Some history lessons for Donald Trump about what constitutes treason under U.S. case law
From 1941 to 1945, Mildred “Axis Sally” Gillars made propaganda recordings and broadcasts for Germany during World War II. In 1949, she was convicted of treason for her work on a phonographic recording of a radio drama “Vision of Invasion” about the heartbreak of US soldiers dying for no reason in a futile attempt to retake Europe from Germany prior to D-Day. Axis Sally can still teach us lessons today including:
1. Treason
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * *” U.S. Const. Art. III, § 3
(See also 18 U.S.C. § 2381.)
“An essential element of the crime of treason is that the one accused must be shown to owe allegiance to the United States. This ingredient of the offense was rested in this case upon citizenship. If appellant was a citizen at the time of the alleged crime the obligation of allegiance was sufficiently proved because such obligation inheres in citizenship.”
2. Verbal Statements May Be Acts Of Aid And Comfort
On appeal, Gillars argued that she only made verbal statements which were protected speech under the First Amendment. The Court rejected this argument, noting that the Supreme Court had found, “There is no question in our mind that words may be an integral part of the commission of the crime if the elements which constitute treason are present; that is, if there is adherence to and the giving of aid and comfort to the enemy by an overt act proved by two witnesses, with intention to betray, though the overt act be committed through speech.”
3. Materials Seized With The Consent Of The Custodian Don’t Violate The 4th Amendment
“From all that appears the obtaining of the records was consented to by the one who had custody of them.” About that storage unit, Paul….
4. Coercion Is A Defense Only When There Is An Immediate Threat Of Harm To One’s Person, And Not To Others Or One’s Property.
“(T)he fear, which the law recognises (sic) as an excuse for the perpetration of an offence, must proceed from an immediate and actual danger threatening the very life of the party. The apprehension of any loss of property, by waste or fire; or even an apprehension of a slight or remote injury to the person, furnish no excuse. * * *”
5. Treason Is Extraterritorial
“’The treason statute, enacted by the first Congress in 1790, supra, condemns the giving to the enemy of “aid and comfort within the United States or elsewhere’. This rebuts any presumption against extra-territorial application of our treason law which might have existed under the general rule. By the statute itself the overt act may be committed outside the United States. Adherence to the enemy and the treasonable intent, when they exist, attach to the act and to its perpetrator wherever he is.” This means it could be committed in Washington, D.C., Singapore, or Helsinki.
The lessons to be learned from the treason conviction of Axis Sally are not without a dose of irony. “There was before the jury evidence from which they could find the following: …the lines of propaganda for broadcast to the citizens and Armed Forces of the United States were that …the President would sell his country to the Russians….” Bruce C. Cohen is the author of the Missouri Defendant’s Procedural Warfare Manual
Bruce C. Cohen is an attorney and the author of Missouri Defendant’s Procedural Warfare Manual. He also writes fiction as Charlie Kenmore and Ken Charles.