06 January 2021

I Dare Call It 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.

U.S. Const. Art. III § 3. Let's see: Thanks to Twitter (and modern media) we've got millions of witnesses to the overt Act of inciting riot and takeover of the United States Capitol (even if later softened by some parties trying to take things back after the overt Acts had already occurred). Lots of Aid and Comfort to Enemies of the United States, too, ranging from Drumpf's statements to Cruz's (presumably willful, and at minimum grossly negligent) misstatements regarding both the Tilden/Hayes fiasco… and dogwhistling of what should be done now, presaged by his stated intent to obstruct… to virtually every member of the Drumpf family in Washington (thus, no "attainder" problems, except perhaps as to his niece — who has a pretty good substantive defense herself!).

Technically, members of the government of the United States probably cannot be found guilty of "levying War against [the United States]" without a simultaneous (or prior) declaration of allegiance to another power. This is one of the problems with an eighteenth-century view of how power is exercised; US media is being obtuse about it. Frankly, we were all obtuse about it by not later than the adoption of the Twenty-Fifth Amendment, when this definition should have been updated to reflect then-present reality… and then-recent fiction; de Groot was underinclusive, as the US demonstrated in 1953. There is no such technical defense for those who are not presently members of the government, though; if you stormed the Capitol, committing overt Acts in furtherance of overthrowing the election result (however much you disagree with it, and acknowledging that election systems are imperfect) on national television, congratulations! You're a proper party defendant!

The underlying moral question, though, is much more difficult. How much moral responsibility do all of us share for electing an overtly sociopathic narcissist in the first place? (We've elected them before; they seldom were as overt.) This comes down to a fundamental misunderstanding of democracy. Democracy isn't just a flag we wave to show our moral superiority to heriditary autocrats (whether called "kings" or "shahs" or anything else), or indeed any other kind of autocrats (Reichskanzler, President-and-Dictator-for-Life, Chairman of the Central Committee, even just plain President or Premier with no intention of ever relinquishing power). Democracy involves doing more than just winning an election and then trampling everyone else; it involves, at its very core, embracing dissent as how we learn to do and be better. (In that sense, it is utterly antithetical to theocracy even more than to aristocracy, but that's for another time.)

Whether I could make the charge of treason stick after today's shameful events, at least as to those most morally culpable, is uncertain. I think it gets past motions to dismiss the charge and proceeds to trial. But their moral culpability — their utter lack of allegiance — is far from uncertain.