What exactly is treason? Well that’s an easy one, innit? Treason is when a scheming, disloyal jerk betrays a sacred oath they took to their country, usually in the service of an enemy power or for shallow, partisan, political gains. It’s one of those concepts that everyone intuitively understands, but it gets really thorny when brought under the parsing nuance of the law.
Thus, when 47 members of the Republican-dominated Senate sent “An Open Letter to the Leaders of the Islamic Republic of Iran” (seriously, they used a generic salutation more akin to an editorial in a local newspaper) for the express purpose of undermining the Obama Administration’s ongoing diplomatic nuclear talks with Iran, they probably weren’t concerned about committing treason against the United States (besides, Obama’s from Kenya anyhoo, right?). And while their boneheaded attempt to score political points with their war-happy, right-wing base by giving said knuckle draggers yet another collective, foreign-conflict buzz may or may not constitute treason in a constitutional sense, there’s another conception of treason — the popular conception — that’s played a major role in U.S. history, and 47 GOP senators have skirted this line closer than Cubans in a missile crisis.
As Talking Points Memo notes, the general response to the antics of Tom Cotton (R-Confederacy), Ted Cruz (R-Vichy France), Rand Paul (R-Republic of Judas) and other GOP Senate chuckleheads has been less than glowing — at least outside of the dittohead information bubble. They’ve even inspired the Twitter hashtag #47Traitors. But in addition to being unorthodox and flippant in their blatant attempt to undermine President Obama’s authority, these Upper-Chamber nematodes might have run afoul of the 1799 Logan Act, which states that:
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
Now, granted, the constitutionality of the Logan Act hasn’t been much discussed, and only one person has ever been indicted under it (back in 1803), so it’s unlikely that Tom Cotton will be spending any time in Oz. So while the 47 GOPers who sent the brazen letter to Iran — seemingly without understanding basic facts about what constitutes a nonbinding international arrangement — probably haven’t committed treason in the legal sense, they’ve definitely committed it in the popular sense. In this respect, their antics hark back to the Civil War era, when treason was on every American’s mind. During that conflict, President Abraham Lincoln persecuted perhaps the most famous accused Civil War-era traitor outside of the Confederacy — Ohio Congressman Clement L. Vallandigham — for undermining the presidency during wartime. This case was controversial, to say the least, and while Vallandigham may or not have been a traitor, he definitely laid the groundwork for Senate Republicans to lambaste another lawyer-turned-president from Illinois.
As historian William Blair writes in his book With Malice Toward Some: Treason and Loyalty in the Civil War Era, popular conceptions of treason during the Civil War often failed to meet the legal definition of treason, insofar as it referred to a high-crime against the state. Article III, Section 3 of the Constitution defines treason as “levying war” against the United States or “adhering to their enemies, giving them aid and comfort.” Moreover, to be convicted of treason requires the testimony of two persons who witnessed the “overt act” or a confession before an open court. These provisions were put in place to preserve freedom of speech and individual liberties.* During the war, however, this constitutional check on abuse of power didn’t stop northerners (and southerners, for that matter) from “doing their best to stifle speech that was determined to be offensive to the health of the national state.”* Confederate President Jefferson Davis did this, and so did President Abraham Lincoln, especially in the case of Clement Vallandigham.
Clement L. Vallandigham was a Democratic congressman from Ohio, a member of the so-called “Peace Democrats” faction, or, as they were more popularly labeled, the Copperheads. The Copperheads were anti-abolitionist, and they adamantly opposed Lincoln’s war against the Confederacy and generally supported the South’s right to own slaves. They reaped their greatest support from sections of mid-western states like Ohio, Indiana, and Illinois. Republicans gave them their serpentine nickname, likening the anti-war Democrats to the venomous snake because they (allegedly) represented a sinister internal threat to the Union war effort.
And few Copperheads were more outspoken in their anti-war and pro-slavery views than Vallandigham. During the war he made it his mission to defend the Southern states’ right to secede from the Union, to defend slavery as an unassailable institution, and to excoriate the Republican Party and the Lincoln Administration as brutish agents of unfettered tyranny. In an 1863 speech before the House of Representatives, for example, Vallandigham denounced “the persistent and most vigorous efforts made by this [Lincoln] Administration…to convert the United States into an imperial or despotic government!”* His remarks, however overblown, weren’t entirely illegitimate either. During the war, Lincoln, with the support of Congress, suspended the Writ of Habeas Corpus, putting loyal states under military jurisdiction and legalizing the arrests of seditious persons who spouted “traitorous” speech that might negatively affect support for the war effort (the Confederate government, under the authority of Jefferson Davis, did the same thing).* With the suspension of Habeas Corpus, loud-mouthed rabble-rousers like Vallandigham didn’t stand a chance.
But here’s the rub about Habeas Corpus: Article I, Section 9, Clause 2 of the Constitution states that, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.” In other words, the Constitution says that you can suspend Habeas Corpus to protect “public Safety,” but skimps on the details. Lincoln believed that Copperhead croakers like Vallandigham were, indeed, threats to public safety, and he, along with Congress and the military, acted accordingly.
In April, 1863, Gen. Ambrose Burnside, Commander of the Dept. of Ohio, issued General Order No. 38, which stated that those who expressed sympathy for the Confederacy could be charged with treason under penalty of expulsion or death. Vallandigham, of course, railed incessantly against this order in a series of public speeches, and, for his troubles, Federal authorities arrested him under charges of “declaring disloyal sentiments and opinions.” A military tribunal found the curmudgeonly Copperhead guilty, and he was exiled to Confederate territory. Despite his exile, Vallandigham spent the rest of the war being a thorn in Lincoln’s side. He went to Canada, where he ran for the Ohio governorship in 1863. A year later he returned to the U.S. in violation of military orders, but he wasn’t re-arrested, and he spent his time politicking for Peace Democrats and cavorting with secret societies such as the Sons of Liberty (alias: Order of American Knights) that schemed to covertly (and unrealistically) subvert the Union war effort.
So, was Clement Vallandigham a traitor? Well, yes and no. In terms of the popular conception of Civil War treason, he totally was. William Blair writes that Union officials tackled the thorny problem of seditious behavior via the notion of “expressed or implied” treason, which was rooted in British practice. The purpose of this expanded idea of treason was to skirt the hard legality of the Constitution in order to adapt to the unprecedented — and ever-changing — situation of domestic political and military rebellion. Thus, punishing “expressed or implied” treason had one purpose: “to sanction measures against suspicious individuals without following the letter of the law,” albeit with precedents in international law and the U.S. Constitution’s own vagueness on the suspension of Habeas Corpus.*
In light of this Civil War background, we come back to the #47Traitors in the Republican-dominated Senate. Tom Cotton, Ted Cruz, Rand Paul and the other goobers who sought to undermine President Obama’s negotiations with Iran to score cheap political points (and possibly bring on World War III, but whatever) are acting in classic Vallandigham fashion by expressing a popular “expressed or implied” treason. Like the pugnacious Copperhead Congressman before them, they’re explicitly challenging the authority of an elected President amidst highly sensitive circumstances that involve major issues of peace and war with an enemy power. Moreover, by reaching out directly to Iran’s ruling Mullahs, they’re giving the impression that they’d rather deal with an enemy authoritarian government rather than deal with the elected President of the United Friggin’ States.
This type of behavior isn’t far-removed from the antics of Civil War Copperhead Democrats like Vallandigham, who felt it better to undermine their own President not only on the (justifiable) grounds that he took possibly unconstitutional measures to punish dissent, but also because he was the leader of the Republicans, the opposition political party, and the declared enemy of a southern rebellion founded on the perpetuation of racial slavery. Thus, like the Copperheads before them, the modern GOP doesn’t just view Barack Obama as a member of the opposition party; they also view him as a domestic enemy, so much so that they’re willing to spite the President by appealing to the war fever of Islamic theocrats. But, is this treason in the legal sense? No, it ain’t. And, as enjoyable as it might be to see Ted Cruz exiled to a foreign country (perhaps back to that despotic Hell Hole known as Canada), no one should seriously charge Senate GOPers with treason against the Constitution.
But this doesn’t mean that what the #47Traitors did was anything but sniveling, underhanded, cowardly, and mind-blowingly partisan. If the Civil War-era notion of “expressed or implied” treason is alive and well in the twenty-first century, you can find it within the modern Republican Party, which puts its own authoritarian, conservative political ideology above loyalty to the institutions and protocols of the United States of America.
* See William A. Blair, With Malice Toward Some: Treason and Loyalty in the Civil War Era (Chapel Hill: University of North Carolina Press, 2014), 2, 5, 15, 38, 66-99.
* See Speeches, Arguments, Addresses and Letters of Clement L. Vallandigham (New York: J. Walter and Co., 1864), 424.