Harvard Law School professor Laurence Tribe was forced on Monday to delete suggestions that Fox News host Tucker Carlson and the "Trump wing" of the Republican Party are guilty of treason against the United States.
What did Tribe say?
"Led by Fox News Channel's Tucker Carlson, the GOP's Trump wing appears to be throwing its weight behind [Russian President Vladimir] Putin. If Putin opts to wage war on our ally, Ukraine, such 'aide and comfort' to an 'enemy' would appear to become 'treason' as defined by Article III of the U.S. Constitution," Tribe tweeted Monday morning.
Upon receiving pushback, Tribe claimed he was not using the word "treason" in a literal manner, and said "treason prosecutions should be off the table" because the U.S. is not at war with Russia.
"I'm persuaded by those who thought I meant to be using the word 'treason' literally — despite my use of the phrase 'would appear to be' — that I should've been more careful: Because we're not at war with Russia, treason prosecutions should be off the table," Tribe said. "Sorry if I mislead you."
Carlson's critics have accused him in recent weeks of being a stooge for Russia, and even charged that he promoted pro-Russia propaganda.
In reality, Carlson appears to oppose U.S. intervention in the Ukraine-Russia conflict. Dismissing Russia's aggressive war build-up and opposing U.S. intervention is not, of course, the same thing as being a pawn for the Kremlin.
What about treason?
Tribe's tweets immediately generated backlash online precisely because the Constitution's treason clause is meant to protect individuals from shallow accusations of treason like the one Tribe floated.
Conservative lawyer David French described Tribe's suggestion as "completely false" that is "not even in the same ballpark as the truth"; lawyer Harmeet Dhillon said that Tribe "is often wrong, but rarely is he this risible"; First Amendment lawyer Adam Steinbaugh condemned the suggestion of treason, and instructed Tribe to "please leave these tropes in the past where they belong."
Here is what the Constitution's treason clause in Article III says:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Ironically, the treason clause was designed to protect American citizens from the exact shallow accusations that Tribe put forward.
Constitutional scholars Paul Crane and Deborah Pearlstein explain the treason clause was designed to "guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition. Debate surrounding the Clause at the Constitutional Convention thus focused on ways to narrowly define the offense, and to protect against false or flimsy prosecutions."
Because of the Constitution's high standard for treason convictions — along with increased standards determined by subsequent Supreme Court cases — the federal government has never executed an American citizen for treason under Article III.
However, William Bruce Mumford was executed for treason in 1862 — after he tore down an American flag and replaced it with a Confederate flag — but his execution was carried out under provisions of Martial Law, not the Constitution.