In What if this Shit Gets Serious, Scott?, a number of Spartans took umbrage with my assertion that Adam Schiff could not be convicted of treason under the Constitution. I believe the consensus was that I was full of shit which, as many faithful readers know, is often the case.
But in this instance, I think I’m on pretty firm ground.
Once again, let’s read together what 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. 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.
The Founders wished to strictly limit treason to war-time activity. The language in our Constitution has its roots in the British Treason Act 1351. The part they were concerned about was that it was treason (and punishable by death) to “compassed or imagined” the death of the King, his wife or his eldest son and heir. This made it too convenient a tool for political enemies.
Thus, in the Constitution, treason consists only in levying war against the United States or adhering to its enemies by giving them aid and comfort. It may be proved only by confession in open court, or on the testimony of no fewer than two witnesses to the same overt act.
The case of Civil War General Robert E. Lee provides some insight. Abraham Lincoln himself had recommended that Lee by tried for treason.
General Grant opposed the idea of prosecuting Lee for treason. He argued that the terms agreed upon at Appomattox granted parole to the surrendering forces. They exempted Lee and his Army of Northern Virginia from further prosecution since they promised that the defeated Confederates would “not be disturbed by U.S. authority so long as they observe their parole and the laws in force where they may reside.”
In the end, Lee was granted amnesty and not tried for treason.
Another interesting point is that the United States never declared war against the Confederacy.
Abraham Lincoln had insisted from the beginning that since war is a condition that exists only between two sovereign nations, and since the Confederacy was in his view only an insurrection, no actual war legally existed between the North and the South. (The United States, for instance, never declared war against the Confederacy.) So it was not quite clear that Lee could be, by Lincoln’s definition, guilty of levying war.
In the case of United States v. Rodriguez, the United States Court of Appeals, Seventh Circuit addressed various questions of treason versus seditious conspiracy.
Treason, a more limited offense than the offense of seditious conspiracy, Cramer v. United States,325 U.S. 1, 8-22, 65 S.Ct. 918, 921-929, 89 L.Ed. 1441 (1944), is the most serious national crime and is punishable by death. It can only be committed by someone owing allegiance to the United States and it consists only of levying war against the United States or giving aid and comfort to its enemies. The reason for the restrictive definition is apparent from the historical backdrop of the treason clause. The framers of the Constitution were reluctant to facilitate such prosecutions because they were well aware of abuses, and they themselves were traitors in the eyes of England.
United States v. Rodriguez, 803 F.2d 318, 320 (7th Cir. 1986)
18 USCS § 2384. Seditious Conspiracy.
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire 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, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Can Adam Schiff be indicted for Seditious Conspiracy? Probably not because it depends on the use of force. But you never know I suppose. But as Kermit the Frog has said, “Life’s like a movie. Write your own ending.”