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The Case for Treason
|John Marshall, Chief Justice of |
the Supreme Court from 1801 until 1835
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Article III, Section 3, of the Constitution reads as follows: “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.” It is the only crime important enough to be specifically defined in the Constitution.
There is no question that the insurrectionists who invaded the Capitol on January 6, 2021, were not “adhering” to any enemy of the United States, or “giving them aid or comfort.” Hence, charging them with treason would depend on whether what they did qualifies as “levying war” against the United States. Either way is an available pathway for accusations of committing acts of treason, clearly separated in the Constitution by the word “or.” Only the “levying war” definition, however, is applicable to the January 6 insurrectionists.
In researching this, it becomes clear that to qualify as “levying war,” (Article III, Section 3, Clause 1), that act requires an assemblage of men who actually carry out their plans to levy war against the United States. Supreme Court Chief Justice John Marshall (in Ex Parte Bollman and Ex Parte Swartwout, 8 U.S. 4 Cranch 75 75 1807 … stemming from the trial for treason of Aaron Burr) points out that planning to do this without actually taking action did not constitute treason but that ‘if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”
The January 6 insurrectionists, an organized body of men, including armed groups, invaded the Capitol by force to prevent the Electoral College vote from becoming official thereby transferring the presidency to the winner. This was not just “planning.” It was an actual act in which government police defending the Capitol were injured and in at least one instance, killed. This was a “treasonable purpose” and hence, those who carried it out should be tried for treason and those who “perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, might also be considered as traitors.”
Trump, in whose name and interest the insurrectionists were acting, might be considered as having been in league with the “general conspiracy” and might fall into this category. Senators Cruz and Hawley, however, do not seem to have been “leagued in the general conspiracy” and therefore, unlike Trump, are probably not subject to being included among those accusable of treason. Certainly though, their encouragement amounted to violation of other statutes.
Careful reading of this part of the Constitution and of the opinion of Chief Justice John Marshall in 1807, as cited and quoted in part above (and which got former Vice President Aaron Burr off the hook) should be done to understand what actually constitute acts of treason. The Department of Justice should be telling the January 6 insurrectionists and Donald J. Trump that “we’ll be seeing you in court.”
(One might ask about those whose acts against the United States took place during the Civil War. Weren’t they treasonous? An argument against that might be that they had renounced loyalty to the United States and became citizens of another nation, the Confederate States of America. Hence, a court might rule that the provisions of the Constitution and the opinion of the Supreme Court were not applicable to them. It’s a fine distinction, but while they were “rebels,” they were not traitors because the nation to which their loyalty was directed was the Confederacy and not the United States. The courts avoided considering this possibility because doing so would risk giving a degree of legitimacy to the Confederacy. When Confederate President Jefferson Davis was apprehended, the Federal government really didn’t know what to do with him and ultimately released him after a few years in custody. The January 6 insurrectionists, however, professed loyalty to the United States and their acts were clearly treasonous.)
Could it Happen This Way?
Sooner or later the following will take place.
(1) Voter repression laws will be passed by many Republican controlled State legislatures.
(2) The Supreme Court will uphold these laws.
(3) The Democrats will finally realize that there will be a sufficient decline in their support because of these laws to give control of both Houses of Congress to the Republicans in 2022.
(4) The Democrats will rush to admit Puerto Rico and the District of Columbia as States, giving them more power in the Senate and the Electoral College, and to announce plans to expand the Supreme Court.
(5) Neither will be accomplished in time for the 2022 election so President Biden will turn to Executive Orders as the best way to preserve democracy in America, precipitating a crisis of unknown and unpredictable dimensions.
|Joe Biden, Ever the Optimist|
Liberal and progressive Americans (most Democrats of today and most Republicans of the 1860's and early 1870's) underestimate the ignorance and gullibility of the American voter. Conservatives and reactionaries never do.
Item added on April 14
RoboCalls .... Am I Serious or Just Angry?
A couple of years ago, an article (Wall Street Journal, March 28, 2019) was posted indicating that only $6,790 Of $208 Million In Robocall fines have been collected by the FCC. The laws against such calls are unenforceable for a variety of reasons such as the criminals disappearing, their never have been in the country to start with or their constant changing of phone access. Apparently it is easier to apprehend a murderer or a rapist than to catch the criminals behind Robocalls. The same goes for emails and text messages aimed at scamming the recipient.
I’ve had a few slippery calls over the past few days, one supposedly from my electric company and the other from someone who said the credit card I use on Amazon had been compromised. (Once I heard their messages I deleted both calls which initially appeared to come from legitimate sources.) While the Eighth Amendment outlaws cruel or unusual punishment, I think it should be suspended for a limited time and the death penalty imposed on officers of companies sending out such Robocalls and those involved in such calls “live” as well as for criminals carrying out similar scams on the internet. After a few executions here and assassinations outside of the country where we are unable to extradite the criminals, I think there will be a reduction in such calls. After a year or so, the Amendment can be reinstated.
Until that is accomplished, the telephone service of everyone reading this, as well as internet service, both of which we pay for, will remain compromised. These criminals are forcing you to limit the use of something for which you pay good money.
Another way of stopping such messages from contaminating your telephone and internet service might be by making the providers of these services criminally culpable for transmitting them, and subject to the same penalties suggested above, or reducing your bills proportionately based on how many such messages get through to you. Unfortunately, such solutions would cost a lot of money which would be reflected in increased cost to you and probably not work. Simply, it would be better, and less expensive, to just execute the criminals when they are identified and convicted. At least for a year or two.
Florida Republicans kill democracy ...
"The people be damned."
Jim Carroll was the Democratic candidate for the Florida House in 2020 for District 85, in north and western Palm Beach County.
You’ve heard of death by a thousand cuts. Florida Republicans have inflicted the thousandth cut on democracy in this state. Democracy in Florida is just about dead. The state effectively has a one-party (Republican) regime.
Florida Republicans acquired their overlord status in large part through voter suppression. After the November 2020 election in which many more Democrats than Republicans voted by mail, Republicans had to suppress that. Republican Sen. Dennis Baxley introduced SB 90, which retroactively voids as many as 6 million already-filed 2022 mail-voting sign-ups and bans mail-ballot drop boxes, which were used without incident by 1.5 million Florida voters last year. It’s voter suppression on steroids.
Even Georgia’s vicious new voter-suppression law, doesn’t go as far as SB 90 in suppressing vote-by-mail.
Florida Republicans say the bill is needed to combat voter fraud. The fact there wasn’t any voter fraud in Florida’s November election, out of more than 11 million votes cast, doesn’t matter. When you’re a one-party regime, you can do what you want.
The only election-related fraud actually going on in Florida is the brand practiced by Republicans. In 2020 Republicans attempted to steal three state senate elections by putting up phony candidates to trick voters and siphon off Democratic votes. In one, Republican former state Sen. Frank Artiles put up a fraudulent no-party candidate with the same last name as Democratic incumbent Jose Javier Rodriguez. It worked. They beat Rodriguez by 32 votes.
Over $500,000 in dark money reportedly was spent perpetuating the fraud in these three elections. Two Republicans have been indicted so far.
Republicans aren’t worried about what voters might think. The Republicans’ real constituents aren’t the voters, but Big Sugar, the Koch brothers and the like. These rich allies get them elected every term, regardless.
That’s why, after 65% of Florida voters approved a constitutional amendment in 2018 giving ex-felons the right to vote, Republicans didn’t hesitate to pass legislation essentially nullifying the amendment. They’re now taking the knife to the $15-minimum-wage amendment approved by 60% of the voters in November.
What about the business of the people? The people be damned.