Capitol Breach Pardoning Rioters
Trump supporters try to break through a police barrier at the Capitol in Washington on Jan. 6, 2021 (AP Photo/Julio Cortez).

The rioters on January 6 couldn’t block certification of Joe Biden’s presidential win, but they succeeded in causing the deaths of five people, delaying the certification for hours, and damaging federal property. To date, 552 people have been charged for participating in the January 6 insurrection—but many of those charges are for committing misdemeanors or minor felonies. Six months after the attack, many in the country are left wondering: Where are the treason charges?

The most serious federal charge brought against anyone involved in the January 6 riot is conspiracy (to commit lesser offenses like obstructing a federal proceeding). The conspiracy charge has been brought against 40 defendants, most of whom have ties to anti-government groups and far right militias. Although calls for charging the rioters with treason began in January, we’ve seen little interest among prosecutors to charge rioters with treason or sedition. Treason indictments would certainly be satisfying for many of us who watched the violence that day and live in fear that our democracy is eroding. But such charges would be problematic legally—and might ultimately cause more harm than good.

Article III Section 3 of the Constitution describes treason as: “levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.” There are two elements to proving treason: the alleged traitor must owe allegiance to the United States government, either as a citizen or a permanent resident, and this person must betray that allegiance by either “levying war” against the government or “giving aid or comfort” to enemies of the government. It’s only slightly easier to charge someone with seditious conspiracy. In that instance, the prosecutor needn’t prove the defendant owed allegiance to the United States, but must still establish that the accused agreed with others to levy violent resistance against the government. As a consequence, treason charges and convictions have been rare in American history, either at the state or the federal level.

Examples do exist from U.S. history that might justify their use now, Carlton F.W. Larson, a law professor at the University of California Davis, wrote last month in the Washington Post. Presidents George Washington and John Adams pursued charging with treason people who participated in tax rebellions (though those charged were pardoned eventually). These cases, Larson noted,  show that the founders did not consider “levying war” to mean only attempts to overthrow the entire US government; any armed action obstructing any United States law would qualify.

World War II produced a half-dozen treason indictments, but all were brought against people alleged to give clear “aid and comfort” to the enemy through active assistance and espionage. The poet Ezra Pound, who broadcasted pro-Axis propaganda from Fascist Italy during the war, was indicted for treason but found (somewhat dubiously) to be insane and was confined at St. Elizabeths Hospital for 13 years. The last time the federal government charged anyone with treason was in 2006, when the American-born Adam Gadahn was charged for “giving aid and comfort” to al-Qaida in recruiting videos. (Gadahn was never tried; he died in an American drone strike on Pakistani territory in 2015).

Treating the January 6 insurrectionists as Washington and Adams treated tax resisters is problematic for a couple of reasons, both of them involving individual presidents. The first is that history has not been especially kind to President Adams’ broad-brush notions about sedition, as codified in the Alien and Sedition Acts of 1798.  The second is that the Jan. 6 insurrection was incited by President Donald Trump.

It wasn’t difficult for Congress to impeach Trump for inciting the riot (though the vote to convict failed on a largely party-line Senate vote). But it would be tricky for prosecutors to argue that the insurrectionists were trying to overthrow the government given that the president encouraged them before the insurrection, was excruciatingly slow to tell them to stop while it was taking place, and refused afterward to condemn them. Republican members of Congress (some of whom may be complicit themselves) protected the rioters after the fact by voting against Trump’s impeachment and refusing to support a congressional investigation of the insurrection. The unfortunate truth is that far right militias and white supremacist groups have been tolerated by the Republican party, and sometimes by the federal government, for decades.

The most indisputable instance of “levying war” against the United States government was the Confederacy. Southern soldiers took up arms against the federal government to secede from the Union. But the Civil War resulted in no treason convictions. Jefferson Davis was briefly charged with treason, but the case was dropped in favor of “unity” and reconciliation.

In the 19th century, Western vigilantism was rewarded and praised as a form of “good lynching.” The Montana Vigilantes lynched not only criminals but also their sheriff. Yet they’re revered to this day as pioneers and heroes; Montana State Police wear a vigilante symbol on their shoulder patches.

Five years ago, the anti-government extremist Ammon Bundy led a monthlong forcible occupation of a federal wildlife refuge in Oregon. Many of the occupiers were charged eventually with federal crimes, but none with treason or sedition. Bundy himself was acquitted and served no jail time. Four years before that, Ammon participated in a standoff with his father Clive Bundy against federal agents in Nevada. None of these actions were found to constitute “levying war” against the United States, and many were excused or dismissed with a slap on the wrist.

It helped Ammon and Clive Bundy a lot that they were white. Baked into American culture, and therefore into American jurisprudence, is the racist idea that white people’s motives can be presumed to line up with American values, whereas the motives of people of color cannot be granted the same indulgence.

Throughout American history, white armed resistors who might have been charged with treason were instead pardoned or given slaps on the wrist, while anyone involved in a slave rebellion was summarily executed, even if no actual violence occurred. In 1822 Denmark Vesey’s plot for a slave rebellion in Charleston was stopped before it got underway. The courts convicted 67 people and executed 35 for conspiring to mount an insurrection. Much of the proceedings were held in secret.

A rare successful federal prosecution for treason was the conviction of Iva Ikuko Toguri, dubbed “Tokyo Rose,” in 1949. Toguri was born in the United States but was the daughter of Japanese immigrants. She visited an ailing relative in Japan in 1941 and became stranded after Pearl Harbor. She ended up broadcasting war propaganda on Japanese radio. Because Toguri refused to renounce her American citizenship (despite pressure from Japanese officials), the American government was able after the war to convict her of treason. Toguri served six years of a 10-year sentence and was released in 1956; two decades later, President Gerald Ford pardoned her after evidence was discovered that witnesses perjured themselves at her trial.

Toguri’s treason conviction was rare;  the racialization of un-American activities was not. The Naturalization Act of 1906 allowed for denaturalization if the accused showed a “bad moral character.” Today that would have to mean criminal activity, but in the early twentieth century it could mean being a socialist, communist, or dissenter against an American war. In the 1920s, such denaturalization proceedings were often used against Jewish immigrants. In 1919 Emma Goldman was denaturalized and deported after spending two years in jail for anti-draft activities.

That same year, six Jewish anarchists brought a case to the Supreme Court challenging their conviction under the Espionage Act of 1917 for distributing pamphlets discouraging registering for the draft. The court upheld their convictions, and four of the five defendants were denaturalized and deported. In 1942, a presumption that Japanese-Americans might give “aid and comfort” to the enemy was used to justify the internment of more than 100,000 Japanese people, most of them American citizens, for the duration of the war. Perhaps the most obvious example of using treason narratives to punish marginalized groups was the anti-Communist crusade of the McCarthy period, which subjected Jews, Black people, and gay people to persecution and sometimes to criminal prosecution,

Charging the rioters from January 6 with treason might be be satisfying, but it would ignore the real causes of that terrible event. White militias and insurgents must be held accountable, but perhaps instead of calling for treason charges, we should call for charges under the Civil War era federal statute punishing “rebellion or insurrection,” defined as an attack on the government by unlawful means.

Insurrection is the appropriate charge for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof.” It addresses only the actions taken, avoiding any muddying consideration—and coddling—of the “values” behind the violence.

Mia Brett

Follow Mia on Twitter @QueenMab87. Mia Brett has a doctorate in history and writes about legal history and current events.