Ever wonder how we get some of the dumb rulings from the bench we get these days? A key to uncovering the bad logic and lawless actions of some of our loonier lawsuits and inane judicial rulings finds a common source: law professors who teach students how to convert their political bias into ludicrous interpretations of the law under the self-deceived guise of “objective” analysis (much like the mainstream media feigns fairness and impartiality). Case in point? The rantings and ravings of Harvard Law Professor Laurence Tribe. Professor Tribe, and other liberals, throw the word “treason” around as it relates to Trump. Tribe and these others apparently don’t even know what treason is, under the law.
Tribe uses his professorial perch at Harvard Law to advise pretend-lawyer Rob Reiner (of “Meathead” fame from All In The Family) on twitter to declare Tribe’s supposed expertise on treason law. Reiner claimed “collusion” between a political campaign and a foreign nation would be “treason.” Tribe answered “Yes, it would be #Treason, @robreiner.” Tribe’s not alone. Michael Moore called for immediate arrests of Trump on grounds of this “treason” claim, saying that Trump colluded with Russia. Just this week, on The View, attorney Sunny Hostin claimed “When I look at this from a prosecutor’s viewpoint, this is treason. This is treason. Treason is putting your enemy before your country” when speaking about links between Trump staffers and Russia. Various liberal lawyers across the landscape mimic the same claims in various social media and news media.
Trump’s “jokes” inviting an adversary to wage cyberwar against the U.S. appear to violate the Logan Act and might even constitute treason.
— Laurence Tribe (@tribelaw) July 28, 2016
Yes, it would be #Treason, @robreiner. It’s too late to mince words on this. Under 72 hrs to appoint independent prosecutor to start probe! https://t.co/NmjrRQ33wK
— Laurence Tribe (@tribelaw) January 17, 2017
@robreiner isn’t overstating. I know it’s > 3AM but only the T word suffices for DT. POTUS & AG must name special prosecutor while they can! https://t.co/gFePkzB3P4
— Laurence Tribe (@tribelaw) January 17, 2017
Treason is a specific crime under the United States Criminal Code, located at section 2381 of Title 18. It makes it a crime to “levy war against” the country, “adhere to” the sworn “enemies” of the country, or “give aid and comfort” to the sworn “enemies” of the country. After misuse of state-analogous treason statutes to try labor leaders in the 1890s, the courts consistently constricted its use to two circumstances: first, violent group action intended to overthrow the government itself; or second, unambiguous aid to a country we are formally declared to be in a state of war with.
In defense of the First Amendment (no, Chuck Todd, NBC does not own the First Amendment as a proprietary property), the Supreme Court limited treason charges to “an armed assembly,” not mere conspiracy nor “mere mental attitudes or expressions.” In defense of the same First Amendment right of advocacy on foreign affairs, no person can be convicted of treason for any advocacy related to our foreign relationships unless we are, at that time, in a formalized, legally declared state of war with that particular country. By the Constitution, only Congress can “declare war.” Congress has not declared war against anyone since 1942. Hence, it is legally impossible to accuse anyone of “treason” for “aiding” Russia when Russia is not a sworn enemy in a declared state of war with the United States.
That’s right, Rob Reiner — opposing Hillary Clinton’s election is not treason. (Instead, some fair-minded conservatives would suggest the only patriotic option was opposition to her). While the old English common law of the era of Kings and Queens protected the dynastic claims of the crown under their treason statute (the Treason Act of 1351 criminalizing as treason anyone who might “compass” or “imagine” the death of “our Lord the King,”) our founding forebears foreswore such loyalty to royalty, and forbid its inclusion in the definition of treason. Queen Hillary, and her would-be courtier, Laurence Tribe, missed their time by about, oh, 300 years.
Dear liberal lawyers — Stop making fools of yourselves and chanting “treason” every time you find your twitter account, your Facebook page, or a news reporter anxious to quote your “expertise” on the “law.”
Robert Barnes is a California -based trial attorney whose practice focuses on tax defense, civil rights and First Amendment law. You can follow him at @Barnes_Law
This is an opinion piece. The views expressed in this article are those of just the author.