Treason v. Free Speech

By: Cassidy Chansirik and Victoria Pappas

On Wednesday January 6th, Donald Trump supporters stormed the Capitol Building in Washington D.C.

Many people referred to rioters’ actions as “treasonous.” But there is much confusion over but what treason really means and if it actually applies to what transpired at the Capitol.

Here is what you should know about treason, the potential crimes of the Trump supporters, and what potential penalties look like. 

What is treason? 

Treason, as defined by Merriam-Webster, has two definitions: 

1.  the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance… 
2. The betrayal of trust; treachery. 

However, treason is also a federal offense that is not exactly defined in the same way the dictionary defines it. It is actually the only crime that is expressly mentioned in the United States Constitution. 

The “Treason Clause” can be found in Article III of the Constitution. It states: 

“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.”

This clause tends to be split into two parts: levying war and giving an enemy aid and comfort. According to the National Constitution Center, both of these crimes require the intent to commit treason and concrete action. This means a person must consciously want to commit treason and actually do something about it, or take some action to carry out this intent.

Who can be arrested for treason? 

The crime of treason only applies to Americans. That means in order to be arrested for or convicted of treason, a person must be an American citizen.

The Constitution also states that in order to be convicted of treason, two witnesses must give testimony to the act of treason or the person accused confesses in open court. 

According to CBS, there have barely been 30 cases of treason in U.S. history. Additionally, the last time a person was convicted of treason was in 1952. 

In 2006, a man was indicted for treason but died before his trial began. This was the only treason case that occured since 1954. Although treason is a very serious crime, people rarely get arrested for let alone convicted of it.

What is the penalty? 

The Constitution states that Congress has the power to establish the penalty for treason but it cannot “ work corruption of blood, or forfeiture except during the life of the person attainted.”

The National Constitution Center states that “‘Corruption of blood’ is a reference to English common law, which prohibited family members from—among other things—receiving or inheriting property from a person convicted of treason. Under the Constitution, that punishment may not extend beyond the life of the person convicted of treason.”

18 United States Code Section 2381 states that a person who is guilty of treason shall: 

• suffer death or 
• be imprisoned for at least 5 years and fined no less than $10,000 
• And they cannot hold office under the United States

If the President of the United States is found guilty of treason, they can also be impeached. Article II Section 4 of the Constitution states that the President (Vice President and all U.S. Civil Officers) will be impeached upon the conviction of treason, bribery, or other high crimes and misdemeanors.

What constitutes trespassing?

Some are wondering if the Trump loyalists should instead by charged with trespassing. Generally,  trespassing is the “act of knowingly entering another person’s property without permission.” If you have the property owner’s consent, either express or implied, then you are not considered to be trespassing.

Trespassing can be illegal both in civil (tort) and criminal law. The elements of these offenses vary from state to state. Usually, criminal trespassing is a misdemeanor or violation but some states do have felony charges for trespassing. 

There are actually 3 types of trespassing. The one described above is referred to as trespass to land. The other two are: 

• Trespass to the Person (think battery or civil assault, i.e. punching someone)
• Trespass to Chattel. This refers to the intentional interference with someone’s personal property, but does not include land. Personal property can be a car, book, jewelry, etc.     

According to US Legal, there are generally 4 different elements needed in order to prove a tort claim for trespass: 

• an unlawful intrusion or invasion upon a property,
• intent of intrusion, (you do not have to intend to unlawfully trespass; you only have to intend to go onto the property, for whatever reason.)
• force, and
• consequent injury to an owner

Under tort law, there usually has to be some concrete injury or wrongdoing to the owner as a result of the trespass. Merely being on someone’s property without causing injury or without another action will unlikely be considered trespass under tort law. 

What potential crimes might the Trump loyalists be charged with?  

• Under federal law, it is a crime to engage in any “rebellion, or insurrection against the authority of the United States or the laws thereof.”
• Under federal law, engaging in seditious conspiracy is prohibited. Seditious conspiracy is when an individual attempts to overthrow, put down, or destroy by force the U.S. government OR attempts to prevent or delay the execution of any U.S. law. 
• Under federal law, it is also illegal to advocate overthrowing the U.S. government. This includes knowingly or willfully advocating, advising, or teaching overthrowing or destroying the U.S. government by force or violence. It’s important to note that because this statute criminalizes speech, it calls into question the First Amendment. However, the Supreme Court has recognized exceptions to the Amendment, such as “incitement to imminent criminal acts” or “true threats.” 
• It is also illegal to transport a firearm or explosive with the reason or intent to further civil disorder. Given that some loyalists entered the Capitol with firearms, they could also be charged for bringing dangerous weapons into a Federal facility. 
• Damaging federal property is a crime, specifically if the damage exceeds $1,000. Seeing how Trump loyalists were also pictured carrying a lectern from House Speaker Nancy Pelosi’s office, they can be further charged with robbing personal property that belongs to the United States. 
• Furthermore, because Capitol Officer Brian Sicknick died from the riot, prosecutors may consider bringing forth felony murder charges. Typically, an individual is charged with felony murder when engaging in a violent crime that indirectly results in death because of such actions. 

What are potential penalties? 

• For engaging in rebellion or insurrection, the penalty is a fine and up to ten years in prison. 
• For engaging in seditious conspiracy, the penalty is up to twenty years in prison. 
• For advocating overthrow of the government, the penalty is up to twenty years in prison and potentially being stripped of the ability to be employed by the federal government for five years. 
• For transporting a firearm or explosive to further civil disorder, the penalty is up to five years in prison. For bringing dangerous weapons into a Federal facility, the penalty is also up to five years in prison. 
• For damaging federal property, the penalty is up to ten years in prison. For stealing federal property, the penalty is up to fifteen years in prison.
• Because felony murder is categorized as first-degree murder, the penalty is up to life in prison.  

Currently, thirteen individuals have been charged with federal crimes, such as carrying a firearm and ammunition on the grounds of the U.S. Capitol Building.

This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.