Treason and Its Misprision

Robert E. Wright  – September 18, 2021

The U.S. Constitution defines only one criminal act, treason, and does so in such a way as to deliberately restrict its use against political opponents. While it is not easy to convict an American of treason, as recently as 2006 a grand jury indictment for treason came down on an American for participating in al-Qaeda propaganda videos. The accused was killed in a drone strike so we will never know how his prosecution would have gone down. Since the 1950s, though, prosecutors have usually found it easier to prosecute people for other crimes with less stringent evidential requirements.

Article III, Section 3, Clause 1 of the U.S. Constitution reads:

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.

In one of the cases stemming from Aaron Burr’s attempt to carve a new country out of some Western states and territories, called Ex parte Bollman (1807), John Marshall, Chief Justice of the Supreme Court of the United States (SCOTUS), argued that conspiracy alone did not constitute treason. “There must be an actual assembling of men, for the treasonable purpose,” he wrote, “to constitute a levying of war.” The assembly must also try to effect the “treasonable purpose … by force.” During Burr’s trial, Marshall maintained a strict construction of the “two Witnesses to the same overt Act,” virtually ensuring the former vice president’s acquittal.............To Read More...