Constructive Treason

 Trump would like nothing better than to be able to promulgate ex post facto laws or bills of attainder; to have a special Star Chamber in which the ordinary rules of evidence and due process do not apply—in short, to get away with all the ancient abuses of power of the pre-modern British monarchy that our United States Constitution expressly proscribes. 

His approach to every criminal case is to first figure out the person he wants to accuse of being guilty—and then to go about finding something to charge him with. His hirelings in the administration—Gabbard, e.g.—have spent recent weeks laying the groundwork for a ludicrous prosecution for "treason" against former president Obama, for his purported involvement in the FBI's Trump-Russia investigation (much of which occurred, let us recall, under Trump's own first administration!). Trump's Justice Department has apparently already opened another fishing expedition to buttress these accusations. 

Keep in mind that Trump already appointed a special counsel to investigate these allegations during his first term—and the latter came up empty. Keep in mind too that treason is still potentially a capital offense in the United States—punishable by death. The current President, then, is literally howling for the judicial lynching—on patently concocted, spurious, absurd charges that are contradicted even by the administration's own report that supposedly proves them—of the nation's first African American President. 

Trump's FBI has also interviewed former FBI chief James Comey for daring to post the numbers "8647" on social media—which according to some interpretations, means something like "get rid of Trump (i.e., the 47th president)." For Comey, this prosecutorial harassment will most likely be a fleeting inconvenience. But some people of lesser prominence have actually been convicted on accusations of "threatening" the President—including one man in Pennsylvania who pled guilty this week for writing "im going to kill Trump" on TikTok.

Back when I was learning First Amendment law for the bar (oh, about a week ago), we still had something called the Brandenburg doctrine—according to which even inflammatory political speech is protected under the Constitution, so long as it is not directed to provoking imminent lawless action and likely to provoke it. I would doubt the comments from either Comey or the TikTok poster would meet this definition of "incitement." 

But how about the definition of a "threat"? The Supreme Court has likewise drawn that concept fairly narrowly. In a 1969 case, they said that the comment at issue has to be a "true threat" in order to fall outside the protection of the First Amendment. Incendiary or colorful political expressions—even ones that appear to endorse violence—do not typically belong to this category. 

Indeed, the facts of the case that gave us the "true threat" doctrine are troublingly similar to the ones that appear to have gotten the Pennsylvania citizen arrested. In that 1969 case, a young protester was charged for allegedly saying, ""[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The Supreme Court found that this statement was protected political speech: "a kind of very crude offensive method of stating a political opposition to the President," to be sure—but not beyond the ambit of the First Amendment. 

The statement that the Supreme Court found constitutionally protected in 1969 sounds pretty indistinguishable to me from the statement the Pennsylvania man posted on TikTok. But we live in Trump's America now—where respect for precedent is not much in evidence. Trump, it seems, would like to bring back the old law of treason from England—where, from ancient times, the crime was defined so as to include "imagining the death of the king." That seems to be what this citizen in Pennsylvania was actually charged with.

But even in old England—the England we rebelled against at our country's foundation—"imagining the death of the king" was understood to require more than a mere mental state. It required, according to precedent, an "overt act." 

I was just reading William Godwin's classic pamphlet on Justice Eyre's jury instructions—during the high-profile political prosecution of twelve radical reformers in 1794. Godwin (the famous radical philosopher and father of Mary Shelley)—managed to make such a convincing defense of the accused radical "traitors" in this pamphlet that he was widely credited with saving them from a capital sentence. (Hazlitt records in The Spirit of the Age that John Horne Tooke—one of the accused radicals—once kissed Godwin's hand at a party, saying: "I can do no less for the hand that saved my life!")

In the pamphlet, Godwin shows painstakingly how no precedent in the English courts supports extending the concept of "treason" to cover mere advocacy of radical reform. He notes that, under a statute enacted precisely in order to narrow the definition of treason—and to prevent ministers from using the law as a pretext to punish their political opponents—the concept of "imagining the king's death" was understood to include only such overt conspiracies as rallying troops to invade the island of Britain, etc. 

Godwin even shows that Justice Eyre admits as much, in his jury instructions. He just then made the unwarranted further leap to suggesting that the unique exigencies of the time—as well as the bad example of revolutionary France—required a new definition of treason. To which Godwin replies: that should be for Parliament to decide; not the courts. 

Justice Eyre's jury instructions suggest that there is some category of "constructive treason"—which, even though it fall outside of precedent, may be defined as a form of treason for purposes of contemporary political prosecutions. Trump would no doubt love to have such a tool of "constructive treason" at his disposal. It seems the only possible way he could stretch the definition of the crime to include Obama permitting an independent Justice Department to investigate Russian interference in the 2016 election, say. 

But Godwin shows all the disadvantages—to put it mildly—that would attend such an expansion of the concept. Godwin quotes Blackstone on the subject: 

By ancient common law, there was a great latitude left in the breast of the judges, so to determine what was treason or not so; whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons: that is, to raise, by forced and arbitrary constructions, offences into the crime and punishment of treason, which were never suspected to be such. To prevent these inconveniences, the statute 25 Edward III, chapter 2, was made. --This is a great security to the public, and leaves a weighty memento to judges to be careful, not overhasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled.

"Creatures of tyrannical princes"—that sounds an awful lot like Pam Bondi, Kash Patel, Dan Bongino, and Tulsi Gabbard to me! And they are clearly trying to take the same tack that Blackstone and Godwin warned against—namely, that of broadening the definition of "constructive treason" so as to become an all-purpose tool for persecuting the government's critics—even though English statute and legal tradition from before the founding—not to mention our own U.S. Constitution, which was created in order to escape the tyrannical abuses of the British monarchy—expressly forbade it. 

But at least Obama, Comey, and this Pennsylvania citizen have the protections of the U.S. courts. It is hard, within their jurisdiction, for government prosecutors to entirely evade the minimal requirements of due process and habeas corpus. 

Not so for the people the U.S. government has deported and sent to third countries or secret prisons in Panama, El Salvador, Eswatini, or South Sudan. Noncitizens sentenced to such a fate have not even received the minimal protections of notice or a chance to plead their case. 

Why has the government been so anxious to spirit away asylum-seekers and noncitizens in the dead of night, without the slightest due process? No doubt—because they want to portray them as criminals; as monsters, for purposes of political messaging. And it will never do, therefore, to permit them to have a day in court—where they might refute the charges. So—better to assume their guilt, and then banish them somewhere on the other side of the planet where they can never tell the American people the truth. 

It's the same reason—in short—why the government was so anxious to prosecute the twelve English radicals in 1794 and railroad them to the scaffold as quickly as possible. I leave you with Godwin's words on the subject—which could just as well be applied to the fate of the 250 innocent Venezuelan asylum-seekers they sent to El Salvador (later released as part of a prisoner hostage deal)—or in the case of Kilmar Abrego Garcia, whom they have now tried to smear with absurd, unsubstantiated criminal charges—based on the say-so of hired government informants—just so they can cover up for their own mistake in having wrongfully deported him in the first place: 

Government hastily involved itself in a dilemma, by apprehending these men for the sake of propagating alarm; and it is thought better to hang a few innocent persons, than that the Minister should stand detected in an error, or that the arm of government should be weakened by an act of justice.