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18 USC §2381 Treason.
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and 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 USC §2383 Rebellion or insurrection.
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

In light of Seattle City Councilmember Kshama Sawant's recent speech given on 7/7/20 (see 2:33:00 to 2:34:04)

"For those watching from outside Seattle, don't let anyone tell you in your fight to tax big business in your city that you're being divisive, because class struggle is what gets the goods. The private, for profit housing market has utterly failed working people. Not just here and now, but everywhere and always. Because capitalism is completely incapable of meeting the most basic needs of working people.
Internationally, the working class needs to take the top 500 corporations into democratic public ownership, run by workers, in the interest of human need and the environment, not billionaire greed.
I have a message for Jeff Bezos and his class. If you attempt again to overturn the Amazon tax, working people will go all out in the thousands to defeat you.
And we will not stop there. Because you see, we are fighting for far more than this tax. We are preparing the ground for a different kind of society. And if you, Jeff Bezos, want to drive that process forward, by lashing out against us, in our modest demands, then so be it. Because we are coming for you and your rotten system. We are coming to dismantle this deeply oppressive, racist, sexist, violent, utterly bankrupt system of capitalism. This police state. We can not, and will not, stop until we overthrow it and replace it with a world based instead on solidarity, genuine democracy, and equality. A socialist world. Thank you.

(Transcribed from given link)

Do her words, especially "we cannot or will not stop" until we "dismantle," "overthrow," and "replace" this "police state" with a "Socialist World" rise to the level of violating 18 USC §2381 and/or 18 USC §2383?

Just a guy
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Mike Kady
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    To the existing answers I would add that the criminal penalties established by Title 18, including disqualification to hold office, may only be imposed by a court after conviction. I also wonder whether "office under the United States" includes state and municipal offices. – phoog Jul 09 '20 at 11:31
  • Is there a transcript of the video you can post here? – user253751 Jul 09 '20 at 16:17
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    That would entail rounding up every presidential candidate in recent memory, since they all campaign on "taking our country back" from whoever is currently in power. – jeffronicus Jul 09 '20 at 16:24
  • @phoog under the United States. It doesn't mention any state office. But since it's obviously a felony, a conviction would be disqualifying in the state of Washington according to this article. – grovkin Jul 09 '20 at 18:20
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Jul 10 '20 at 00:03

2 Answers2

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TL; DNR: No. Charging the Councilwoman under §2383 for making a speech would violate the First Amendment, and "levying war" in the §2381 means actually fighting, not conspiring to fight.

18 USC §2383 Since §2383 is a statute, it must conform to the Constitution. To charge Sawant for what she said in a speech would violate the 1st Amendment, which says, "Congress shall make no law...abridging the freedom of speech..."

Even without the First Amendment problems, §2383 would not apply. The words "rebellion and insurrection" in §2383 are usually read to mean real violence, not vague words that may or may not involve violence. Not even Cliven Bundy, the Nevada rancher who has had several armed standoffs with the government, was charged under §2383.

18 USC §2381 Since §2381 is based on Art. 3, §3, the Treason Clause of the Constitution, the First Amendment does not apply to it. Following the Treason Clause, §2381 has two prongs. To be guilty of treason, one must either:

a) Levy war against the United States; or

b) Adhere to its enemies.

"Enemies" has been interpreted to mean enemies in a real war, so the second prong does not apply.

Since Sawant is not actually levying war against the United States, §2381 can only apply to her if it covers a conspiracy to levy war against the United States. The Supreme Court decided it did not in 1807, in Ex Parte Bollman. Bollman was charged with conspiring with Aaron Burr to carve a new country out of the US. The Court ordered Bollman released. In his opinion, John Marshall explained why:

However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses.

Marshall’s narrow reading of the Treason Clause was consistent with the views of the Founders. In Federalist 43, James Madison explained that in the past, “violent factions” had often used “new-fangled and artificial" definitions of treason to “wreck their alternate malignity on each other…” To keep from repeating this sorry history, the Constitution “opposed a barrier to this peculiar danger,” by defining what constituted treason and specifying how it was to be proved.

Just a guy
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    Re: "real war". Given that Cuba has no peace treaty with the US and that North Korea is still technically in a state of war with the US, and that the stated goal of the Communist Party is to overthrow the capitalist system, wouldn't this (at least theoretically) rise to the level of aiding parties waging a war on the US? – grovkin Jul 09 '20 at 18:13
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    No. Which party is the Communist Party? The WPK, takes the Stalinist line about "establishing socialism in one country." Thus, its "Ten Principles for the Establishment of a Monolithic Ideological System," say nothing about overthrowing the capitalist system. Who thinks we are at war with Cuba? – Just a guy Jul 09 '20 at 18:58
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    The US and North Korea are not technically in a state of war. The US never declared war. North Korea and South Korea are technically in a state of war. – SnakeDoc Jul 09 '20 at 19:05
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    @Justaguy "which Communist Party" argument might as well be "which hezbollah" argument. This is a site for people to learn about the law. You are trying to argue facts. Questions of fact are decided by juries. – grovkin Jul 09 '20 at 19:16
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    There is only one Hezbollah. There are many communist parties. After reading your comment, I was not clear which of these communist parties you were referring to. I still do not know. – Just a guy Jul 09 '20 at 19:31
  • I wasn't talking about any communist party. I was talking about the Communist Party. Small-c "communist" and capital-C "Communist" are different words. – grovkin Jul 10 '20 at 01:06
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    @grovkin But which one? Cuba has one, China has one, North Korea has one, even America has one. While they may not be the sharpest tools in the shed, I don't think there's any reasonable argument that the Communist Party USA is currently waging war against the United States, for example. – reirab Jul 10 '20 at 06:51
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    Capitalism is not the USA, and the USA is not (solely) capitalism, McCarthyism notwithstanding. –  Jul 10 '20 at 07:08
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    @SnakeDoc ignoring the weak connection this question has to North Korea in the first place, South Korea still has a mutual defense treaty with the US. Inasfar as anything substantive continues in that war, North Korea's role still surely amounts to that of an enemy. If they attack anything on South Korean soil there's a reasonable chance they hit at least something supplied by the US, if not US military personnel stationed there. – Will Jul 10 '20 at 08:14
  • Aren't there also sovereign immunity laws which make it very hard to prosecute politicians for anything they say or do as part of exercising their elected office? – Philipp Jul 10 '20 at 14:32
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    Sovereign immunity applies to governments, not to individual politicians. Art. 1, § 6, the Speech and Debate Clause, says "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." This was already in the Constitution when the 1st Amendment was added. It does not apply to members of the Seattle City Council; the 1st Amendment now does. – Just a guy Jul 10 '20 at 16:33
  • Advocating to overthrow the US or any subject government of same is a crime under 18 USC 2385, although it isn't treason it also isn't fully protected by the First Amendment. That said, the standard in Brandenburg would certainly exclude the speech by the councilor quoted in the OP, since it doesn't incite lawless action. – IllusiveBrian Jul 10 '20 at 17:12
  • @Will yes, but that doesn't mean the US is at War. That's a pretty formal thing, and hasn't been done since WWII. The lines get blurry at times, but it would be a "Military Action". – SnakeDoc Jul 10 '20 at 17:18
  • @SnakeDoc the US doesn't have to be at war to have enemies "in a real war" someone may adhere to – Will Jul 11 '20 at 01:28
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    @grovkin Kshama didn’t say “communist party”. Didn’t even say “communist”. You have a long chain of incredibly weak links from European socialism, to communism, to a communist Party, to a foreign communist party, to some sort of sedition, to full-on treason. That is not gonna happen. – Harper - Reinstate Monica Jul 11 '20 at 02:31
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    In a similar vein, it isn’t treason against the United States to talk about overthrowing some other institution. Kshama talked about overthrowing “the police state”, which is not the United States. – Harper - Reinstate Monica Jul 11 '20 at 02:35
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    Returning from the long ill-founded tangent to the answer: Note that the Founders were not worried solely about what might happen in the future. There was at the time an already centuries-long history of abuses of what is called "constructive treason" to look back upon and desire to avoid. The central legal point that the answer should mention is the idea of an "overt act". Interestingly, as pointed out by many commentaries, even English law did not regard words only spoken as an overt act unless they met or exceeded a "traitorous purpose actually on foot" bar. – JdeBP Jul 11 '20 at 08:50
  • @JdeBP unfortunately a lot of the comments have been moved to discussion, but the short of it is that the utterance forced a context on the said politicians deeds. Since nothing can be learned about the nature of those deeds from the question, we don't really know if the law in question applies. However, the utterance (by putting a context on the deeds) made it more likely that that law did apply. – grovkin Jul 11 '20 at 17:05
  • @JdeBP Thanks. You are right, I carelessly changed the tense when I edited that snippet from the Federalist. I changed it back. I am not sure "overt acts" gets us as much as you do, so I will have to think about that point. – Just a guy Jul 11 '20 at 19:23
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No. Setting aside hyperbole, it is perfectly legal to "overthrow" the US government (and arguably even the Constitution), provided it is done in a legal manner. Overthrowing the government or even the Constitution need not use violence. Every four-year election cycle could theoretically overthrow the whole government, and every Constitutional Amendment partially "overthrows" the prior state of the Constitution.

For example, there is are perfectly legal manners of "overthrowing" an incumbent elected official, such as elections, impeachments, convictions (for those who do not enjoy immunity while in office), and recalls. Doing so to all elected members of the government simultaneously would be perfectly legal, although difficult to achieve.

Likewise, there is no limit to the scope of a constitutional amendment; thus a constitutional amendment can "overthrow" the entire constitution, in the same way that the 3/5ths clause was "overthrown" by the 13th amendment, or how the 18th amendment "overthrew" the limitations of federal regulation of intrastate commerce, production and sale, with regards to alcohol, only to be overthrown in turn by the 21st amendment.

sharur
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  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Jul 10 '20 at 00:05
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    And how the 21st amendment "overthrew" the 18th amendment. – Phoenix Jul 11 '20 at 02:20
  • Overthrow has a definition: to remove forcibly from power (different dictionaries will provide subtly different definitions, but the core remains the same). Force is a key component of an overthrow; generally (always? I can't think of any counter examples), transitions of power in the US do not involve force. – asgallant Jul 11 '20 at 17:17
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    @asgallant Overthrow has many definitions. One of them is to defeat an opponent. One of them is to forcefully remove someone. One of them is to throw a ball farther than intended. By claiming that only one specific definition could possibly be meant, you've already lost your treason trial. Any beginning attorney would shut you down in seconds by pointing out that overthrow doesn't necessarily mean violence. Because it doesn't. English sentences are not mathematical expressions, and words are not variables. – barbecue Jul 11 '20 at 19:30
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    @barbecue when has overthrow been used to refer to a non-forceful transition of power in government? I can't speak to the rest of the world, but it simply isn't used like that in the US. – asgallant Jul 12 '20 at 02:45
  • @asgallant The dictionaries say otherwise for the US. Noah Webster's original American Dictionary of the English Language from 1828 includes to subvert, ruin or destroy, and gives as an example, to "overthrow religion." This more general sense is why you often see explicit reference to "violent overthrow" or "overthrow by force." http://webstersdictionary1828.com/Dictionary/overthrow See also: https://www.dictionary.com/browse/overthrow or https://www.merriam-webster.com/dictionary/overthrow – Just a guy Jul 12 '20 at 04:13
  • @Justaguy I don't believe the common understanding of "overthrow" is an ambiguous 'forceful or non-forceful'. The connotations in dictionary.com/browse/overthrow are clearly of force or violence. Also: "c. 1300, ouerthrouen, "to knock down, throw down, cast headlong," from over- + throw (v.). Figurative sense of "to cast down from power, defeat" is attested from late 14c. Related: Overthrown; overthrowing. Earlier in same senses was Middle English overwerpen "to overturn (something), overthrow; destroy," from Old English oferweorpan (see warp (v.))." https://www.etymonline.com/word/overthrow – Lag Jul 12 '20 at 07:53
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    Why is anyone trying to debate this? No dictionary I've seen has one single definition for this word. If you've got a reference to a dictionary that EXCLUSIVELY defines overthrow as being physically violent, please produce it. I'll produce MULTIPLE examples where it doesn't. If you think this word has only one meaning, you're simply wrong. – barbecue Jul 12 '20 at 15:18
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    @Lag The example you provided does not support your claim. verb (used with object), o·ver·threw, o·ver·thrown, o·ver·throw·ing.
    1. to depose, as from a position of power; overcome, defeat, or vanquish: to overthrow a tyrant.
    2. to put an end to by force, as a government or institution.
    3. to throw or knock down; overturn; topple:

    Even in the example you provided, the use of force is only mentioned in the SECOND definition.

     – barbecue Jul 12 '20 at 15:23
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    Rather than post six or seven separate web links which conclusively prove that this word does not have a single definition, I'll just point out that the English language makes extensive use of metaphor, and political dialog in particular makes extensive use of hyperbole. Trying to turn some politician's pandering to their base into treason is just dumb. – barbecue Jul 12 '20 at 15:25
  • @barbecue Although I think overthrow has a connotation of force, I don't think this politician's words constitute treason, legally or metaphorically. – Lag Jul 12 '20 at 20:04
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    @Lag I agree overthrow means the removal is involuntary. Force in this case however can be the force of public opinion, the force of law, economic pressure, personal pressure, etc. None of this requires violence. When we say a politician is "forced out of office" we don't mean armed insurgents kill or kidnap them, we mean they are fired, or pressured to quit due to negative public opinion, family issues, etc. When an employee is "forced to resign," no gun is held to their head. they're given a choice of resigning instead of some other negative consequences. Force != illegal or physical force. – barbecue Jul 12 '20 at 20:52
  • @barbecue To the best of my recollection I have never seen "overthrow the government" (or such) used in reporting without relation to the use or threat of force-as-in-violence; I have not seen it used in the context of a peaceful transfer of power, transition or dismissal. If you have any examples of such usage I'd be grateful to have the opportunity to read them. – Lag Jul 14 '20 at 10:29
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    @lag I'm not sure what I could provide that would prove anything, since any example I provide we would simply disagree on what it means. Instead I will point out the fact that "violent overthrow" is specifically used to mean a case where an overthrow is violent, implying that non-violent overthrow is possible. Also see 18 USC Chapter 115, §2385, Sedition law, which repeatedly and specifically states "by force or violence" in conjunction with sedition. Why repeatedly make this point if it isn't needed? – barbecue Jul 14 '20 at 13:06
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    @lag here is an article which explicitly calls for non-violent overthrow of the Trump administration. It specifically mentions the 2020 election as one means of overthrowing. – barbecue Jul 14 '20 at 13:12