That's Not Treason :-(

» KEY POINTS

• Was signing on to a lawsuit to throw out the results of the Presidential Election by disenfranchising over 10 million voters—like 126 members of the House of Representatives did—a betrayal of America?
• Crimes like “treason”, “sedition”, “rebellion”, “insurrection”, and “advocating overthrow” all require an act of violence or asking for violence, which this action did not do.
• Even testing other laws and the Oath of Office, there was nothing illegal or un-Constitutional about attempting to usurp democracy for one’s own personal or party gain.

In one of the most surreal of the lawsuits contesting the results of the 2020 Presidential Election seen by December of that same year, the State of Texas sued four fellow States over their results. While the word “unprecedented” is tossed around to the point of being trite, this one truly was because Texas Attorney General Ken Paxton was trying to disenfranchise the legally cast ballots of over 10 million people. No one else in Mr. Paxton’s office would even sign off on the suit, so he filed it by himself. However, that did not mean he did not gain support and friends.

Please note that Mr. Paxton, according to the Texas Tribune, “has been under indictment for more than five years on securities fraud charges but has yet to stand trial” and is under investigation by the FBI for using “the power of his office to benefit a political donor” after a set of whistleblower complaints.

That support came shortly after he filed his brief directly to the Supreme Court. There, 126 members of the House of Representatives [see the link to view their names] signed on board to try to change the will of the majority—as slim as that majority may have been in some cases—of the people of Georgia, Michigan, Pennsylvania and Wisconsin to Texas’ own. This behavior has been described by many adjectives, none too flattering except by diehard supporters of President Donald Trump who wanted him to rule no matter the reality, consequences, or appearances.

Thankfully, on Friday December 11, 2020 the Supreme Court unanimously rejected hearing the case (although two justices said they would have heard it just because, but Texas and friends would have lost anyway). The main reason they stated was that Texas lacked any standing and could not show in any way that they were harmed. Just because they did not like the candidate the other States chose, it does not mean they were hurt. And even if there was fraud on such a massive scale that it could have changed the results in four States (there was not, just to be VERY clear), the States are responsible for reviewing their own results and those local courts would be the venues to have those fights. Although the Supreme Court did not comment on it, those cases did already happen at the State level and moved up through the federal appeals process, all affirming the results. Whatever small issues there were—and there are always some—none would have made the slightest difference to the statewide and national results.

After this opinion, on Sunday December 13, 2020 Chris Wallace, on his Fox News show, asked one of those 126 their thoughts. Louisiana Representative and House Minority Whip Steve Scalise was unperturbed and unrepentant. Even though Chis Wallace took him to task in an unflattering interview, Mr. Scalise still posted the interview segment on his own YouTube page:

Speech like this and the general sign-off on an attempted—no matter how far-fetched—bloodless coup prompted New Jersey Representative Bill Pascrell to send a letter to House Speaker Nancy Pelosi on the same day as the Supreme Court ruling, stating in part:

I call on you to exercise the power of your offices to evaluate steps you can take to address these constitutional violations this Congress and, if possible, refuse to seat in the 117th Congress any Members-elect seeking to make Donald Trump an unelected dictator.

This would be a wildly extreme response, just as wildly extreme as the original Texas lawsuit was. But did Mr. Pascrell have a point? In his reasoning, Representative Pascrell invoked the 14th Amendment, Clause 2:

No person shall be a Senator or Representative in Congress... shall have engaged in insurrection or rebellion against the same...

Thus, the argument he was making was that by supporting this lawsuit they had committed insurrection or rebellion. That brings up the question of what does “insurrection” and “rebellion” mean? Can “speech” be “insurrection” or “rebellion”? Is the act of using the tools of the system against itself an act against the organism? First, let us turn to U.S. Code, Title 18 § 2383 to see if we can get a clearer definition:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof...

Well, that was no help! Without getting too deep into the various cases, the Courts have made clear that both “insurrection” and “rebellion” require an act of violence or force, or at least asking for violence or force to be used. Therefore, neither Mr. Scalise nor his cohorts would be guilty of that. What, then, about “treason”? After all, that was the argument Mr. Pascrell was making: that these people had betrayed the country.

Treason is the only crime that is written into the original Constitution. By Article 3, Section 3, Clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

And just as before, we also have the law via U.S. Code, Title 18 § 2381:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason...

Both these definitions require either levying war themselves or giving aid to enemies of the United States. Though some enemies may have had indirect benefits due to these actions, one could not make the argument that any member of Congress was giving them aid. Nor could it be said they were making war against the United States. On the contrary, while they attempted to co-opt the United States for their own purposes, they were using the tools that are built into the law and Constitution. No treason had been committed.

Where does that leave us? If it is not “treason”, could it be “sedition”? According to U.S. Code Title 18 § 2384:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof...

Sedition, unlike treason, does require two or more people to be working together in a conspiracy. Here, we do have that. However, once again, the law is actually clear: there must be an “act of force”. Going to the Supreme Court is not an “act of force” because having a judiciary that is equally powerful to the Legislative and Executive Branches is a Constitutional right. That would seem to leave us with only one recourse. Is this “Advocating overthrow of Government”? U.S. Code Title 18 § 2385 provides a definition of that:

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof —

And that is the issue with all of these adjectives that have been used to describe the actions of these members of the House of Representatives: not a single one of them has—by signing on to this case—used or asked others to use force or violence. Yes, some had made implied and outright threats of violence, but not by attaching their names to this fruitless case. Just to rub more salt in the wounds, they were not attempting to “overthrow” the government. In reality, they were looking to take control and create a continuation of government; in other words, they were looking to support, and not remove, the government.

No matter how disingenuous that may be, they had not committed “insurrection”, “rebellion”, “treason”, “sedition”, or “advocating overthrow”. However, there is one last area to consider. Article 6, Clause 3 of the Constitution requires an oath or affirmation be taken to protect the Constitution. U.S. Code Title 5 § 3331 lays out the oath as:

I, [Your Name Here], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Long story short, violation of the oath is a crime and there are punishments for that violation—including fines, removal from office, and imprisonment. U.S. Code Title 5 § 7311 and Title 18 § 1918 lay out the punishments and further expound on what would be a violation. The first couple of clauses are the same as we have seen before; attempting or advocating for overthrowing the government. We know that is not what was done here. But that leaves us Clauses 3 and 4:

(3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or

(4) is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia.

So, had these members of the House of Representatives engaged in a “strike” against the government? Had they refused to perform their duties? In this particular instance, the answer is “no”. Their duty of certifying the results of the Presidential Election had, at that point in time, not yet happened. And even if they voted against certification, that would still be doing their duty. If they refused to show up to debate and vote, it might be a “strike”. But here, acting outside of Congress, they had not committed any crime.

Trying to disenfranchise over 10 million voters may be described using adjectives like:

• Unethical
• Unscrupulous
• Self-serving
• Contemptible
• Reprobate
• Ignoble
• Callous
• Virulent
• Egomaniacal
• Anti-democratic
• Anti-American

That all said, there is nothing illegal or un-Constitutional about attempting to usurp democracy for one’s own personal or Party gain, distasteful as that may be. And the fault for that lies right in the heart of our Constitution itself.

The above piece is an excerpt from Always Divided, Never United: And Other Stories During a Time of Pandemics and Politics by J.P. Prag, available at booksellers worldwide.

Learn more about author J.P. Prag at www.jpprag.com.