Treason vs Sedition

Today we are examining whether or not officials at the FBI may be guilty of treason, sedition, or other high crimes against the United States. Recently, Andrew McGabe, the former deputy director of the FBI disclosed in his book and in multiple interviews, that he and Rob Rosenstein had discussed ways to deal with Donald Trump in the early days of the administration. During those discussions, they floated the possibility of one wearing a wire, or to recruit members of the cabinet to use the 25^th amendment to remove President Trump from office. The exact details of these conversations are  unclear, but this has already prompted the President and various media outlets to call these actions “treason”.

These conversations took place in the middle of the FBI becoming extremely alarmed by the actions of Donald Trump, who seemed to be oddly involved with Russia. Out of the many concerns the bureau probably had, one that they disturbingly found to be a possibility was that the man who was just elected as President of the United States was, in some way, compromised by the Russians and took orders from them as a result. This is obviously a far-fetched possibility, one that is simply unimaginable and highly improbable. But it is important to step out of a media context and put yourself in the FBI’s position. James Comey earned his law degree in '85, was a US Attorney, Deputy Attorney General, and finally Director of the FBI, over a 15-year period. Andrew McGabe earned his JD in ’93, working in the DOJ and FBI since. Rod Rosenstein earned his JD in ’89, and worked as a US attorney before becoming the Deputy Attorney General in the DOJ. These are only the most involved members, but all were surrounded by highly intelligent, highly trained, career officials who understood the risks and implications of their decisions. The amount of evidence, alarm, and actions that would need to convince them that an investigation would need to be opened into the President is extremely high. What I am trying to convey is that it seems quite unlikely that this is truly a “witch hunt” as the President has tried to characterize it.

However, members of the law enforcement organizations discussing possible ways to remove the President, their boss, is a very serious matter. But are these talks treason or sedition for which they can be charged, found guilty, and punished? I do not think so. Both of these crimes are very specific in their elements and have a common element of undermining the country in some violent or malicious way. Treason is the more straight forward of the two, being defined in the Constitution due to its excessive and flexible use by the King of England before the revolution. Treason is defined as “[l]evying war against the United States or adhering to the enemies of the United States, giving them aid and comfort.” US Const Art 3 § 3. This is a narrow crime that applies to actual violent acts against the country, implied to be only possible during war or through a rebellion. Based on this definition, it seems clear that these officials did not engage in treason or treasonous acts against the United States.

The crime of sedition is more nuanced and has its origins in the firsts Adams administration with the Alien and Sedition act, primarily focused on preventing citizens from criticizing the government during war. But since then, and with the act superseded by later statutes, sedition has been refocused to the area between protest and insurrection. The intent of the law is still focused on “the raising of a commotion . . . or resistance to lawful authority” through “word, deed or writing . . . .” State v. Shepherd, 177 Mo 205, 222, quoting Odgers on Libel and Slander, p. 419. The law particularly stresses the actions against the military or symbols like the flag or the uniform that are “designed and calculated to bring them into contempt . . . .” Ballentine’s Law Dictionary, 2010. This seems clear that the officials were also not engaged in activities that could be justly conveyed to be actions against the military to bring them into contempt. Although the President is the commander in chief, the position has specifically been designed by the constitution to be a civilian and not a member of the military.

Although these two crimes are not able to be used due to technical definitions of the law, is there still a crime here? This is where a difficult balance must be struck. The balance is between the FBI’s duty to defend and protect the United States from all threats, even within the government, and their duty to enforce the laws and respect the chain of command and the democratically elected President. What should these people do if they are thoroughly convinced that the President is a possible threat to the country they are sworn to protect? To their credit, they do not propose a coup or an underhanded way to incapacitate the executive, but a way to convince others in the cabinet to decide to remove the president from power. Is this so different from Mitch McConnell saying on national television that their first priority as the legislator was to deny President Obama a second term?

These officials of the executive branch were designed to last longer than a President’s term, each of them worked in the Justice Department for multiple administrations. Their loyalty is to the country first, and the President second. I believe that these actions were not some treasonous plot, but a true concern by law enforcement officials to conduct an investigation while balancing the interests of the country, and deliberating how, if needed, could they aid in the removal of a potentially dangerous President. As the articles of impeachment or the 25^th amendment allow, there are ways to legally and permissibly remove a President. Before any of that can happen, groups in all parts of government will discuss how to do this.