"It's Treason, Then."
Prosecutors interpreting statutes is not new. The first time it occurred in federal prosecution was 1795 when the government had to decide if the Whiskey Insurrection constituted treason.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
*In the District of Minnesota, a grand jury indicted two Canadians and an Iranian for weapons offenses and conspiracy to engage in a murder-for-hire plot. The defendants agreed to kill two Iranian defectors who lived in Maryland at the time.
*In the District of Columbia, the Justice Department charged four Chinese nationals for evading United States sanctions on Iran by exporting US-produced equipment to Hong Kong, then China, then into Iran. These products were used by the Islamic Revolutionary Guard Corps for ballistic missiles and unmanned ariel vehicles.
*In the Southern District of New York, Joshua Shulte received 40 years in prison for disclosing significant quantities of national security information to Wikileaks and for trafficking in child pornography pictures. The former employee of the Center for Cyber Intelligence was found guilty in three separate trials during 2023.
William Rawle and Establishing a Treason Precedent
The Supreme Court’s rejection of broad prosecutorial statutory interpretations constitutes a nearly 40 year trend. Yet this is far from the first time that federal prosecutors have endorsed broad statutory interpretations of federal criminal law. In fact, the earliest federal prosecutors argued for broad statutory interpretations. At that time, however, the courts affirmed the broad statutory interpretation. The first time occurred in 1794 and 1795 when people in western Pennsylvania violently resisted the collection of Alexander Hamilton’s whiskey tax. In several prosecutions that resulted, the government advanced the theory that any use of arms to resist a federal law amounted to treason. Though the matter did not reach the United States Supreme Court, the trial court agreed. Less than ten years later, United States Supreme Court Chief Justice John Marshall used the Whiskey Insurrection cases as precedent in the trial of Aaron Burr. Though using the precedent, he ruled Burr’s conduct did not fall within the meaning of treason.
Alexander Hamilton, as part of his financial plan to pay off the nation’s war debt to France, persuaded Congress to adopt a whiskey tax. The tax only affected the distillers, not the consumers. In the “western” part of the United States, at that time places such as western Pennsylvania, no difference existed between the producers and consumers. Whiskey was like a currency, used as a means of exchange. While they had plenty of whiskey, they had no actual currency to pay the tax. When the tax collectors attempted to collect, they met stringent resistance. Groups gathered in field, planning their resistance. One armed group went to the house that was sheltering the tax collector. In one instance, they engaged the residents in a gun fight. In another they set the house on fire. In a different location, another group robbed a postal carrier in an effort to find out who was reporting on them to the government.
To suppress the resistance, George Washington and Hamilton led an armed militia to Pennsylvania’s western counties. The militia encountered little resistance and they quickly established order. Washington called for Pennsylvania’s federal district court judge and federal prosecutor to travel west to handle the duo sorted those the militia took into custody. They quickly realized that the resistance leaders had escaped. Nonetheless, they found several people they could indict for treason.
The question the government confronted was whether this conduct constituted treason or not. During colonial times, treason was a not a well-defined concept. A century old British law included seven acts within the meaning of treason. These included imagining the king’s death, violating the queen, levying war against the king, adhering to the king’s enemies, killing the king’s treasurer or justices, counterfeiting, or killing one’s husband or one’s master. Many of these carried over to the colonies.
As the rift between Great Britain and its American colonies grew larger, loyalists and the British perceived the colonists as engaged in treason. When the colonists dumped loads of tea into the Boston Harbor, many called for treason prosecutions. For their part, the colonists perceived the loyalists and the British as engaged in treason.
This experience led the Constitution’s drafters defining treason in the Constitution. It was the only crime so defined. Article III, Section 3, defined treason as “consist[ing] only in levying War against the [United States], or in adhering to their Enemies, giving them Aid and Comfort.” Though this limited treason, it did not resolve the ambiguity, as the Whiskey Insurrection prosecutions would reveal.
President Washington recognized, even before sending the militia to put down the resistance, that the conduct might not be treason. As was his custom, he asked each person to provide an opinion. Treasusry Secretary, Alexander Hamilton, had no doubt it was treason. The western Pennsylvanians refusing to pay taxes were resisting his economic plan. He was joined by Attorney General William Bradford, who had only been in the position for six months. Bradford brought a unique perspective, however, as he had served as Pennsylvania’s Attorney General and a justice on the state’s Supreme Court. He dealt with the resistance at the state level. Bradford, in an analysis more detailed that Hamilton’s, explained that combining to resist the law’s enforcement amounted to high treason by levying war. Secretary of State Edmund Randolph, who as Attorney General had been the moderate voice in the Cabinet, was now in the minority as he questioned whether treason was the appropriate charge.
When order had been restored, the government presented the grand jury with 34 treason charges. Of those, the grand jury returned 24 indictments. Thirteen of the people indicted escaped arrest. These were mostly the leading figures. A fourteenth person received amnesty from the Administration. This left ten jury trials. Ultimately, eight were found not guilty and two were convicted. Of the two convicted, the jurors and other citizens sought pardons for the defendants. Though the court agreed with the Administration’s definition of treason, jurors clearly did not agree.
A decade later, the Whiskey Insurrection precdent would play an important part in what is still the nation’s highest profile treason prosection. Former vice-president Aaron Burr gathered soldiers for an alleged expedition to the Louisiana Territory in what seemed to be an effort to establish a separate nation. President Thomas Jefferson quelled the effort before it launched. During Burr’s trial, Supreme Court Chief Justice John Marshall was called upon to resolve whether Burr’s conduct amounted to treason as a matter of law. Marshall favorably cited the Whiskey Insurrection but drew an important distinction between those cases and Burr’s conduct. While the Whiskey Insurrectionists had used violence, Burr had only gathered people without setting foot on the expedition. This, said Marshall, did not constitute treason. Burr was acquitted as a matter of law.
Just like today, in the 1790s, prosecutors had the first say on how to interpret a criminal law. Washington’s and Jefferson’s Administrations both decided, in their collective minds, whether the conduct constituted treason. In doing so, they subjected people ranging from rural western Pennsylvanians to a former vice president to the criminal court process. This alone caused significant hardship. Like today, the courts (plus juries) pushed back, checking prosecutorial discretion.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!