Defining Sedition Under the Trump Presidency

Episode Notes

Transcript

Lawyer 2 Lawyer

Defining Sedition under the Trump Presidency

01/09/2021

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Intro: Later cases have suggested that it has to be an actual attempt to overthrow the government entirely and not just the operation of one particular law. So, there’s an interesting question here whether what’s going on was trying to overthrow the government completely and you could argue that by seeking to disrupt the certification of a lawful presidential election that that was in fact what they were doing. On the other hand, they could probably argue that they were just trying to disrupt this one thing and they didn’t want to bring the entire government to its knees.

Welcome to the award-winning pod cast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network

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J. Craig Williams: Welcome to Lawyer 2 lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a legal blog named May It Please The Court and have two books out titled How To Get Sued and The Sled. Before we introduce today’s topic, we’d like to take this time to thank our sponsor, LEX Reception. LEX reception is a close-knit team of virtual receptionists dedicated to professionalism warmth and 24/7 availability for law firms and attorneys. Sedition is defined as conduct or speech inciting people to rebel against the authority of a state or monarch. Through the trump presidency, the word sedition has been used rather loosely by both parties to describe various actions that allegedly have crossed certain legal lines. For instance, Attorney General Barr suggested to prosecutors to file sedition charges against violent protesters in wakes of protests across the country. Today on Wednesday, January 6th as we’re recording this, congress is meeting to certify the presidential election results and a number of republican members from the House and Senate are challenging the electoral college results in four states and as we record this, pro-Trump protesters have stormed the U.S. Capitol and the building is currently on lockdown as lawmakers were in the process of certifying those electoral college votes in favor of President-elect Biden.

President Trump is also under fire for a leaked phone conversation this week with Georgia’s Secretary of State where Trump requested that the Secretary of State recalculate and find some 11,780 votes which have prompted democrats to ask FBI Director Ray to open a criminal probe into President Trump. So are any of these actions considered seditious and if so what’s being done about it? To discuss that today on Lawyer 2 Lawyer, we’re going to be talking about sedition as it applies to the actions during the current administration, the legal line between sedition and free speech and defining what is and what isn’t sedition through several examples. To do that, our guest today is Carlton Larson a scholar of American Constitutional Law and Anglo-American legal history from UC Davis School of Law. Professor Larson is one of the nation’s leading authorities on the law of treason and is the author of books: On Treason: A Citizen’s Guide to Law and The Trials of Allegiance: Treason, Juries and the American Revolution. Welcome to the show, Carlton.

Carlton Larson: Thank you. Happy to be here.

J. Craig Williams: Well, it’s certainly an interesting day, we’ve got some activity at the Capitol building, but before we get into that, let’s talk about what actually constitutes sedition?

Carlton Larson: Sure. So, sedition is one of those terms that has a very broad meaning. There’s no actual specific crime called sedition in the United States code. It has been subjects of various acts through American history. I’m sure most lawyers probably remember learning about the Sedition Act of 1918 in their free speech class and of course the Sedition Act of 1798 both of which were directed primarily at utterances that were viewed as distasteful to the government. The closest thing we have right now in federal law is the seditious conspiracy statute which requires some use of force to try to prevent the operation of the laws of the United States.

J. Craig Williams: What’s the difference between sedition and free speech? Certainly, prompting people to overthrow a government and then doing so, are two different things?

Carlton Larson: Yeah. Exactly. And so this was really sort of the birth of free speech jurisprudence in America came out of cases arising from the Sedition Act of 1918 where people essentially argued in various ways that the United States government was doing things incorrectly and they were then prosecuted for sedition and out of that, we kind of got the early descent — the most famous dissent from Justice Holmes in the Abrams case essentially arguing that yes you do have a free speech right to advocate policy changes even you advocate the overthrow of the government and eventually the supreme court came around to that and so our current law is very speech protective and to the extent that you can advocate even the violent overthrow of the government as much as you want so long as it does not create an imminent danger of that happening and it’s not likely that it happened and that’s from the Brandenburg case from 1969.

(00:05:13)

So, much of our free speech law has actually been developed in in opposition to things like sedition acts.

J. Craig Williams: And how does treason slide into the whole equation?

Carlton Larson: So, treason is defined in Article 3 of the constitution and it’s limited to a living war against the United States or adhering to their enemies giving them Eden comfort so that’s actually quite a narrow definition living more essentially limited to armed attempts to overthrow the government and aiding enemies — you know is aiding foreign groups in time of war. So, treason is a relatively narrow part of our national security legal framework and so to the extent that sedition laws have existed, they’ve tended to sort of patch holes that the treason law would leave open, there’s lots of ways you can undermine the country even quite significantly without actually committing treason so we have laws for example and espionage as well that catch some of those things that treason law doesn’t.

J. Craig Williams: Right. And you wrote an article about whether it was seditious to plot to possibly harm Michigan Governor Gretchen Whitmer. What’s your thoughts about whether that constitutes sedition?

Carlton Larson: So, there’s an argument that under Michigan State Law that the people who plotted to do that if they had carried it out might have committed the crime of treason against the State of Michigan by levying war against the State of Michigan that is that they that attempt to use armed force in an act that would try to change the government and policies of Michigan. So, they actually done it I think they might have even been subject to a state treason charge. Now, since they didn’t do it, they were subject — it was only a conspiracy then they couldn’t be charged it would only be conspiracy to levy war and historically that hasn’t been treated the same as treason. I don’t know whether Michigan has a separate state sedition law that would reach something like this. Clearly, there’s plenty of other criminal laws that can come into play when something like that happens and so often in these cases, you will see prosecutors, you maybe take a look at treason or seditious conspiracy. Would ultimately conclude that it’s simply cleaner to go with some other offense. I mean a conspiracy to commit a kidnapping whether it’s the governor or anybody else is still a very serious crime.

J. Craig Williams: Well, our own AG Barr suggested to prosecutors to file sedition charges against certain violent protesters. Is that an appropriate suggestion or is that really in the free speech area?

Carlton Larson: Well, there’s no certainly no free speech right to engage in violent protests. I mean, there’s no free speech right to damage a government building or to try to take it over and so the literal language of the seditious conspiracy statute which says by force to seize take or possess any property of the United States contrary to the authority thereof that would seem to literally apply so it’s not outside the realm of legal plausibility to suggest that statute might come into play. Other statutes are of course ones that can be used as well so I don’t think he meant it as saying that they should be prosecuted for what they believed, but arguably for what they did.

J. Craig Williams: Right. Well, we have the instance today where there are armed protesters who have stormed the Capitol building, there have been allegations that they’ve planted explosives in the Capitol building and attempted to what appears to be takeover a portion of the government. What’s your thoughts about that where does that fit in our discussion?

Carlton Larson: It’s really quite extraordinary. I’ve had all kinds of questions about treason during the Trump years. I never really thought I would get to the point where we’d be asking this one but here it is. I do think the protesters pretty clearly committed a seditious conspiracy. Again, there’s language from the statute proposing by force the execution of any law of the United States. They’re clearly obstructing the electoral account act and disrupting the actions of congress so I think at minimum they could easily be charged with seditious conspiracy. There’s a possibility that they may have even committed treason by levying war against the United States. Certainly, that’s how the framers(ph) I think of Article 3 would have viewed it. They prosecuted people for armed insurrections that sought to disrupt the application of a particular law. George Washington’s administration protested The Whiskey Rebels and John Adams’ administration protested the Fries Rebels and these were people who would use force to try to resist federal tax law. So, I think it’s pretty clear if this had happened in the late 1700s early 1800s that it would have been prosecuted as an act of treason for levying war against the United States. Now later cases have suggested that it has to be an actual attempt to overthrow the government entirely and not just the operation of one particular law.

(00:10:12)

So, there’s an interesting question here whether what’s going on with trying to overthrow the government completely and you could argue that by seeking to disrupt the certification of a lawful presidential election that that was in fact what they were doing. On the other hand, they could probably argue that they were just trying to disrupt this one thing and they didn’t want to bring the entire government to its knees so my guess is we would not see federal prosecutors bringing that charge. There’s also the two eye witnesses problem which is a requirement for treason prosecutions that you have two witnesses the same overt act and that might be an issue in these in these Capitol cases.

J. Craig Williams: Two witnesses?

Carlton Larson: Yeah. So, Article 3 says for a treason conviction, you have to have two witnesses to the same overt act meaning you have to have two people who have essentially witnessed it in person and a recording of them doing it so even if they’re caught on video is probably not going to be sufficient.

J. Craig Williams: Interesting issue. Well, how far does this seditious and the conspiracy to commit sedition stretch? I mean, we have tweets by President Trump encouraging wild protests today.

Carlton Larson: Yeah. That presents a difficult issue because again I think the free speech issues come into play and the issue would be whether Trump basically incited imminent violence in a situation which it was likely to result in violence and I think one could probably argue that both ways — I mean, he didn’t only specifically use the words storm the Capitol so that would probably be a bit of a defense on his side on the other hand in the circumstances sort of an armed mob and you’re encouraging them to at least get very close to doing something unlawful and you’re in a position to be very influential as a President of the United States. It certainly comes close but my guess is at the end of the day, a court would find there probably were free speech protections but it would depend again precisely on what he said and I try not to listen to the president all that much so I didn’t hear his exact words this morning.

J. Craig Williams: I can understand your reluctance. How far does the seditious act stretch? I mean, does it step into the congress and encompass the members of the House of Representatives and the senators who are expressing their election to what has been so far completely certified or is that falling within the immunities and the other kinds of issues that they may have?

Carlton Larson: Well, I think it certainly falls within many of the immunities and Members of Congress but even if it didn’t, I don’t think one could plausibly argue that those people had committed some type of sedition as a criminal matter. I mean, there’s a right to under federal statutory law to protest a state’s electoral count and if it was done as it was seems to be in this case in sort of tremendous bad faith that in itself is not a crime so I understand why people sort of reached for this word sedition to describe those Members of Congress, but there really is quite a big difference between objecting to an electoral certification and storming the Capitol with a gun that crossover into violence seems to really be what our current statutes are focused on.

J. Craig Williams: And there’s also been a lot of conversation about not seating certain representatives because of their views. Is that plausible?

Carlton Larson: I mean, it has been done in the past. There were I think expulsion of members in the civil war for supporting the south. Refusal deceit has had a sort of a more tortured history and there is some supreme court case law on that, I think in general, it’s a pretty bad idea to refuse deceit members of congress who have been duly elected. I understand the temptation here which was that they were if they’re challenging the presidential election how could they not also be challenging their own election but I think on balance it’s better not to play into that game.

J. Craig Williams: Certainly understandable. Well, before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsor. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Carlton Larson scholar of American Constitutional Law and Anglo-American legal history from the UC Davis School of Law. We’ve been talking about the issues of sedition and treason. One of the things that’s come up this week it just seems like it’s been a plethora of news. President Trump is under fire for calling Georgia’s Secretary of State and presumably pressuring him into recalculating and finding votes sufficient for him to win. Where does that fall on this spectrum?

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Carlton Larson: It’s one of those things where you try to think of all the awful things the president could do and write them up in a criminal code and you could never begin to scratch the surface of some of the things Trump has done. I don’t think it fits clearly into any federal law dealing with issues of treason or sedition. It may fit into federal law dealing with conduct of elections and it may well violate Georgia Election Law. There’s potentially some free speech issues that may come into play there as well and I’m not totally up to speed on how the first amendment has been fleshed out in that context but it does seem like there’s at least potential liability under Georgia Law and that the Georgia Prosecutors may be starting to take a look at that.

J. Craig Williams: And we’ve had a couple of representatives who’ve asked for the institution of a Federal Bureau of Investigation look into it and I think that there’s been some noise about the secretaries or the prosecutor in Georgia taking some steps so it’s certainly something that we’re going to be looking at. We’ve also heard that President Trump may invoke martial law and attempt to reverse the 2020 election. There has been a number of past secretaries of defense and generals and so forth who have staunchly come out against that. Where are we with that situation?

Carlton Larson: That strikes me as extraordinarily implausible. There seems to be zero justification for any indication of martial law. The military leaders have made very clear the military has no role in American elections and I don’t think Members of Congress would stand for that. I mean, with Trump who knows I mean he could potentially try to do almost anything but that strikes me as a fairly far-fetched scenario.

J. Craig Williams: Let’s take a look back at the history of sedition. I think I read in one of your articles that it’s been more than 100 years since anyone has been prosecuted for it. How is sedition itself prosecuted if it’s not a specific crime?

Carlton Larson: Well, it’s generally — as well as not. I guess is the short answer and the only part of the federal law that would really apply would be 18 USC Section 2384 which is the seditious conspiracy statute.

J. Craig Williams: And there’s a distinction between federal law and state law on these points, right?

Carlton Larson: Yeah. So, states are free to have their own laws on this.

J. Craig Williams: In the present situation that we have with the people in congress being locked down in the Capitol building, are we considering that to be something that is a state — how does that play in the District of Columbia?

Carlton Larson: Certainly, being offense both I think under federal law and probably under District of Columbia law as well so imagine they could be indicted both in DS Superior Court as well as the U.S. District Court. I don’t know when you have potentially both charges arising out of the same course of events how the DC Courts have dealt with that.

J. Craig Williams: In the context of the original framers how has sedition been viewed, has it been more of an act against as it was in England? Is that where we derived this law from?

Carlton Larson: Yes. I mean, under English law there was the crime of seditious libel which was the crime of criticizing the government and it was really quite a pernicious law because if you were charged with it, you had to prove that what you said was true and it wasn’t the prosecution’s burden to prove that it was false. It was viewed as sort of libelous per se and then the burden shifted to you and most bizarrely truth was not a defense. So, if you argued well yes the government official was as rotten as I claimed they were and I can prove it that wasn’t sufficient and when the Sedition Act of 1798 was enacted here in the United States, we got rid of some of those worst features of English sedition law so the supporters of it said we’re actually liberalizing things compared to English law and so this is more favorable to free speech but for critics that still wasn’t enough that at the end of the day what you’re still doing is criticizing the government and putting people in jail for that indeed a Congressman Matthew Lyon was one of the people convicted he was actually reelected to congress from his jail cell in Vermont. He was a fascinating character, he got into a fight with another Member of Congress where he spit in the in the members face and the member then attacked him with tongs from the house fireplace. So, violence is not completely unknown to the floor of the United States house.

J. Craig Williams: No, certainly not the first time. It’s been there – it was there in the American revolution and again during the civil war. How did the civil war play into the definitions of sedition and treason?

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Carlton Larson: So, during the civil war, there was essentially a new statute enacted which essentially is currently under US code called Rebellion or Insurrection and it says whoever in sight sets on foot assists or engage in any rebellion or insurrection against the authority of the United States with laws thereof or gives aid or comfort thereto shall be fined or imprisoned for not more than 10 years. So, essentially it was a sort of a lesser form of punishment than treason which was a capital crime and so that was something that was occasionally used during the civil war. The big issue with respect to the civil war was when it was over whether to prosecute the leaders of the confederacy for treason and so Jefferson Davis actually was indicted but his case eventually fizzled out and he received a pardon from President Johnson.

J. Craig Williams: Let’s talk a little bit about that type of prosecution. There have been significant calls for President Trump’s prosecution after he leaves office. I mean, we’ve done a segment on it ourselves. How does the prosecution of a president play into history and what really are the considerations that we need to be thinking about?

Carlton Larson: Well, I think there’s two big issues that inform this and in some ways they point in different directions and so getting the balance right can be tricky and the first is the basic proposition that no one is above the law and if the president commits a crime that he or she should be accountable in the same way as any other citizen this is certainly true with respect to pre-presidential crime so I think it also applies to crimes committed while one was the president and the impeachment clause is very clear that even if you’re impeached afterwards, you’re still subject to prosecution for crimes that you might have committed and if we say well you don’t get prosecuted because you’re the president, we’re essentially saying the presidency is a license to commit crime and that can’t be correct in a nation committed to the rule of law at the same time, you really don’t want to criminalize what might be simply political disagreements I mean we don’t want to live in a country where every change of administration the prior president is then prosecuted for crimes and that becomes a big remit for the new president is to go investigate the old regime and see what crimes they may have committed and hopefully send them to jail and that happens in other countries and those usually aren’t countries that we admire. So, one has to be very careful that what you’re investigating is in fact real crime and not just carrying out a political vengeance and so getting that right because is going to be enormously important.

J. Craig Williams: Well, you’ve laid our — your second book is really about treason that brings up the story to the present day. It kind of went through a very complicated background of it. Where do you come out on this?

Carlton Larson: I’m not sure and that’s probably because I feel I don’t have access to all of the relevant data as to what crimes would be considered for prosecution, what the witness testimony would look like, what the likelihood of conviction would be and i think it’s very hard to say in the abstract yes there should be prosecutions for this that or for something else. I certainly wouldn’t rule them out as a general matter Because i do think that so the level of criminality in this president has really exceeded that of any other president by significant margin.

J. Craig Williams: It has been an amazing ride. Would it be better for us on the other hand to pass laws to circumscribe the president’s behavior and rein in some of the far beyond the bounds of formal president behavior?

Carlton Larson: Well, I think there’s certainly places where the statutes could be improved and where we could more clearly limit certain areas of presidential discretion. The difficulty someone like Trump has posed is that you just can’t imagine ahead of time all the ways in which the laws might be perverted ordinary discretion completely abused and you also don’t want to hamstring future presidents who do need some degree of power to carry out their responsibilities and so it’s hard to think of how precisely you can avoid some of this very, very bad behavior.

J. Craig Williams: Well, treason certainly is a capital offense, one of the worst violations of American law and it’s been used pretty liberally for the last four years. I think you commented yourself it’s been bandied about so many times. You know, it’s just about time for us to wrap up and get your final thoughts along with your contact information so I’d like to give you this opportunity to take the floor.

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Carlton Larson: Okay. Sure. Well, if you’re interested in learning more about treason, my book is On Treason: A Citizen’s Guide to the Law and it’s written for non-lawyers but also I think for lawyers as well who find a lot in here is not a subject anybody studied in law school and so I think that is interesting, a lot of fun stories from American history and my first book; The Trials of Allegiance: Treason, Juries and the American Revolution is about how treason was prosecuted during the revolution including the strategies of the lawyers undertook in selecting juries and conducting the trial so I think it’s a book that many lawyers will find of interest and if you want to learn more about either the books, my website carltonlarson.com.

J. Craig Williams: Well, thank you very much, Carlton for being on the show today, it’s been a pleasure.

Carlton Larson: Well, thank you. I enjoyed it very much.

J. Craig Williams: I really enjoyed your quote that said you’d much prefer to live in a world where the question of treason doesn’t arise.

Carlton Larson: That’s right and hopefully we’ll be there soon.

J. Craig Williams: Good. Well, for our listeners if you’ve liked what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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