Today I read this article on Slate, article link,
The Legal Architects of Trump’s Failed Coup May Finally Face Real Consequences
I'm not a Slate subscriber. I can't afford to subscribe to many of the good (among the plethora of awful) news sources on line, so I could not join the commenters on the article. However, having a law license and some considerable years of experience in case briefing, principles of judicial interpretation, and legal research, I have a little better understanding of the law than some who routinely share their opinions.
Here's what I wish I could have shared:
Do attorneys owe allegiance to the United States and their states of practice? Do actions by January 6 insurrection participants who actually assembled and appeared, armed, to effect by force the unlawful overthrow of legal presidential election results, by their involvement, raise the performance of the parts, however minute, however remote from the scene of the action, by those who were leagued in the general conspiracy, to the level of traitors themselves? Just asking for Chief Justice John Marshall.
You may wonder why I didn't share this on facebook or Twitter, for example. Well, I did join facebook many years before it became super popular. After finding myself with a long list of friends I didn't know at all, mixed in with my family and actual friends and acquaintances, I closed that account.
I hated Twitter's posting character limits, figuring it led to superficial garbage, but I finally joined in 2007. During the past 14 years I logged 88.6K posts. During the past year, Twitter has regularly tagged some of my posts as claimed violations of their rules against targeted abuse and harassment - against criminals! My response was always to just delete the claimed offending post. I did appeal one in which I called for the tar & feathering of Rudy Giuliani, America's fraud, lies spreading, self-promoting mayor.
I am currently suspended for responding to a post regarding Jan 6 criminal conspirators who came copiously armed to the tourist insurrection. I suggested that they could be charged with treason and if found guilty should face the death penalty. I appealed with some general legal references, without getting into a memorandum of law. Twitter rejected my appeal. I can log in, but I can't download an archive of my account. All of my followers are gone.
Just as my timeline reflects evidence of Twitter's failure to suspend accounts that blatantly perpetuate violence, hatred, disinformation, and lies that have led to loss of life, I'll warrant that their algorithms focus on members with low numbers of followers and kowtowing to large influencer actually relevant violations will not age well.
After 14 years and nearly 90,000 tweets, this past year Twitter kept claiming I violated their Rules by targeting people for harassment and abuse. The tweets in question were about Rudy Giuliani's lying and admission that he felt no obligation to say the truth when he was not under oath. Twitter tolerated that shit.
They also tolerated Trump's lying and manipulation of their platform for propaganda and narrative control. Their algorithms would pick me out (primarily because I was a low influencer with only 4,000 followers). I could always find stuff posted by Trump, Giuliani, and other top influencers that incited hatred and violence, but their accounts were never threatened.
In most cases I just deleted the tweets they claimed offended the Rules. They never tell you precisely which rule and exactly why. In one instance in mid June, I challenged their threatened suspension and documented why. I lost that appeal but was not permanently suspended - although every time they threatened that.
This last time I commented on a report that had originally been reported a day or so after the January 6 Capitol attack. A truckload of bombs and arms were found a couple of blocks away. Recently, prosecutors confirmed and found that one of the charged rioters had also carried a gun during the riot. He admitted to it while he was being sentenced.
That led me to do some reading about the crime of treason, 18 USC Ch. 115: TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES. It defines treason:
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 and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
The language of "owing allegiance" and "levies war" are critical. The penalty can be death.
As to who owes allegiance, many people clearly owe allegiance due to an oath. For example, military service persons take an oath of allegiance to the United States, which they serve. Lawyers, when they are sworn in by a judge in the state in which they have applied to the state Bar and have passed the examination and a character and fitness interview, also take such an oath of allegiance in service of both the United States and the state in which they will practice law. There are also substantial legal articles written on the concepts of subjects, citizens, and nationals concluding that all citizens owe allegiance to the United States.
Naturalized citizens all take this oath:
"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."
So, the last question is about what it means to levy war.
Article 3 of the Constitution says,
Treason against the United States, shall consist only in levying War against them, ...
In an 1807 case of treason against two men, Chief Justice John Marshall wrote in his opinion the following:
" It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his county. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war. "
The important thing to keep in mind about Justice Marshall's passage is that he states clearly
"if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose" then ALL those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors."
First, did they have a body of men assembled for the purpose of effecting by force a treasonable purpose? There is no question they were assembled. There is no question the assemblage acted to effect their purpose by the use of force. Was their purpose treasonable?
Their purpose was to disrupt Congress from counting the electoral votes and certifying the results of the presidential election.
That counting and certification is in the Constitution and codified in U.S. statute. What the law says.
The extent of Trump's attempted manipulation to overthrow the legal and not fraudulent election results is now becoming much more clear. Enormous illegal manipulations.
So, a body of men assembled for the purpose of effecting by force a treasonable purpose... constitutes a levying of war.
We know the purpose for which the participants in the January 6 seditious insurrection,
The U.S. Criminal Code, 18 U.S. Code Chapter 115 defines treason, sedition, and subversive activities.
§ 2381 defines treason
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 and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
§ 2382 - Misprision of treason
Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.
§ 2383 - Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
§ 2384 - Seditious conspiracy
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, they shall each be fined under this title or imprisoned not more than twenty years, or both.
§ 2385 - Advocating overthrow of Government
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—
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.
Remember that corporations are persons.
Defined in the Crimes under Chapter 115 -
riot
(a) As used in this chapter, the term “riot” means a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.
All of these are related, but of key importance are the definition of a riot. There is no question whatsoever that the January 6 assemblage was a riot within the definition of the crimes in Chapter 115, Treason, Sedition, and Subversive Activities.
The assembled rioters committed acts of violence that resulted in damage and injury to both property and injury to persons.
Many took up objects and used them as weapons. At least one was carrying a firearm. They had a truckload of bombs and other arms two blocks away.
They acted to put down and overthrow the government of the United States. They opposed by force the existing authority of the United States to prevent, hinder, and delay the execution of the law of the United States, and by force to seize, take, and possess property of the United States.
They openly threatened violence, bodily harm, and death, to elected members of Congress, with the apparent and credible ability to carry out those threats.
Clear relentless attempts to block the execution of the law of the United States and overthrow legitimate election results were treasonable purposes.
Everyone who participated, incited, published, organized, abetted, perpetrated lies, provided financial support, were leagued in the general conspiracy, however minute their acts, or remote from the scene of the January 6 war levied to overthrow the election, are to be considered traitors, and they should seriously face the possibility of the penalty of death.
