Trump’s Treason Accusations Offer Lesson on Constitution

Few people take the president’s treason accusations seriously. But we don’t talk about treason much at all. This is a good time to see what our Constitution says about treason.

Specifically, treason is covered in Article III, Section 3:

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.

In the blue language, notice the extremely narrow phrasing of treason— levying war against the U.S.! Congress may enact this type of law (and has done so.)

The red language has an interesting history that relates to Trump’s meltdown tweets—for example, the retweet above.  

Taken literally, Trump is suggesting that Democrats as a class or group are guilty of treason.

This type of group crime was fairly common in England from the 1300s-1600s. 

Political enemies of the English Crown would, from time to time, would be subject to bills of attainder—entire families, for example, would be stripped of property, citizenship, and their own royal titles. Many were killed—or deported.

Attainder comes from a root word “attinctura,” which means “stain” (corruption of blood).

And here is the main point of this post: The Constitution is premised on the idea that no groups are guilty of crimes, only individuals can be held accountable. 

In other words, it’s not a crime to be a Democrat, or a Communist (we’ve had those cases), or to turn the tables, a Republican.

Let’s close with an actual example. 

Japanese Americans were forcibly removed from their West Coast homes and sent to internment camps. Sadly, the Supreme Court upheld this action, though two justices dissented. 

Justice Robert Jackson used the “group guilt” concept in rejecting FDR’s military orders, saying:

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.” Article 3, s 3, cl. 2.

But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.

The prohibition against bills of attainder means that no matter how ugly our politics get, the Constitution prohibits Congress from enacting a law that criminalizes the status of political opponents or dissidents.