August 17, 2017

Sorry, Donald Trump Jr. is Not a Traitor

By Professor Carlton F.W. Larson

[Cross-posted from the Washington Post]

We now know that Donald Trump Jr., a high-level adviser to his father's presidential campaign, attempted to obtain opposition research from the Kremlin. To Trump's opponents, this finally proves explicit collusion between Trump's campaign and the Russian government. Still, it was astonishing to see the defeated candidate for the vice presidency of the United States, Tim Kaine, argue that the son of the incumbent president may have committed treason. He was not the only one to make the allegation, which proliferated on social media; journalists bombarded White House spokeswoman Sarah Huckabee Sanders with questions about "treason."

Assume everything that is being alleged against Donald Trump Jr. is true: that is, he knowingly met with a representative of the Russian government for the purpose of obtaining information, probably illegally obtained, that was harmful to the campaign of Hillary Clinton. Is this treason against the United States?

As a technical legal matter, no, and not even close. Article 3 of the United States Constitution limits the crime of treason to two specific offenses: levying war against the United States, and adhering to their enemies, giving them aid and comfort. It was deliberately crafted to exclude a wide variety of political offenses, such as criticizing the government.

None of the Trump Jr. allegations suggest conduct analogous to levying war against the United States, which generally requires some use of force in an attempt to overthrow the government. Nor does it amount to adhering to the enemy; for purposes of the Treason Clause, an enemy is a foreign nation or group with which the United States is in a state of war, either declared or actual. We are not in a state of war with Russia. In the 1950s, Julius and Ethel Rosenberg were executed for espionage, not treason, because the Soviet Union, although an implacable adversary, was not technically an enemy. We were formally at peace with the Soviet Union then, and we are formally at peace with Russia now.

So for purposes of American treason law, the details of Donald Trump Jr.'s relationship with Russia are irrelevant. He could be a paid foreign agent of Russia; he could take an oath of allegiance to Russia; he could even bug his father's White House bedroom on behalf of Russian intelligence. None of those actions would amount to treason in the narrow sense that our Constitution defines it.

Nonetheless, Trump Jr.'s alleged conduct raises serious questions under other provisions of federal law, all of which will be closely evaluated by Robert Mueller's investigative team. A determination that Trump Jr. did not commit treason is a far cry from finding his actions to be legal. It is against the law, for instance, for U.S. political campaigns to accept anything of value from foreigners.

In a broader sense, though, I understand Kaine's invocation of treason. Coordinating with a foreign government to interfere in American elections is fundamentally wrong, deeply un-American, and, as noted, almost certainly illegal under a variety of federal statutes. In many other countries, this conduct would be obviously treason, no questions asked. Although I am not familiar with the details of Russian law, I have no doubt as to how Vladimir Putin would treat a Russian citizen who coordinated with the CIA to interfere with a Russian election.

American law, however, is different. We have chosen to define treason narrowly, and the body of law dealing with treason is arcane and not always easy to understand. As the U.S. Supreme Court put it in 1945, the Treason Clause's "superficial appearance of clarity and simplicity . . . proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract interpretive generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty."

The upshot is a significant gap in our legal vocabulary. We do not have a good term to describe behavior that is not technically treasonous but nonetheless constitutes a betrayal of the United States. I do not have a good solution to fill this gap, but our political and legal discourse would be improved if we had one. In the meantime, even well-trained lawyers such as Kaine will instinctively reach for the label of treason in circumstances similar to those of Donald Trump Jr.


September 23, 2015

Things You Didn't Know about Magna Carta

The following is a lightly edited version of a short talk I gave on the 800th anniversary of Magna Carta for the September meeting of the Schwartz-Levi Inn of Court at UC Davis School of Law.

Tonight I will be discussing a few of the lesser known aspects of Magna Carta.  I'm sure you're all familiar with the broad outlines; the barons of the realm of England extracting various concessions from King John at Runnymede Field, and I won't rehearse that history in any detail.

Let's start with the words "Magna Carta."  When British Prime Minister David Cameron appeared on the David Letterman show in 2012, he admitted that he wasn't sure how to translate the Latin words Magna Carta.  But he said it with an English accent, so it didn't sound quite as stupid as it would have if an American had said it.  The basic translation, of course, is "Great Charter," but it's important to note that originally the sense of "Magna" as "Great" wasn't "great" in terms of significance but "great" in terms of size.  The document nowhere refers to itself as Magna Carta.  A clerk gave the charter this name a few years later to distinguish it from a smaller document known as the Charter of the Forest.  So the original sense of "Magna Carta/Great Charter" was more "physically big charter" than it was "significant charter."

If we were to go back in time and ask Englishmen in the 17th century when Magna Carta was signed, they would have said 1225.  This year, 2015, would be the 790th anniversary of Magna Carta, according to them.  And the monarch who signed Magna Carta was Henry III, not John.  This seems to be a rather significant discrepancy.

What explains it?  Well, King John immediately asked the pope to declare Magna Carta invalid because he signed under duress, and the pope did so.  After John's unexpected death in 1216, the document was re-issued under the name of John's son, the new boy king Henry III, and it was re-issued again in 1225, when Henry III had reached his majority.  It was this document, with significant deletions from the original, that later generations celebrated as Magna Carta, and in many ways appropriately so, because this was the only document that was of continued legal significance.  The 1215 document was invalid.  Only much more recently have we given more attention to 1215, King John, and the original text.

The text of Magna Carta contains numerous promises from the king to his barons and subjects.  Promises from kings to subjects are great, of course, but the real issue is enforcement.  Magna Carta had a solution, but it wasn't a particularly good one.  It provided for 25 barons to serve as enforcers of Magna Carta against the king.  If the king violated the provisions, the barons "shall distress and injure us in all ways possible - namely, by capturing our castles, lands and possessions and in all ways that they can."  As Harvard Law professor Larry Tribe has argued, "for all that we justly celebrate Magna Carta as the well-spring of the rule of law, its carefully wrought mechanism for legally restraining abuse of royal power was nothing more than institutionalized civil war.  Nothing could more strikingly illustrate the theoretical and practical difficulty of reining in the power of him who reigns."  This provision was not included in the re-issue under the Henry III, and it would take many more centuries before better answers to this problem, other than simply attacking the king, were formulated.

Magna Carta has become far more a symbol of constitutionalism than it ever was originally.  Generations of English and American lawyers have cited it to courts in support of personal liberties.  Indeed, the citations became so frequent that many English courts simply grew frustrated.  Chief Justice Roberts noted recently that if a lawyer is citing Magna Carta, he is probably losing.  This has been true for a while.  In the seventeenth century, a juror complained about the then typical practice of judges fining jurors for verdicts with which the judges disagreed.  When the juror cited Magna Carta, the judge responded, "Magna Carta, Magna Farta."  I challenge anyone to distinguish adverse precedent more concisely.                      

Today is California Admission Day, and the organizers of this program have asked me to connect California's admission to the Union in 1850 to Magna Carta of 1215.  This is not an especially easy task, but here's my best effort.  California's admission was signed into law by President Millard Fillmore.  But Fillmore was not supposed to be president.  He ascended to the presidency when President Zachary Taylor died unexpectedly, under mysterious circumstances, just two months earlier.  President Taylor, in February 1850, had approved the proposed California constitution, concluding that it was republican in form.  And here's the connection.  Zachary Taylor was a direct descendant of King John.  And he's not the only American president who is a direct descendant of King John.  So were Presidents Washington, Jefferson, Madison, John Quincy Adams, both Harrisons, Cleveland, both Roosevelts, Coolidge, Hoover, Nixon, Ford, both Bushes, and Obama.  Three of the four Presidents on Mount Rushmore are grandchildren, many times over, of King John.  So America owes a lot to the loins of King John.

And of course we all know King John was a bad king.  We don't call him John I, but simply John, because he so thoroughly soiled the name that no subsequent English monarch ever adopted it.  It is tempting to speculate that he is the source of our expression "going to the john," but, sadly, I have no evidence to back that up.  But we shouldn't completely dismiss him.  If John had been a model king, there would have been no Magna Carta.  Similarly, if James II had been a good king, there would have been no English Bill of Rights.  And if George III had behaved appropriately, there would have been no American Declaration of Independence or U.S. Constitution.  It brings to mind the old problem in Christian theology about the nature of Judas; without Judas's betrayal of Christ, there would have been no crucifixion and no resurrection.  So shouldn't Judas get at least some credit?  So too, perhaps, with these bad kings.  For every twenty toasts to Magna Carta, we should perhaps raise one to King John, even if he would have privately complained about being forced to sign a "Magna Farta."


April 10, 2012

What if Chief Justice Fred Vinson had not died in 1953?

Cross-posted from SCOTUSblog.

There’s a pretty strong consensus that Chief Justice Fred Vinson was the worst Chief Justice of the twentieth century.  The conventional view goes something like this: Vinson was a bumbling, incompetent political hack, an intellectual lightweight with minimal understanding of complex legal issues, a card-playing crony of Harry Truman who continued to advise Truman even after taking his seat on the Court, a reactionary with horrific instincts in key civil liberties cases, and, worst of all, a major obstacle to unanimity in Brown v. Board of Education.  By this account, the best thing Vinson ever did was to die of a heart attack at precisely the right moment – in the middle of the Brown proceedings in 1953, thus allowing his successor, Chief Justice Earl Warren, to author a unanimous opinion invalidating racial segregation in public schools.

Last spring, Indiana Law Review hosted a symposium on counterfactuals in constitutional history.  Professor Gerard Magliocca assembled a group of constitutional law scholars to explore various “What ifs.”  For this symposium, I asked the question, “What if Fred Vinson had not died of a heart attack in 1953?”  That is, what would have happened to constitutional law and the Supreme Court if Fred Vinson, and not Earl Warren, had presided over the final decision in Brown?

When I started this project, I assumed that Vinson would have dissented in Brown.  Yet my research quickly convinced me that this view was wrong.  Most likely, Vinson would have authored a unanimous opinion in Brown invalidating segregation in public schools.  Vinson, not Warren, would have been the author of one of the Court’s most significant decisions, guaranteeing him instant historical immortality and a place among our nation’s most esteemed Chief Justices.

To be sure, Vinson would not have authored a broad opinion invalidating all racial distinctions and ordering the immediate integration of segregated schools.  But, then, neither did Earl Warren.  The Brown opinion was carefully limited to the facts of public school segregation, and Brown II delayed integration for years, under the “all deliberate speed” formula.  An opinion authored by Vinson would probably have looked similar to the Brown/Brown II duo that emerged from the Warren Court.

Four factors point in the direction of a Vinson-authored unanimous opinion in Brown.  First, Vinson had authored unanimous opinions for the Court in the most important race cases he confronted: Shelley v Kraemer, invalidating judicial enforcement of racially restrictive real estate covenants; Sweatt v. Painter, invalidating racial segregation at the University of Texas School of Law; and McLaurin v. Oklahoma State Regents for Higher Education, invalidating segregation within a graduate program in education.  In Sweatt and McLaurin, Vinson had emphasized the critical socializing role of education.  McLaurin concluded, “There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.”  This principle, although ostensibly confined to graduate education, had obvious implications for segregation at the elementary and secondary level.  Indeed, in conference, Vinson had suggested that graduate education could not be meaningfully distinguished from elementary and secondary education.

Second, Vinson was a steadfast supporter of the policies of the federal government.  In Brown, both the Truman and Eisenhower administrations had urged the court to strike down school segregation.  For Vinson to side against the stated preferences of the federal government, from both Democratic and Republican administrations, would have been decidedly out of character.

Third, Vinson was a fierce anti-Communist, perhaps the most strident anti-Communist to ever serve on the Court.  In numerous filings, the federal government had told the Court that racial segregation undermined America’s struggle against global Communism.  Vinson would have paid careful attention to this argument.  A vote to uphold segregation would hand a massive propaganda victory to Communist forces, something Vinson would do almost anything to avoid.

Fourth, Vinson was close to his friend, former President Harry Truman.  In 1948, Truman had gambled his entire presidency on the issue of civil rights, endorsing a broad civil rights platform and triggering a split with the southern wing of the Democratic Party.  Would Vinson, as Truman’s Chief Justice, really want to be known as the author of an opinion re-enforcing racial segregation?  This, too, seems unlikely.

Although one can never know for sure, it seems more likely than not that Vinson’s survival would have led to a unanimous opinion in Brown similar to the one ultimately authored by Chief Justice Warren.  Under this scenario, it would be impossible to dismiss Vinson as an incompetent failure.  Moreover, Brown would be seen not as the opening salvo of the Warren Court, but as the logical culmination of Vinson’s decisions in a line of unanimous race cases.

On a more whimsical note, the essay also explores what might have happened with subsequent appointments had Vinson not died prematurely.  The key conclusion is that Earl Warren would have been appointed an Associate Justice of the Court to fill the seat left vacant in 1954 by the death of Robert Jackson; Warren, however, would not have been named Chief Justice.  Instead, the most likely successors to Vinson would have been John Marshall Harlan under President Eisenhower or Byron White under President Kennedy.  Neither would have been especially successful as Chief Justice.  Moreover, depending on the timing of Vinson’s subsequent death, decisions such as Miranda v. Arizona could have easily come out the other way.

Earl Warren was so significant a Chief Justice that almost anyone who preceded him would look small in comparison.  Warren’s shadow has contributed greatly to the historical eclipse of Fred Vinson.  But if Vinson had instead been succeeded by a Harlan or a White, presiding over a fractured court and frequently dissenting from the Court’s rulings, Vinson’s Chief Justiceship would suffer little in comparison.  Indeed, his inability to command majorities would seem less of a failing and more like the typical lot of a mid-twentieth century Chief Justice.  With Brown behind him, Vinson might have even been seen as the most significant Chief Justice of the twentieth century.