Lese majesty and whether offending the President is a crime of treason

By Tor Ekeland

President Trump brandishes the word treason like hush money to porn stars. Liberally and carelessly. Treason is one of his favorite words. Whomever he views as a threat he labels as treasonous:  the Ukrainian extortion phone call whistleblower; Speaker of the House Nancy Pelosi; Rep. Adam Schiff; President Obama; the Democrats in general; former FBI Director James Comey; the FBI; the New York Times; and so on. Trump has never used the word as the Framers of the Constitution intended - to describe a crime against our country, not harm against a person, even if that person happens to be the President. The Constitution rejects Trump's usage.

The Constitution narrowly defines the crime of treason in Article III § 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."

This is a narrow definition both substantively and procedurally. Substantively, it's restricted to the waging of war against the United States, or pledging loyalty to, and helping, enemies waging war against the United States. Further, the Supreme Court has limited it over the years, essentially requiring active participation in a war or rebellion against the United States [https://www.heritage.org/constitution/#!/articles/3]. The Treason Clause is procedurally limiting because it requires the testimony of two witnesses to the same overt act (as opposed to two witnesses to two separate acts), or a confession in open court.

No one whom Trump accuses of treason is waging war against the United States, nor are they loyal to anyone who is. Of course, Trump doesn't care about the constitutional definition of treason. It's the emotional impact of the word, its connotation of a threat, its betrayal to the Republic. The goal of Trump's emotional manipulation is to conflate threats to his personal power as threats to the Republic.

This emotionally manipulative use of the word treason has a long history. The Framers were thoroughly familiar with it from their study of the English Crown's treason prosecutions and thus drafted a narrow definition of treason with a high standard of proof. It's a definition that excludes harms to a person, like Trump, who holds a sovereign office; it's restricted to harms against the sovereignty as a whole - our country. Under our Constitution, treason can only be committed against our country, and not a person. The Framers rejected the "lese majesty" notion that harms to a person holding a sovereign office are harms to the sovereignty.

Lese majesty derives from the Latin term "laesa majestas" which means "injured sovereign." William Blackstone traces its origin to laws instituted by the first Roman Emperor, Julius Caesar. Insulting him was Treason. L'etat, c'est moi.

In the United States, the first sentence of the Constitution makes "We the People" sovereign. Not the person who happens to be President. Or Congress. Or the Judiciary. That's why Trump's use of the word treason is un-American and unconstitutional. It regresses to a time and usage that the Framers explicitly rejected when they defined treason in the Constitution. The Framers considered those times, and usage, dangerous to Liberty. When Trump uses the word treason, he's talking about attacks on his person, not attacks on the country. Trump wants us to confuse the two, to foster his own personal power. And it's the demagogue who puts himself first over country, which the Framer's feared most.

Copyright 2019 by Tor Ekeland. All Rights Reserved

Tor Ekeland is a trial and appeals lawyer based in Brooklyn, New York. He's best known for his work defending hackers in federal criminal court.

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