The Trial of Jefferson Davis and the Treason Controversy

The purpose of this article is to suggest that the Supreme Court, in failing to deliver a holding on the possibility of allegiance abrogation during the Jefferson Davis trial for treason, failed to provide a necessary legal precedent for treason charges and also failed to provide a means of understanding the purpose of the Treason Clause’s inclusion in the Constitution. A holding on this question could have provided much needed guidance for the justice department to prosecute subsequent types of conduct that properly fell under the definition of treason. The absence of this precedent left treason prosecutions susceptible to circumvention, as evidence by the Cramer trial, which all but advocated such a tactic. Ambiguities and inconsistencies in treason law persisted as evidenced by the cases of Ex Parte Quirin, United States v. Rosenberg, and Hamdi v. Rumsfeld. Including Cramer, the Supreme Court has only reviewed the substantive law of treason in three cases to date, and therefore a well-developed, common-law understanding of what constitutes treason has been missing. Currently, an American citizen named Adam Gadahn is indicted in California for aiding Al-Qaeda in propaganda and dissemination of information, both of which provided comfort to enemies of the United States. It is unclear how courts will consider his case based on their recent reluctance to invoke the treason charge. The courts’ movement away from treason prosecutions has resulted in a general disorientation or lack of consensus as to how the historic concept of allegiance fits into our national identity.