Such accusations, which would have been shocking under previous presidents, are a go-to move for Trump, who has tweeted treason allegations 12 times this year alone. The president contends that questioning or investigating him or his administration’s practices constitutes one of the United States’ highest crimes.
But Trump’s use of the word “treason” is as reckless and wrong as it is frequent. He fundamentally misunderstands that, under the Constitution, treason requires levying war on the United States or giving aid and comfort to its enemies.
That’s a high bar, as the Founding Fathers, haunted by European despotism, intended it to be. They explicitly rejected a conception of treason more akin to Trump’s, which mimics the understanding of some of the more unhinged English kings who, like him, equated criticism with insurrection.
Resurrecting this broader definition of treason exposes how little Trump understands the differences between the limited power of a president and that of a monarch — differences that are foundational to American democracy.
The charge of treason traces its roots to the monarchy. In England, the first Statute of Treasons in 1351 included a clause against those who “compass or imagine the death of our Lord the king” and his family. While the phrase was meant to cover treasonous thoughts only when accompanied by overt action against the monarch, King Richard II soon got rid of that limitation. The new rule, adopted in 1397, came as Richard was battling intrigues and violently settling old scores.
In that anxious atmosphere, the prospect of a gruesome death (offenders were chopped into four pieces) for errant speech was deadly real. “It is difficult to understand the object of this statute,” wrote historian James Stephen, “unless it was to convert treason into words, or indeed anything whatever which could be considered to indicate in any way hostility to the king.” Richard even made it treasonous to attempt to repeal the new treason law.
Whatever Richard really intended (his mental health at this time is much debated), the new law failed to protect him. He was deposed in 1399 and died, probably by murder, the next year. His successor, Henry IV, reinstated the overt-act requirement for treason because, according to legal historian Matthew Hale, “no man knew how he ought to behave himself, to do, to speak, or say for doubt of such pains of treason.”
But this limitation wouldn’t last. In the 1500s, Henry VIII had laws passed that did away with the overt-act requirement and made it treason to express any words that imagined or expressed “wish, will, or desire” for such harm, as well as words expressing that he was a heretic, usurper, tyrant or schismatic or that deprived him of his “dignity.” The situation at court became so uncertain that the king’s doctors were terrified to declare him ill, lest they be led to the executioner.
As Henry’s failed marriages multiplied and his wives met unpleasant ends, he also used treason laws to keep the populace in line. After he divorced Catherine of Aragon and married Anne Boleyn, it became treason to question his new marriage. And once Anne was parted from her head, it was made treason for anyone to express belief that Henry’s marriages with either Anne or Catherine were lawful or that the offspring from these unions were legitimate. If anyone refused to take an oath to this effect, that was an additional high treason.
These pathological laws were repealed after Henry died, and England returned to the original “compassing or imagining the death of the King” statute from 1351.
But even this more reasonable limitation still left dissenting speech vulnerable. While an overt action was again necessary for a treason charge to stick, that requirement could at times be met with words that spoke of revolt. In 1664, London printer John Twyn was beheaded and quartered for printing an anonymous pamphlet, “A Treatise of the Execution of Justice,” which argued for the king’s accountability to his subjects and the people’s right to revolt if he refused. The book was equated to the levying of war against the king, “as if,” argued the prosecutor, Twyn “had raised an army to do this.”
Not long afterward, an unpublished manuscript, “Discourses Concerning Government,” was enough to precipitate the execution of Algernon Sidney, its author. Though Sidney protested, the judge made clear how risky criticizing the king was: “Curse not the King, not in thy thoughts, not in thy bedchamber, or the birds of the air will carry it.”
Sidney’s ideas survived, however, as the “Discourses,” a classic defense of popular government, was later revered, in the words of historian Caroline Robbins, as the “textbook of the American Revolution.”
Indeed, the Founding Fathers knew this history well, and they explicitly rejected the sort of broad treason law abused by kings. They wrote the Constitution’s treason clause to be narrow and to require at least two witnesses to an “overt act” in support of a declared enemy of the United States. By inserting such limitations, a key point was made: The abuses of English kings in using treason to target dissent had no place in the new republic. Not only was monarchy rejected, but also the tendency of monarchs to deploy the state’s ultimate power — to end the lives of its citizens — for words they didn’t want to hear.
This is not to say that dissent was always welcomed in the new United States. The widespread use of English doctrines like seditious libel against the press and the short-lived Sedition Act of 1798 attest to the willingness of government figures to act against opponents and critics. But treason, the only crime the Constitution specifically defined and the one with the most severe penalty, would remain out of the government’s speech-suppression tool kit.
The Founding Fathers were guarding against a president such as Trump, who mistakes himself for an absolute monarch and has little understanding of how the American president was intended to be different. The Founders explicitly rejected Trump’s vision of the presidency, in which the president is the personification of government and, as such, criticizing him or his administration is tantamount to levying war against the country.
Thankfully, the Founders foresaw that a Trump-like figure might come along. And while he has managed to violate norms and shirk laws without much consequence, his use of treason accusations will, thanks to the Constitution’s explicit terms, remain repugnant slurs and nothing more.