What Tools Not To Use In Political Fighting: A Pocket Guide

Congressional pugilistsCongressional pugilists. A crude portrayal of a fight on the floor of Congress. (Photo: Library of Congress)

If you pay attention to how people discuss politics online in social media, you might feel your head spinning. Far too many people on left and right are insisting not only that their adversaries are somehow bad for America, but that they’re traitors, or that they’ve committed sedition, or (in the case of the 47 Senators who signed the now-notorious open letter to the leaders of Iran), that they’ve violated the Logan Act. Some also want to call for impeaching Senators or Representatives, and at least one whom I encountered demanded to know why the Attorney General had not yet impeached Senator X.

The following is a pocket guide to why none of these legal devices is appropriate or warranted as a substitute for politics.

TREASON

Consider Article III, section 3 of the Constitution of the United States, the only provision of the Constitution to define a crime against the United States, treason.

“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 Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

The Constitution’s framers made treason the only crime specifically and explicitly defined in the Constitution because they wanted it that way. They knew the sixteenth- and seventeenth-century history of politically-motivated treason trials in England; Tudor and Stuart monarchs used treason charges against their political adversaries, even members of the House of Commons. It was precisely because the framers did not want charges of treason to be bandied about in ordinary political discourse that they set forth this narrow, precise definition of treason, with a narrow, precise standard of proof, and a careful limit of the range of punishment to be imposed on convicted traitors.

Mere words are not treason – only acts can be the basis for prosecuting people for treason. Treason also is a specific-intent crime – meaning that you have to want to commit treason against the United States. Merely acting against the public good on the basis of your own model of the vital interests of the United States – for example, in seeking a government shutdown during a budget crisis – is not treason. In essence, you have to have acted just like Benedict Arnold to be subject to prosecution for treason.

Title 18, U.S. Code, section 2381 codifies in American law the constitutional definition of treason. It has been rarely used. Fortunately, it is hard to bring charges of treason and harder to prove them. One reason is precisely that we don’t want our political enemies going after us for treason, as happened in England centuries ago. That is why, no matter how much we might want to do so, we cannot and should not invoke charges of treason against political foes. First, it violates the Constitution. Second, as Robert Bolt wrote in his play A Man for All Seasons, “Yes, I would give the Devil himself the benefit of law – for my own safety’s sake.”

SEDITION

The same is true for people who want to prosecute the GOP for sedition or for seditious conspiracy. There is a statute misnamed “Seditious Conspiracy,” Title 18, U.S. Code, section 2384, but it punishes conspiracy to commit actual illegal acts against the United States or its government. Mere speech is not enough, because the old common-law crime of sedition is no longer a crime at law in the United States; it was struck down in 1804 by Chancellor James Kent in the New York case People of the State of New York v. Harry Croswell, the last case argued and won by Alexander Hamilton. In 1969, the U.S. Supreme Court decided Brandenburg v. Ohio, a case that took care of state prosecutions for sedition and something called criminal syndicalism. Brandenburg established the rule that government may punish speech only in cases of incitement to “imminent lawless action.”

CONGRESSIONAL IMMUNITY

Further, Article I, section 6, clause 2 of the U.S. Constitution – the “speech and debate” clause – gives absolute immunity to members of the House and Senate for anything they may say in the proceedings of either house. That includes speeches, motions, and everything else that members of Congress may do. Again, the framers wrote this clause into the Constitution precisely because they wanted to give members of Congress the kind of immunity that could protect them from reprisals from political foes controlling the executive or judicial branches. English precedents, again, were the main things that they were seeking to guard against importing here. This immunity would be at least a very strong defense against any attempt to invoke the Logan Act.

LOGAN ACT

In 1799, the Logan Act became law, after a merchant named George Logan sought to intervene in diplomacy between the United States and France, then fighting an undeclared naval war. It banned private citizens from undertaking diplomacy. The Logan Act was never enforced against its namesake, and the only prosecution launched under it started – and fizzled into nothing – in 1803. It has not been invoked for over 200 years, save in careless political talk, and there exists a strong legal argument either that (1) it violates Americans’ First Amendment freedoms and (2) it might be void as a matter of law, under the legal doctrine of “desuetude” – which in essence means that a law that has gone unenforced and even unused for so long has lost whatever legal force it might have had.

IMPEACHMENT

Finally, for those who want so desperately to see their least favorite Representatives and Senators impeached, a few quick points about the use and abuse of impeachment.

Impeachment is a constitutional weapon that can be used against civil officers of the United States, in other words, the President and members of the executive branch, and federal judges. It is not available for use against members of either house of Congress, for two reasons: (1) another clause of the Constitution (again rooted in English precedent) gives each house the sole authority to decide on questions of membership and expulsion and (2) a 1795 precedent, the attempted impeachment for bribery and corruption of Senator William Blount of Tennessee, failed when the Senate rejected jurisdiction over the matter. The Senate instead conducted its own inquiry into the notorious Blount conspiracy, involving massive land speculation and fraud, and expelled Blount from the Senate. He was planning to restart his political career when he suddenly died of natural causes in 1802.

In sum, if you hear someone demanding that a whole political party or its leaders or one of its Representatives or Senators be prosecuted for treason or sedition or anything else for whatever they’ve done as legislators, forget about it. It’s only natural to be upset by the apparent stupidity of members of Congress, or of the whole Congress, but we should not put aside the Constitution or legal precedent to go after them; sometimes retaliation at the polls is the only good way to chastise elected officials.

About the Author

R. B. Bernstein

R. B. Bernstein teaches at City College of New York's Colin Powell School and New York Law School; his books include Thomas Jefferson (2003), The Founding Fathers Reconsidered (2009), the forthcoming The Education of John Adams, and the forthcoming The Founding Fathers: A Very Short Introduction, all from Oxford University Press.

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1 Comment

  1. Some more needed statements of a few home truths we’re in danger of forgetting:

    Our political likes and dislikes do not shape or direct the effects and meaning of American law. In fact, the law exists precisely to RESTRAIN us in seeking to enforce our political likes and dislikes when they run contrary to the rule of law.

    Now, we’re angry at the other side. They’re angry at us. Neither side gets to clear the other from the board just because one side dislikes what the other side believes, says, or does. That’s what charging treason or near-treason is meant to do. We think that we are patriots; they think that they are patriots. If we demonize them, or if they demonize us, the size doing the demonizing damages its ability to think and act politically, to take part effectively in American politics. Let’s not do that to ourselves.

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