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Old 12th March 2017, 12:02 PM   #1
Undesired Walrus
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Treason, high crimes and the death penalty

Just rewatched the cracking comedy Dave (made in a more simple time).

Led me to think about what degree of non lethal high crime and misdemeanour could end up with the culprit being sentenced to death. In that film two of the main characters commit an unbelievable act of treason by covering up the President is in a vegetative state and hiring an impersonator to pass himself off as the President, so as to avoid the VP being sworn in under the 25th.

Would that lead to the death penalty? If not, what form of high crime that does not involve physical harm to another person could end up with a death sentence?
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Old 12th March 2017, 12:38 PM   #2
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Originally Posted by Undesired Walrus View Post
Just rewatched the cracking comedy Dave (made in a more simple time).

Led me to think about what degree of non lethal high crime and misdemeanour could end up with the culprit being sentenced to death. In that film two of the main characters commit an unbelievable act of treason by covering up the President is in a vegetative state and hiring an impersonator to pass himself off as the President, so as to avoid the VP being sworn in under the 25th.

Would that lead to the death penalty? If not, what form of high crime that does not involve physical harm to another person could end up with a death sentence?
Did they lie under oath in Dave? If not, I'm not sure what law they broke. Pretending to be the President isn't actually a crime. Fraud requires financial gain, which Dave didn't receive.
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Old 12th March 2017, 12:46 PM   #3
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The definition of treason in the USA Constitution is:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

I don't think it would apply here. Interestingly, the term treason would apply applicable to actions taken even by the real president of the USA.
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Old 12th March 2017, 12:53 PM   #4
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Originally Posted by Giordano View Post
The definition of treason in the USA Constitution is:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

I don't think it would apply here. Interestingly, the term treason would apply applicable to actions taken even by the real president of the USA.

I see. What would the punishment be for this action in Dave?

Taking it away from early 90s comedies, what would happen if the President carried out a outrageous act of treason, but it didn't directly involve anyone losing their life. Say, for example, he conspired with someone like Abu Baghdadi and intentionally tipped him off to attacks on ISIS targets ahead of time?


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Old 12th March 2017, 03:40 PM   #5
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Originally Posted by Undesired Walrus View Post
Just rewatched the cracking comedy Dave (made in a more simple time).

Led me to think about what degree of non lethal high crime and misdemeanour could end up with the culprit being sentenced to death. In that film two of the main characters commit an unbelievable act of treason by covering up the President is in a vegetative state and hiring an impersonator to pass himself off as the President, so as to avoid the VP being sworn in under the 25th.

Would that lead to the death penalty? If not, what form of high crime that does not involve physical harm to another person could end up with a death sentence?
I doubt it would be Dave himself would have been in trouble, but the two who got him to do it certainly could have - Dave was only doing it as he had been asked to to keep the country going and I am pretty sure he would be fine. The Langella person is the one who would/should have been hung on the steps of the capitol building!!!
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Old 12th March 2017, 03:41 PM   #6
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Originally Posted by Giordano View Post
The definition of treason in the USA Constitution is:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

I don't think it would apply here. Interestingly, the term treason would apply applicable to actions taken even by the real president of the USA.
Correct!!!
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Old 12th March 2017, 04:17 PM   #7
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"Hail to the Chief
He's the one we all say, 'Hail' to
We all say, 'Hail' because he keeps himself so clean
He's got the power that's why he's in the shower..."

I love Dave
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Old 12th March 2017, 04:34 PM   #8
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I'm not sure why this thread is in Politics.
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Old 12th March 2017, 04:46 PM   #9
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Originally Posted by pgwenthold View Post
"Hail to the Chief
He's the one we all say, 'Hail' to
We all say, 'Hail' because he keeps himself so clean
He's got the power that's why he's in the shower..."

I love Dave
I have watched it often - as did Darlene, we both loved it!!!!!
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Old 12th March 2017, 05:00 PM   #10
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I once caught a fish...this big.

A very fun little movie.
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Old 12th March 2017, 05:10 PM   #11
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Old 12th March 2017, 05:14 PM   #12
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Originally Posted by fuelair View Post
I have watched it often - as did Darlene, we both loved it!!!!!
And remember how that scene ends??? Very sweet movie.

Parenthetically (and weirdly) I followed Frank Langella onto a plane shortly after seeing this movie (he turned around to apologize about his kids taking so long to get into their seats -- that's when I recognized him). I thought he was taller. Every single actor I've seen irl has been like half a foot shorter than I expected.
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Old 12th March 2017, 06:20 PM   #13
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Originally Posted by carrps View Post
And remember how that scene ends??? Very sweet movie.

Parenthetically (and weirdly) I followed Frank Langella onto a plane shortly after seeing this movie (he turned around to apologize about his kids taking so long to get into their seats -- that's when I recognized him). I thought he was taller. Every single actor I've seen irl has been like half a foot shorter than I expected.
Sophia Loren standing in a ditch so Alan Ladd ("Come back, Shane!!!") would appear taller than she did! Given her body I suspect he would not have cared - and indeed would have preferred her not in the ditch!!!!!


ETA, and welcome in!!!!
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Old 12th March 2017, 07:38 PM   #14
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To answer the question, could it merely be fraud?
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Old 12th March 2017, 08:11 PM   #15
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I think it would be covered by this....

18 U.S. Code § 912 - Officer or employee of the United States

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

(June 25, 1948, ch. 645, 62 Stat. 742; Pub. L. 103–322, title XXXIII, § 330016(1)(H), Sept. 13, 1994, 108 Stat. 2147.)
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Old 12th March 2017, 10:13 PM   #16
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Originally Posted by Undesired Walrus View Post
I see. What would the punishment be for this action in Dave?

Taking it away from early 90s comedies, what would happen if the President carried out a outrageous act of treason, but it didn't directly involve anyone losing their life. Say, for example, he conspired with someone like Abu Baghdadi and intentionally tipped him off to attacks on ISIS targets ahead of time?
Then constitutional lawyers start making the big bucks. Typically the courts (and to a lesser degree, Congress) have shown great deference to the President in matters of foreign policy. It is not impossible to imagine him claiming that his actions were in the longer-term interests of the United States. Indeed, as a practical matter it is nearly impossible to imagine this scenario occurring otherwise.

That's just legally, of course. Politically I'd say he was a dead man walking.
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Old 13th March 2017, 05:30 AM   #17
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Originally Posted by Brainster View Post
Then constitutional lawyers start making the big bucks. Typically the courts (and to a lesser degree, Congress) have shown great deference to the President in matters of foreign policy. It is not impossible to imagine him claiming that his actions were in the longer-term interests of the United States. Indeed, as a practical matter it is nearly impossible to imagine this scenario occurring otherwise.

That's just legally, of course. Politically I'd say he was a dead man walking.
In that case I imagine the vice president works out a deal where a pardon is granted for resignation.
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Old 13th March 2017, 06:14 AM   #18
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Originally Posted by Giordano View Post
The definition of treason in the USA Constitution is:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

I don't think it would apply here. Interestingly, the term treason would apply applicable to actions taken even by the real president of the USA.

With the exception of treaties and Congress' power to declare war, it is the president who decides who is an enemy, so it is questionable whether the president's normal behaviors are treasonable absent violations of those two things.

I am reminded of a play in high school football decades ago, where we were supposed to hike on 3, but the center hiked on 1. Nobody else moved. The ref immediately blew his whistle for an illegal motion penalty.

This seemed odd as, although it was an obvious screw up, the fact of the center hiking the ball determines when the play starts, so it can't be an illegal motion.
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Old 13th March 2017, 08:28 AM   #19
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Originally Posted by Beerina View Post
With the exception of treaties and Congress' power to declare war, it is the president who decides who is an enemy, so it is questionable whether the president's normal behaviors are treasonable absent violations of those two things.

I am reminded of a play in high school football decades ago, where we were supposed to hike on 3, but the center hiked on 1. Nobody else moved. The ref immediately blew his whistle for an illegal motion penalty.

This seemed odd as, although it was an obvious screw up, the fact of the center hiking the ball determines when the play starts, so it can't be an illegal motion.
You bring up an interesting point. My understanding is that it is very complex. The President has the right (according to the Supreme Court) to declare someone (even a USA citizen) an "enemy combatant" under a bill passed by Congress after 9/11. The designation appears be strongly linked to the terrorist attack, so I am not clear if tomorrow the President can declare France an enemy and anyone working to advance the sales of fromage in the USA to be an enemy agent, or if the designation must relate specifically to people thought to be involved in terrorism, or even specifically in terrorism by radical Islamic groups.

In regard to the OP, to my knowledge being declared an enemy agent has not be prosecuted as "treason." In fact, quite frighteningly in my opinion, people declared to be enemy combatants by the President can be held in prison indefinitely without any trial at all. Think of it! As I understand it, there is no legal reason Trump cannot declare you (or me) enemy agents this very evening and we could be carted off to jail and kept there with no trial, no access to a lawyer, no communication with our families or friends for the rest of our lives. Fear makes for very dangerous legislation, doesn't it?.

However, conversely I don't think the President can declare someone working for a country for which Congress has declared war to NOT be an enemy. Therefore if war was declared on North Korea, then even a President (as far as I understand it) can be found guilty of treason if proven to be working with North Korean agents. Further, given the courts have determined that the President has the right to declare an American citizen working with Al-Qaeda to be an "enemy agent" then I must presume Al_Queda is legally "an enemy" and a President proven to be working for them would be legally guilty of treason.

Not surprisingly, both the Republicans and the Democrats have generally beeb in favor of greatly strengthening the powers of the President when their guy is in office and only start to consider the risks and dangers when a President from the other political party is elected.

But IANAL and I would be curious what the lawyers on the Forum think.
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Old 13th March 2017, 09:09 AM   #20
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Originally Posted by Undesired Walrus View Post
I see. What would the punishment be for this action in Dave?

Taking it away from early 90s comedies, what would happen if the President carried out a outrageous act of treason, but it didn't directly involve anyone losing their life. Say, for example, he conspired with someone like Abu Baghdadi and intentionally tipped him off to attacks on ISIS targets ahead of time?


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Treason is explicit grounds for impeachment in the Contitution "treason, bribery or other high crimes or misdemeanors" IIRC. As I understand it (from memory of the Watergate scandal), a sitting president cannot generally be prosecuted, but once he is impeached, resigns or his term expires, he's fair game. Nixon avoided this because of Ford's pardon (and what he would probably have been impeached for would be "other high crimes or misdemeanors).
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Old 13th March 2017, 11:54 AM   #21
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Frankly, "High Crimes and Midmeanours",in terms of Impeachment is whatever Congress decides it is. It does not even have to be a actual crime. Andrew Johnson was impeached for firing a cabinent member without the apporoval of Congress.
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Old 14th March 2017, 04:16 AM   #22
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Originally Posted by Undesired Walrus View Post
I see. What would the punishment be for this action in Dave?

Taking it away from early 90s comedies, what would happen if the President carried out a outrageous act of treason, but it didn't directly involve anyone losing their life. Say, for example, he conspired with someone like Abu Baghdadi and intentionally tipped him off to attacks on ISIS targets ahead of time?


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It just wouldn't be considered treason. See Iran-Contra.
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Old 14th March 2017, 05:09 AM   #23
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Originally Posted by Giordano View Post
You bring up an interesting point. My understanding is that it is very complex. The President has the right (according to the Supreme Court) to declare someone (even a USA citizen) an "enemy combatant" under a bill passed by Congress after 9/11. The designation appears be strongly linked to the terrorist attack, so I am not clear if tomorrow the President can declare France an enemy and anyone working to advance the sales of fromage in the USA to be an enemy agent, or if the designation must relate specifically to people thought to be involved in terrorism, or even specifically in terrorism by radical Islamic groups.
What is the difference between France and Yemen? Both are hotbeds of islamist recruitment where terrorists run free. It is only a matter of degree. I used this example in a thread a long time ago, but I think the AUMF authorizes the president to Nuke Paris if desired.
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Old 14th March 2017, 10:17 AM   #24
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Originally Posted by BobTheCoward View Post
What is the difference between France and Yemen? Both are hotbeds of islamist recruitment where terrorists run free. It is only a matter of degree. I used this example in a thread a long time ago, but I think the AUMF authorizes the president to Nuke Paris if desired.
The Food in France is a lot better.
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Old 14th March 2017, 10:24 AM   #25
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Originally Posted by Undesired Walrus View Post
Would that lead to the death penalty?

It should be a capital offense to criticize any Kevin Klein movie.
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Old 19th March 2017, 06:51 AM   #26
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Originally Posted by Undesired Walrus View Post
Just rewatched the cracking comedy Dave (made in a more simple time).

Led me to think about what degree of non lethal high crime and misdemeanour could end up with the culprit being sentenced to death. In that film two of the main characters commit an unbelievable act of treason by covering up the President is in a vegetative state and hiring an impersonator to pass himself off as the President, so as to avoid the VP being sworn in under the 25th.

Would that lead to the death penalty? If not, what form of high crime that does not involve physical harm to another person could end up with a death sentence?

You might get away with such a thing for a few hours or days as long as the VP is really in charge behind the scenes, if there is some international crisis going on where a president swap visual might not be the best thing, like imminent nuclear war.

If the president is unwilling, basically all the other high elected and appointed officials have to gang up on him and then the VP is the acting president, for up to 21 days, then both houses must vote with 2/3 supermajority to kick him permanently. So it's, properly, a monster effort that requires buy in from both parties to accomplish.

But what you describes sounds like a coup, so fry away, comedy aside.
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Old 19th March 2017, 09:07 AM   #27
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Originally Posted by Giordano View Post
The definition of treason in the USA Constitution is:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

I don't think it would apply here. Interestingly, the term treason would apply applicable to actions taken even by the real president of the USA.
Lots of talk about treason lately for some reason. I predict that there is no such thing, at least not within memory. That is because the Constitutional definition, as above, applies to giving aid and comfort to our Enemies. What constitutes an Enemy? Legally and according to the same Constitution, it must be an entity upon which Congress has declared War. And we have not had one of those since 1945.
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Old 20th March 2017, 04:22 PM   #28
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Originally Posted by paiute View Post
Lots of talk about treason lately for some reason. I predict that there is no such thing, at least not within memory. That is because the Constitutional definition, as above, applies to giving aid and comfort to our Enemies. What constitutes an Enemy? Legally and according to the same Constitution, it must be an entity upon which Congress has declared War. And we have not had one of those since 1945.
The exact definition in the Constituion is:

Quote:
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
Maybe I am missing something, but where does it restrict "enemies" to countries that the US is officially at war with?
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Old 20th March 2017, 04:33 PM   #29
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Originally Posted by Undesired Walrus View Post
Just rewatched the cracking comedy Dave (made in a more simple time).

Led me to think about what degree of non lethal high crime and misdemeanour could end up with the culprit being sentenced to death. In that film two of the main characters commit an unbelievable act of treason by covering up the President is in a vegetative state and hiring an impersonator to pass himself off as the President, so as to avoid the VP being sworn in under the 25th.

Would that lead to the death penalty? If not, what form of high crime that does not involve physical harm to another person could end up with a death sentence?
I think what Benedict Arnold did was a degree of Treason that would merit a death penalty. Too bad, because he was America's bravest and most effective General with victories leading armies on land and at sea, and leading Federal Troops, Militia, Indians and British Red Coats (yeah...he even switched sides to British and kept winning as a British General!).

Too bad he switched, or there most certainly would have been state named after him.
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Old 20th March 2017, 04:36 PM   #30
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Originally Posted by Jules Galen View Post
I think what Benedict Arnold did was a degree of Treason that would merit a death penalty. Too bad, because he was America's bravest and most effective General with victories leading armies on land and at sea, and leading Federal Troops, Militia, Indians and British Red Coats (yeah...he even switched sides to British and kept winning as a British General!).

Too bad he switched, or there most certainly would have been state named after him.
One of the major reasons he switched was because he failed to get recognition as others kept claiming his work for themselves and getting the accolades and rewards for what he was doing.
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Old 20th March 2017, 04:49 PM   #31
Jules Galen
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Originally Posted by PhantomWolf View Post
One of the major reasons he switched was because he failed to get recognition as others kept claiming his work for themselves and getting the accolades and rewards for what he was doing.
And there was even more to it than that - and all of came to a head when he felt George Washington betrayed him by reprimanding him for two charges brought against him while he was garrisoned in Philadelphia.. After that...he completely went over to the British.
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Old 20th March 2017, 04:53 PM   #32
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Originally Posted by dudalb View Post
The exact definition in the Constituion is:



Maybe I am missing something, but where does it restrict "enemies" to countries that the US is officially at war with?
Not sure if he's on solid constitutional ground there, but I do note that the crimes committed by the last 6 people convicted of treason against the USA were all during World War II. Julius and Ethel Rosenberg, for example, were not convicted of treason although their actions would certainly seem to qualify.

Most the earlier treason examples are not against the USA per se, but against individual states.
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Old 20th March 2017, 05:16 PM   #33
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Originally Posted by dudalb View Post
The exact definition in the Constituion is:

Maybe I am missing something, but where does it restrict "enemies" to countries that the US is officially at war with?
The definition of enemies is not in the COTUS. However in United States v. Greathouse (Circuit Court, N. D. California 1863) Justice Field wrote:
Quote:
The term 'enemies,' as used in the second clause, according to its settled meaning, at the time the Constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government.
A number of court cases since then have cited this and upheld the definition.

See also:
What Is Giving Aid and Comfort to the Enemy?
Charles Warren, The Yale Law Journal, Vol. 27, No. 3 (Jan., 1918)
https://www.jstor.org/stable/787437

Last edited by paulhutch; 20th March 2017 at 05:19 PM.
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Old 21st March 2017, 03:30 PM   #34
Beerina
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Originally Posted by paulhutch
Originally Posted by dudalb View Post
The exact definition in the Constituion is:

Maybe I am missing something, but where does it restrict "enemies" to countries that the US is officially at war with?
The definition of enemies is not in the COTUS. However in United States v. Greathouse (Circuit Court, N. D. California 1863) Justice Field wrote:
Quote:
The term 'enemies,' as used in the second clause, according to its settled meaning, at the time the Constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government.
A number of court cases since then have cited this and upheld the definition.

See also:
What Is Giving Aid and Comfort to the Enemy?
Charles Warren, The Yale Law Journal, Vol. 27, No. 3 (Jan., 1918)
https://www.jstor.org/stable/787437

Would the subjects in Dave be "rebels in insurrection against their own government"? The above is in a context of the Civil War, such that southern soldiers would not be guilty of treason in that context. From the description of Dave above (which I have not seen) it seems like they have accomplished a successful, if hidden, coup. I cannot see that as falling under the same definition as a soldier in the south, or a bunch of farmers tired of their whiskey tax.
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Old 21st March 2017, 06:29 PM   #35
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Originally Posted by Beerina View Post
Would the subjects in Dave be "rebels in insurrection against their own government"? The above is in a context of the Civil War, such that southern soldiers would not be guilty of treason in that context. From the description of Dave above (which I have not seen) it seems like they have accomplished a successful, if hidden, coup. I cannot see that as falling under the same definition as a soldier in the south, or a bunch of farmers tired of their whiskey tax.
There are two distinct clauses #1:
Quote:
Treason against the United States, shall consist only in levying War against them,
#2:
Quote:
or in adhering to their Enemies, giving them Aid and Comfort.
I don't really remember the movie but I don't think either of the two clauses applies, there was no levying of war and the characters where not giving aid & comfort to an enemy as defined.

For southern soldiers and the whiskey rebellion farmers they were not in violation of the second clause but they were clearly in violation of the first clause. The first clause being applicable is spelled out pretty clearly in the next paragraphs of the 1863 court decision.
Quote:
4. To constitute a “levying of war” within the meaning of the constitutional clause defining treason (Const, art, 3, § 3), there must be an assemblage of persons with force and arms to overthrow the government or resist the laws.
5. If war is levied against the United States, all who aid in its prosecution, whether by open hostilities in the field, or by performing any part in the furtherance of the common object, however minute or however remote from the scene of action are guilty of treason.
6. In treason there are no accessories; all who engage in rebellion at any stage of its existence, or who designedly give to it any species of aid and comfort, in whatever part of the country they may be, are principals in the commission of the crime.
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Old 22nd March 2017, 07:34 AM   #36
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What happened in that movie was not legally treason. Just no. Violated some laws, sure.

The reason the constitution goes out of its way to very narrowly define treason is because under the British Common law the definition of treason was getting pretty broad. The framers wanted to limit it as to what acts are treason (war, helping in war), and against whom treason is committed (The US itself, as opposed to the President or members of congress or whoever).

We use the word broadly in conversation sometimes, but as a matter of law the US definition is quite narrow.
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Old 23rd March 2017, 02:09 PM   #37
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Originally Posted by paulhutch
Originally Posted by Beerina View Post
Would the subjects in Dave be "rebels in insurrection against their own government"? The above is in a context of the Civil War, such that southern soldiers would not be guilty of treason in that context. From the description of Dave above (which I have not seen) it seems like they have accomplished a successful, if hidden, coup. I cannot see that as falling under the same definition as a soldier in the south, or a bunch of farmers tired of their whiskey tax.
There are two distinct clauses #1:
Quote:
Treason against the United States, shall consist only in levying War against them,
#2:
Quote:
or in adhering to their Enemies, giving them Aid and Comfort.
I don't really remember the movie but I don't think either of the two clauses applies, there was no levying of war and the characters where not giving aid & comfort to an enemy as defined.

For southern soldiers and the whiskey rebellion farmers they were not in violation of the second clause but they were clearly in violation of the first clause. The first clause being applicable is spelled out pretty clearly in the next paragraphs of the 1863 court decision.
Quote:
4. To constitute a “levying of war” within the meaning of the constitutional clause defining treason (Const, art, 3, § 3), there must be an assemblage of persons with force and arms to overthrow the government or resist the laws.
5. If war is levied against the United States, all who aid in its prosecution, whether by open hostilities in the field, or by performing any part in the furtherance of the common object, however minute or however remote from the scene of action are guilty of treason.
6. In treason there are no accessories; all who engage in rebellion at any stage of its existence, or who designedly give to it any species of aid and comfort, in whatever part of the country they may be, are principals in the commission of the crime.

I would expect that the force of arms part is not required when a hidden coup has occurred. These are the enemies, so are worse than those who would give them aid and comfort. All that treason presumes some force pushing its way in rather than sneaking its way in. They could also conceivably argue they were using force by wielding the power of the president without authorization, and all such actions were forceful.
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Old 23rd March 2017, 02:13 PM   #38
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Originally Posted by Beerina View Post
I would expect that the force of arms part is not required when a hidden coup has occurred. These are the enemies, so are worse than those who would give them aid and comfort. All that treason presumes some force pushing its way in rather than sneaking its way in. They could also conceivably argue they were using force by wielding the power of the president without authorization, and all such actions were forceful.
Yea, I'm 99% sure that wouldn't fly in court. Judges really don't like lawyers trying to redefine the law.
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