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Could Extremists Who Breached The U.S. Capitol Be Charged With Treason?

By Steve Goldstein
Published: Thursday, January 7, 2021 - 1:58pm
Updated: Friday, January 8, 2021 - 9:13am

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U.S. Capitol after January 6 attack
U.S. Department of Homeland Security
Senior Official Performing the Duties of the Deputy Secretary of Homeland Security Ken Cuccinelli tours the U.S. Capitol on Jan. 6, 2020, to survey damage from violent protests earlier in the day.

STEVE GOLDSTEIN: [Wednesday's] events in the nation's capital led to the use of terms from America's past, like sedition, civil war and even treason. That last word is the reason we've asked Arizona Mirror reporter Jeremy Duda to join us for a few minutes. He is the author of the book, "If This Be Treason." Jeremy, good morning.

JEREMY DUDA: Good morning.

GOLDSTEIN: So does this — what we saw yesterday, whether actions or words by the president or actions or words by members of Congress or even the rioters — does treason come into effect here?

DUDA: I think that's a pretty sticky question there. I've seen some takes on both sides. I think that would be, you know, probably the best case you could make woudl be for the actual rioters who literally attacked the Capitol. Now, remember that treason under the Constitution is defined as the relevant part in this case would be levying war against the United States. And I guess the question come down to, is that what they were doing? Do you believe that? Were they trying to overthrow the government? Were they trying to disrupt the execution of the government's laws? There have been cases in the past that would have defined it as treason and would have defined it as not treason. I know, I was reading something this morning from Carlton Larson who's a very well-known legal expert on matter. He feels like it would have been. I think it would probably be very difficult to make that charge stick if it were to be applied to these rioters, to these insurrectionists. I know the term gets thrown around a lot in kind of the more colloquial sense. And in that sense, I know a lot of people very much feel like it's a betrayal of the country. But in terms of the actual crime of treason — remember that even in situations where like Timothy McVeigh, for example — who very much leveed war against United States, bombed a federal buildin — was not charged with treason. There's a lot of other crimes certainly that were committed yesterday. But I I think it would be difficult to make that stick, and I have a very hard time seeing anyone getting charged with that.

GOLDSTEIN: Well, certainly that comes down to prosecution. When prosecutors think about whether they can actually make something stick, that's obviously very important. But in the case of actual spirit versus letter of the law, can you dig in a little bit more on the spirit aspect of that?

DUDA: In terms of the spirit of the law, that's a much different situation. Obviously, that's that's a much more subjective thing. And that was sort the thing — I wrote a book on this very subject and kind of like how far you can push towards that line before you really cross it. And the term —whether it's a betrayal of the country, I think a lot of people are very emotional about that this morning very much believe it was a betrayal of the United States of America — and that sense, certainly one could argue that it was treasonous action. The difference between the more subjective term and the legal term, that could be that could be a very wide gulf there. And if someone wants to apply kind of the colloquial term there, that very well may be applicable.

GOLDSTEIN: And President Trump, even with his words of encouragement not long before the events happened, the fact that maybe he didn't actually take part because people are also throwing the word around — treason — with him as well.

DUDA: I have no idea whether a president could actually be charged with such a thing, how that would actually work. I don't know if the framers of the Constitution ever contemplated such a thing. I mean, again, in terms of the words the law, I can't imagine that would ever be applicable to President Trump in this case. But again, there are millions of Americans today who feel like he's very much betrayed his country and very much betrayed his oath to his country. And if some people view that as treason, I think there's a lot of people who would agree with that.

GOLDSTEIN: Jeremy, one more question. We'll bring it back home to Arizona. Yesterday, House Speaker Rusty Bowers (R-Mesa) and Majority Leader Ben Toma (R-Peoria) issued a statement that said in part, "In America, we respect and honor the fundamental right to expression and protests so long as it is done peacefully. However, the behavior that occurred today at the U.S. Capitol building was anything but. It was despicable and dangerous," etc. And we also have Representative Mark Fincham (Tucson), a very conservative representative, who actually went to the nation's capital. Does this sort of thing increase the rift we've seen with the state GOP, when there's such a dramatic difference on such an important issue like that? Does it affect the legislative session, for example, which starts next week?

DUDA: I think very much so. We've seen this schism kind of break open and just continually widening since Election Day, where you had Fincham — who challenged Bowers for speaker — lost, and now you have at least one of his supporters saying he won't vote for Bowers for speaker, which would be kind of a violation of the way this process has always worked, is that the two parties select their leaders and then the supporters of the losing candidate, they all rally behind the winner from their own party. It definitely seems like this rift is going to play a role in the session, which starts on Monday, even if there's no challenge to Rusty Bauer's speakership or a successful challenge anyway. I think the people who believe the election was stolen — people like Mark Fincham — are going to really push the envelope this session and really try to make their voices heard. And I think you're going to see Speaker Bowers, who's pushed back pretty hard against those folks over the past couple of months, I think you're to see him continue to do that if they really do try to push the issue.

GOLDSTEIN: Yeah. Jeremy Duda, reporter for the Arizona Mirror, also author of "If This Be Treason: The American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal." Jeremy, thanks.

DUDA: Thanks for having me.

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