In the annals of American history, Benedict Arnold has held the title of the most infamous traitor. But he is about to be eclipsed by a more devious and consequential seditionist, Donald (“Benedict”) Trump. Such will be the judgment of historians and hopefully a mindful public, if not the current boosters of his autocratic desires.
Arnold served as an extremely successful military officer in the American Continental Army before switching sides to the British in a gambit to land on the winning side and to gain position and authority. He bet on the wrong horse.
Since that infamous act, convictions for sedition and treason, two sides of the same coin with the intent of dissolution or weakening a government, have been rare. This is because merely musing or even threatening to overthrow the government has been protected as free speech.
Past Treason and Sedition Trails and Convictions
Overt actions and convictions that posed a threat to the federal or state governments, and our democracy, are the exceptions, but notable. Here are some historical highlights that help to put Trump’s attempted coup in historical perspective.
While serving as Vice-President, Aaron Burr in 1804 allegedly struck a deal with London ministers promising a large portion of Louisiana as a British protectorate. He was provided a good sum to do so in collusion with co-conspirators – a strange scheme to create his own empire with British help. However, one of his colluders informed president Thomas Jefferson. Tried before the Supreme Court, Burr was acquitted due to the lack of another corroborating witness.
One would think the list would include Jefferson Davis and the generals who led the revolt to end the Union and preserve slavery in the mid-1800s American south. Davis was briefly incarcerated after his surrender. But presidents Lincoln and then Grant famously dissuaded such trials as important for unifying a torn nation, granting general amnesty to confederate soldiers, including Davis and General Robert E. Lee – a salve that in retrospect was probably too generous.
After the slave led revolts of Brown and others, the list of actual convictions rotates around the challenges of World War II, the Cold War, and terrorists in the aftermath of 9/11.
A number of American citizens were convicted of treason for joining the Nazi military machine. On the Pacific front during the world war, Iva Toguri D’Aquino, otherwise known as Tokyo Rose, received a 10-year sentence for “giving aid and comfort” to the enemy. Born in America, her broadcasts from Tokyo during the war sought to demoralize the allies fighting in the Pacific.
There have been convictions related to acts of espionage, for the storming of the Puerto Rico capital by four pro-independence activists in 1954, and for planned acts of terrorism by citizens. Sheikh Omar Abdel-Rahman, an American citizen, and nine followers were convicted in 1995 of seditious conspiracy and other charges in a plot to blow up the United Nations, the FBI building, and two tunnels and a bridge linking New York and New Jersey.
But notably Julius and Ethel Rosenberg were convicted of “conspiracy to commit espionage” for giving state secrets to the Soviets, and Timothy McVeigh who bombed a federal building in Oklahoma City for “domestic terrorism” – not sedition.
I would argue that none of the past convictions of treason and sedition raise to the elaborate scheming and dangers to our democracy posed by a president criminally intent on retaining power, and who took an oath to “preserve, protect and defend” the US Constitution.
What the Law Says
Generally, it takes an egregious action to be charged and convicted of treason or sedition. Three federal laws apply.
Following the Civil War, congress passed an act (18 US Code §2383) entitled Rebellion or Insurrection to punish those who might, for example, seek a coup. “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.”
It is this last clause Democrats hope (and perhaps some closeted Republicans) to invoke in a specific act to prevent Trump from ever running again for public office, leaving any possible prosecution to the Department of Justice (DOJ).
Seditious Conspiracy (18 US Code §2384) is when two or more people “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 . . . “ The penalty is a fine or imprisonment for twenty years or less, or both.
And then there are laws related to Advocating Overthrow of the Government (18 US Code §2385). “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.”
These three laws are all part of the larger federal law Title-18, Chapter 115 “Treason, Sedition, and Subversive Activities.” Legally, treason is limited to those who join the effort of “enemies” of the US, including those who propagate military action against the US. The penalty can be death, or imprisonment and fines.
Treason Versus Sedition
So, there is a difference between treason a la Arnold and sedition a la Trump. But as noted, the villainous intent and desired outcome is largely the same.
Hence my contention of the two being synonymous, and with an increasing expectation that more information on the conspiracy and events leading to and during the January 6 coup attempt will dramatically unfold in the coming months.
Until very recently, federal prosecutors avoided charging the capital rioters, and those who encouraged and abetted them, with sedition. They chose instead to charge some 725 people with the more limited and more easily prosecuted charge of willful interference with a congressional procedure – the consequential final certification by Congress that Joe Biden won the presidential election. This certification was, in the past, a formality.
That changed when 11 members of the paramilitary group the Oath Keepers were charged by the DOJ with sedition – an indicator of the growing evidence of a widespread, orchestrated effort to subvert the 2020 election.
Shortly after, evidence emerged in seven swing states won by Biden that Trump operatives gathered “alternate” electors to the Electoral College – our strange American anachronism as opposed to a popular election -- to replace the duly elected electors with Trump devotees.
Two Major Fronts in Trump’s Attack on Democracy
Here is how that scheme was unfolding: get a number of willing Republican congressmen and senators to claim voter fraud in these and other key states, like Georgia, and then work with favorable Republican state legislators in those states to replace Biden electors with the Trump stalwarts.
They were all ready to go. All they needed was for Vice President Pence to refuse the electors of these states at the January 6 confirmation of Biden’s win. It did not matter if he had the legal authority to do so; the action alone would create chaos.
Hence, the plot had two fronts. The first was a plan to halt or at least seriously delay the confirmation of electors, sending the country into a constitutional crisis. Trump would then claim victory supported by a large contingent of Republican lawmakers, followed by possibly invoking martial law. (America’s top general was worried about some version of this scenario and sought some form of advanced mitigation.)
But prior to January 6, and after weeks of preparation, that scheme seemed in doubt as Pence went into hiding and refused to commit to Trump, bucking a full-court-press campaign from Trump, conservative media talking heads, and apparently some lawmakers.
Failing that scheme, the second front was to disrupt the certification proceedings. At the January 6 “stop the steal” rally, Trump and his minions, including Rudy Giuliani and Donald Jr, talked of taking the country back, that Pence should “do the right thing,” and for a “trial by combat,” before urging the crowd to march to the Capitol steps.
Before and during the Capitol siege, the mob chanted threats of violence, including “hang Mike Pence,” even erecting a seemingly functional gallows, and to “kill” House leader Nancy Pelosi, plus much more.
Criminal Intent – Does it Matter?
Did Trump know, or anticipate, that the crowd, some dressed in paramilitary gear, would enter the capitol with malicious purpose? It seems realistic that that was the expectation, and one assumes Trump would have receive intelligence on this possible scenario, and through his henchman abetted it.
Inciting a riot (itself a federal crime) was the intent. How else to “stop the steal” after Pence indicated he would not do his bidding? Trump’s legal training came from famed lawyer to the mafia, Roy Cohen; like a mafioso, Trump has shown skill in pursuing illegal or questionable activities, but distancing himself from accountability.
But this coup attempt seemingly has two many operatives and moving parts to avoid reasonable clarity of criminal intent. And added to the evolving story of Trump’s coup attempt includes his phone call to the head of elections in Georgia to “find” enough votes for him to win the state; and a wacky scheme for federal agents to seize voting machines in a number of states in the weeks after the election to, seemingly, then insist they were all rigged.
The vulnerabilities of an antiquated US Electoral College system, devised in a time of the horse and buggy and before the telegraph, and a legal and political system that is unable to swiftly uncover what will become known as the supreme act of treasonous sedition (my word combo) in American history, are all exposed in this modern drama.
Curiously, Trump could be charged and convicted of sedition, a felony, and banned from voting in his now home-state of Florida, and then could still shockingly run again for president – unless congress, as noted, gets enough Republicans to invoke the Rebellion or Insurrection Act. That may never happen.
Yet the public unfolding in the coming months of Trump’s two-front effort to make America a banana republic -- with a coup attempt, Neo-Nationalist rhetoric and announced affinity with autocrats throughout the world, the stacking of judges and the like -- seems likely.
Even if the current Congressional inquiry or a future DOJ investigation, including possibly a special prosecutor, does not lead to criminal convictions for the coup leaders, the condemnation of Trump by future historians is assured.
And in this regard, Benedict Arnold’s act has nothing on the egregious damage that “Benedict” Trump has wrought on a nation steeped in the ideals of being a democracy.
John Aubrey Douglass is a Senior Research Fellow and Research Professor - Public Policy and Higher Education at the Center for Studies in Higher Education - Goldman School of Public Policy - UC Berkeley. He is the author most recently of Neo-Nationalism and Universities: Populists, Autocrats and the Future of Higher Education published by Johns Hopkins University Press in paperback and as an Open Access eBook accessible via Project Muse.
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