump of treason for something or other. That might have stemmed from OMBS (orange man bad syndrome) but it could also have been to protect themselves from indictment for “misprision of treason,” which makes it illegal if anyone “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.”

All Americans had better tell POTUS or a judge right quick that they may have witnessed treason during the Afghanistan debacle or we may all need amnesty for misprision of treason! I would have done so already if I knew for sure who was calling the shots in Washington. Thankfully, there appears to be no “misprision of misprision of treason” so Americans are under no legal obligation to rat out the entire White House and Pentagon.

Seriously folks, we have too many laws and will continue to have too many until we impose a cost on our rulers for keeping them around. A law against treason is one thing but a law requiring Americans to understand the law against treason, to be on the lookout for treasonous acts, and to report any immediately is a law too far, even if it is fun to think about so many of our leaders going to prison for misprision.

Robert E. Wright is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997. Robert E. Wright was formerly a Senior Research Faculty at the American Institute for Economic Research.