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Guess I struck a nerve with my last column. I think I set a new personal record for hate mail (and fan mail too, thanks very much for that). At any rate, I figured I’d slow it down a bit this week with the totally noncontroversial subject of suggesting that several sitting senators may have committed a capital offense.
Federal and state governments have only ever brought about 40 treason cases since our Constitution was ratified in 1789. That’s not a lot, but it still averages out to about one every six years, more than you might expect for a crime that is a national event every time it is committed.
The last person convicted of treason in the United States was Tomoya Kawakita, who was sentenced to death in 1952 for his abuse of American prisoners of war in Japan during World War II (he was later deported by the Kennedy administration). Before that, Americans convicted of treason ran the gamut, from devoted abolitionist John Brown, who was convicted of treason against the Commonwealth of Virginia and hanged in 1859 for leading an armed rebellion (he was, actually sort of heroically, trying to start a slave revolt), to William Bruce Mumford, who was hanged for treason in 1862 after removing an American flag from a mint building in New Orleans (harsh, right?). Both Missouri and Illinois charged founder of Mormonism Joseph Smith with treason, but it was a rougher form of justice that ultimately got him: an angry mob stormed the jail Smith was being held at in 1844 and killed him.
Today, treason isn’t thought of as much as a serious crime as it is as an insult to hurl liberally at political opponents. Yet, treason is in the U.S. Constitution, and is similarly defined in most state constitutions:
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.
U.S. Const. art. III, § 3, cl. 1.
Under federal statutes, whoever is guilty of treason “shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.” (18 U.S.C. § 2381). So, in addition to a wide range of behavior being considered treasonous over the years, there’s a wide range of potential penalties, although it’s that last one that really interests me in the present context.
On February 4, Republican Senator Richard Burr, chairman of the Senate Intelligence Committee, gathered with several other lawmakers to hear reports from intelligence officials about how foreign nations were responding to the budding coronavirus health crisis. In the following days, Burr sat through a number of additional committee sessions focused on coronavirus, including an update on February 12, the same day the Dow hit its last record high. On February 13, when President Donald Trump and Burr himself were still publicly downplaying the coronavirus threat, Burr sold off 33 stock holdings worth between $628,000 and $1.7 million, including significant positions in businesses like hotel companies whose stocks were particularly ravaged just a few days later. Four other senators (three Republicans and one Democrat) mirrored Burr’s timing with significant stock sell-offs, although unlike Burr, these other senators said they do not personally manage their own portfolios and were unaware of the sales. However, in pretty much the definition of “suspicious,” GOP Senator Kelly Loeffler, whose husband Jeffrey Sprecher is chairman of the New York Stock Exchange, took some of the proceeds of her pre-crash stock dump and put them into shares of telework company Citrix. Citrix shares have since increased by about 15 percent now that everyone is on coronavirus lockdown working from home.
Burr is now facing an investor lawsuit, and he and the others are reportedly the subject of a joint probe from the Justice Department and the SEC. Burr has denied wrongdoing, and also asked for a Senate Ethics Committee investigation. New legislation has even been introduced to ban members of Congress from trading individual stocks entirely. But maybe that’s not enough.
Our president, among others, has been quite explicit about his view on the nature of the struggle we’re in against COVID-19. “It’s a war,” Trump said at a recent White House press conference. And perhaps it is. It seems Burr used the information afforded by his position to take resources out of the hands of hard-hit American businesses at a time when they needed investment the most, so he could profit at the expense of those businesses and other American investors. He adhered to the enemy we currently face. Coronavirus, and the economic collapse associated with it, aren’t conventional national threats. But conventional or not, they’re very real, and are more dire than anything we have faced in recent memory. What Burr and the others did, in a small way, made these threats worse. It was disloyal to the national spirit we all owe our society during this fight. We need to demand better from our lawmakers. And an official censure isn’t going to cut it.
Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
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