I have been trying desperately to avoid commenting on the Republican Convention. The Convention, while certainly having its interesting moments, has demonstrated how a once great political organization – an organization of statesmen, of character, and of the Constitution – can come undone when raw emotion overwhelms reason and prudence. Too many (though not all) in the Party have allowed the gathering to devolve into a display of disgusting and belligerent rhetoric, ignorant slurs, and political thuggery. It’s not just demeaning to their political opponents; it’s demeaning to Republicans. Just ask Ted Cruz.
So I have avoided posting about the details of the last three days. But today brought a story within my wheelhouse that I felt compelled to mention. Consistent with the entire tone of Trump’s new Republican Party of late – that it is not enough to disagree with Hillary Clinton, or even to vote for someone else, but that her opponents must actually spit upon her face every chance they get – one of Trump’s advisors, a veteran, suggested that Clinton be executed for treason by a firing squad. Really. Time has the story here. The Secret Service is apparently investigating.
Normally, I would not comment on this. But I’m working on a treason project now and so I’m giving attention to this stuff. And a veteran should know better. Set aside the outrageous idea of suggesting the official killing of a political opponent. On the legal side, the suggestion repeats a rhetorical theme that I find troubling. Folks bent on this kind of rhetoric tend to throw around the word “treason,” either because they do not know what treason is, or because the intend to use it as an epithet rather than a serious legal claim. But accusing a person of treason, of disloyalty to their country, is a serious charge. For treason is an actual crime, defined by the Constitution and by a federal statute. See 18 U.S.C. 2381.
The Constitution is clear that its definition of treason against the United States is the only one: it requires levying war against the United States, or adhering to their enemies, giving them aid and comfort. It is beyond clear that Clinton’s conduct with respect to the tragedy in Benghazi comes nowhere close to the constitutional definition. In addition, what I call “Adherence Treason” requires proof of intent to betray the United States. Whatever mistakes Clinton made with respect to Benghazi, it is ridiculous to suggest that she made those mistakes with an intent to aid the enemy (and which “enemy” would she have aided, anyway?). And I have seen no evidence for it. See a prior post on these matters here.
Contrary to an apparent belief on the part of this advisor, and perhaps others, the Uniform Code of Military Justice does not define treason (it does define “aiding the enemy,” which contains elements different from treason and lacks the proof requirements). And even if it did, it could not define treason in a way that conflicts with Article III of the Constitution, just as section 2381 does not. As I have said in a previous post, there is strong legal authority for the proposition that treason cannot be alleged in a court-martial, but rather can only be alleged in a civilian court. Moreover, death is not an automatic punishment for treason (nor is it for aiding the enemy). The Constitution gives Congress the power to “declare” the punishment for treason, and Congress has determined that, although the death penalty is available, there is no minimum punishment.
I understand that this advisor served this country with distinction, for which we should be grateful. But upon and during his service, he swore to protect the Constitution. It is perhaps time for him to read it, and give special attention to Article III.