The Biden Administration's Landmark Day in the Climate Fight

By Bill McKibben, The New Yorker

29 January 21

anuary 27th was the most remarkable day in the history of America’s official response to the climate crisis, at least since that June afternoon in 1988, when NASA’s James Hansen told a congressional committee that the planet had begun to heat. On Wednesday, in the course of a few hours, the Biden Administration took a series of coördinated actions that, considered together, may well mark the official beginning of the end of the fossil-fuel era.

The Biden Administration temporarily paused the new leasing of federal lands and waters for fossil-fuel production, while speeding up the process of permitting renewables. The President pledged that the federal government would start buying electric cars in volume. His order sets up or strengthens offices in the Justice Department, the Energy Department, and the Environmental Protection Agency to focus on what he called “environmental justice.” He announced that climate change would become a national-security priority for the Pentagon. And all of this came after his earlier pledges to rejoin the Paris climate accord and to cancel the Keystone XL pipeline. There’s a shock-and-awe feel to the barrage of actions, and that is the point: taken together, they send a decisive signal about the end of one epoch and the beginning of another. And that signal, most of all, is aimed at investors: fossil fuel, Biden is making clear, is not a safe bet, or even a good bet, for making real money. Coal, oil, and gas are the past, not the future. They’re the present, too, of course—but you don’t make big-money bets on the present.

We may not get to that future fast enough to stave off truly disastrous global warming—the natural world made some announcements of its own this week, including the news that the melt from glaciers and ice sheets is in line with the worst-case scenarios that scientists have produced—and we won’t get to that safer future easily. The fossil-fuel industry is already hitting back hard against the Biden announcements, using the only argument it has left: jobs. But the Administration’s team was prepared for the onslaught—Biden styled his announcements as a job-creation scheme, predicting, for instance, that electric cars would create a million new jobs for autoworkers. And his aides made clear that they understood the need to cushion the blow in areas where oil, gas, and coal jobs are disappearing. “We’re going to make sure that nobody is left behind,” the domestic climate czar Gina McCarthy told reporters. “We need to put people to work in their own communities. That’s where their home is. That’s where the vision is. So we are creatively looking at those opportunities for investment, so that we can get people understanding that we are not trying to take away jobs.”

The difference between these actions and the responses of previous Administrations is that Biden isn’t hedging his bets. Probably the day’s most important development was the least remarked upon. The White House made clear that America would stop letting public funds from agencies such as the Export-Import Bank flow to fossil fuels, and that it would use its leverage at the World Bank and the International Monetary Fund to support the goals of the Paris accord. And then, crucially, John Kerry, who is coördinating the Administration’s global climate policy, made clear in a speech to virtual Davos that this dictum applied to natural gas. “The problem with gas is, if we build out a huge infrastructure for gas now to continue to use it as the bridge fuel—when we haven’t really exhausted the other possibilities—we’re going to be stuck with stranded assets in ten, twenty, thirty years,” he said. “Gas is primarily methane, and we have a huge methane problem, folks.”

This statement is enormously important, because gas has always been the Democratic Party’s climate vice. The Obama Administration was willing to take on filthy coal, but did little to rein in fracking for gas—Kerry’s predecessor as Secretary of State, Hillary Clinton, initiated a program within the State Department to encourage fracking abroad. It was that Administration’s concession to the power of the fossil-fuel industry, which has wagered much of its future on gas; since coal is in terminal decline and oil will see a slow but steady fall as the world electrifies its vehicle fleets, fracked gas was the last chance for real growth for the fossil majors. What Kerry is trying to do is foreclose that gas boom, and it’s likely to work. If you want a straw in the wind, consider the career of Heather Zichal, whose job put her at the center of the Obama Administration’s gas plan, and who, for a period after that Administration left office, served on the board of one of the nation’s largest liquefied-natural-gas exporters. Now she is the head of a new lobby called the American Clean Power Association, and on Wednesday she gave unflinching backing to the Biden plan. “If we’re going to remove 51 billion tons of greenhouse gas emissions annually and get to zero emissions in 30 years,” she told the Washington Post, “this is going to require drastic action.” Her members, she said, are prepared to invest a trillion dollars in the coming years on clean energy projects. “We see nothing but opportunity.”

And the fossil-fuel firms see nothing but trouble. Liam Denning, who edited the “Heard on the Street” column for the Wall Street Journal and wrote the “Lex” column for the Financial Times, explained yesterday for Bloomberg that two of the climate movement’s strategies for cutting off financial support for oil and gas are “delay and doubt.” He said, “The first erodes an investment’s value via the magic of the time value of money. The second does it by raising the cost of capital going in; if something looks riskier, it must clear a higher hurdle before anyone cuts a check to finance it.” Yesterday’s announcements “effectively cast a pall over the longer-term cash flows from oil and gas investments,” he added. “After a decade defined by easy financing and the safe assumption of continued growth, the past week’s politics reaffirm the 2020s present a far murkier prospect for oil and gas. Capital markets will price accordingly—and thereby shape the outcome.”

The climate fight is far from over—battles with the fossil-fuel industry will continue for the foreseeable future, and the outcome will determine the pace of the transition toward clean energy. (Keep an eye on the fate of the Dakota Access Pipeline and the Line 3 tar-sands pipeline in Minnesota—the new Administration’s climate logic should mean their cancellation, but it would be a heavy political lift.) But this week’s actions mark an unmistakable turning point. The climate movement has, finally, shifted the zeitgeist far enough for an Administration to act decisively, and Joe Biden has risen to the moment.

Did Trump and His Supporters Commit Treason?

By Jeannie Suk Gersen, The New Yorker

29 January 21

or years, Carlton F. W. Larson, a treason scholar and law professor at the University of California, Davis, has swatted away loose treason accusations by both Donald Trump and his critics. Though the term is popularly used to describe all kinds of political betrayals, the Constitution defines treason as one of two distinct, specific acts: “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.” Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening ISIS, is not treason, either—though that is getting warmer. During Trump’s Presidency, Larson told me, his colleagues teased him by asking, “Is it treason yet?” He always said no. But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election. “It’s very clear that would have been seen as ‘levying war,’ ” he said.

Both of Trump’s impeachments, in 2019 and 2021, were for “high crimes and misdemeanors,” but the Constitution also names treason as an offense for which a President can be impeached. Individuals, including a former President, may also be criminally punished for treason, perhaps the highest offense in our legal system, carrying the possibility of the death penalty. Fearing abuse of treason charges, the Framers gave treason a narrow definition and made it extremely difficult to prove.

The Treason Clause dictates that a conviction can rest only “on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Partly as a result, there have been around forty treason prosecutions. No American has been executed for treason against the U.S., although Hipolito Salazar (a Mexican who officials thought was American) was federally executed for treason during the Mexican-American War, and some states have executed people for treason, including the abolitionist John Brown.

Larson wrote in his book “On Treason: A Citizen’s Guide to the Law,” from 2020, that the Framers “had a very specific image in mind—men gathering with guns, forming an army, and marching on the seat of government.” Few events in American history, if any, have matched that description as clearly as the insurrection of January 6th, which, court documents suggest, was planned by milita members who may have intended to capture elected officials. The American most associated with treason was one who did not “levy war” but rather gave “aid and comfort” to the enemy: Benedict Arnold. He at first fought heroically in the Revolutionary War but then attempted to aid the British; he fled to the enemy when his betrayal was discovered, and so was never punished. Treason prosecutions for levying war were brought against some individuals who took part in the Whiskey Rebellion of 1794, in which armed men burned down a tax collector’s house, and the Fries Rebellion of 1799, in which armed men stormed a prison and forced the release of tax resisters. Both resulted in conviction followed by pardon. The Jefferson Administration prosecuted the former Vice-President Aaron Burr, in 1807, for allegedly conspiring with a group of armed men to overthrow the U.S. government in New Orleans, but he was acquitted. In connection with that planned rebellion, the Supreme Court held that a mere conspiracy to levy war does not count as actually levying war. Another treason case resulted from the Christiana Riot, in which dozens of men fought the return of slaves to their owners as required by the Fugitive Slave Act. Supreme Court Justice Robert Grier, presiding at trial (as Justices did in those days), held that “levying war” had to involve an intent to overthrow the government or hinder the execution of law.

Southern secessionists who waged war against the United States were treasonous under any reading of the Treason Clause’s “levying war” standard. Jefferson Davis, the former U.S. senator turned President of the Confederacy, was indicted for treason in 1866. Before trial, however, Chief Justice Salmon Chase made clear his view that the Fourteenth Amendment, which had been ratified a few months earlier, precluded any other treason penalties for Confederates. Section 3 of the amendment bars from holding public office anyone who took an oath to support the Constitution and then “engaged in insurrection against” or gave “aid or comfort to the enemies” of the United States. Because of the Chief Justice’s interpretation, President Andrew Johnson gave up on the prosecution of Davis and granted amnesty to all former Confederates if they swore an oath to defend the Constitution and the Union.

In the past century, federal treason prosecutions generally have been “aid and comfort” cases. After the Second World War, a Japanese-American woman named Iva Toguri D’Aquino, better known as Tokyo Rose, was convicted of treason for broadcasting anti-American propaganda on Radio Tokyo; she was pardoned in 1977, after witnesses recanted. The poet Ezra Pound was famously prosecuted for Fascist propaganda broadcasts on Italian radio; the case was dropped in 1958, when he was found incompetent to stand trial. During the Cold War, Julius and Ethel Rosenberg were convicted and executed for conspiracy to commit espionage, not treason; the Soviet Union was not technically an enemy. After a half century of no federal treason cases, the indictment of the Al Qaeda spokesman Adam Gadahn, in 2006, was the first to concern giving aid and comfort to an enemy that was not a nation. Had Gadahn ever been tried, the defense might have argued that a terrorist group such as Al Qaeda isn’t an enemy as envisioned in the Treason Clause, though a federal district court assumed, in 2013, that it was. Gadahn was killed in Pakistan in 2015, by a C.I.A. drone strike.

Since the Capitol insurrection, there has been little talk of treason charges. Carlton Larson suggested that this was because “everybody now tends to think of treason as mostly aiding foreign enemies.” In his book “On Treason,” he even states that “levying war is arguably archaic, of interest only to historians,” and that, in the twenty-first century, “armed rebellions to overthrow the government are simply not going to happen.” But, to the Framers, such an insurrection was a paradigmatic case of treason. The founding-era Chief Justice John Marshall held in the treason trial of Aaron Burr that levying war entails “the employment of actual force” by “a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility.” If some of those who attacked the Capitol assembled in order to incapacitate Congress—perhaps even by kidnapping or killing lawmakers—then their actions could be construed as an attempt to overthrow the government, and federal prosecutors could plausibly consider treason charges. As Larson put it, “At some point, you have to say, if that’s not levying war against the United States, then what on earth is?”

Last Tuesday, Mitch McConnell, who is now the Senate Minority Leader, said that the attackers “tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like,” offering a narrower purpose than government overthrow. Investigators examining the emerging evidence on the scope of the plot might disagree. Federal law also makes it a separate felony for anyone who owes allegiance to the U.S. and knows of the commission of any treason to conceal it or not tell authorities. That vastly widens the net of those who could potentially be charged, including friends, acquaintances, and co-workers of the attackers. (Since the attack, many such individuals have, in fact, come forward to give information to law enforcement.)

The Treason Clause’s strict evidentiary rule of two witnesses to the act makes it exceedingly difficult to convict anyone of treason, even with so much conduct captured on video. But a treason case against Trump himself might conceivably be built, if prosecutors could establish that he knew in advance that his supporters planned to violently assault the Capitol, rather than peacefully protest; that he intended his speech urging them to “fight harder” to spur them to attack Congress imminently; and that he purposely didn’t do anything to stop the insurrection while it was unfolding—or, worse, intentionally contributed to a security failure that led to the breach. Then Trump would have engaged in treason along with supporters who attempted, in his name, to overthrow the U.S. government. At a minimum, it appears that Trump, along with top government officials, was aware that his followers were planning acts of violence. Trump did, however, say, in the midst of his incendiary speech, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Short of treason, a related federal law prohibiting rebellion or insurrection states that a person who incites “any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto,” has committed a serious felony and is disqualified from holding federal office. This description is similar to the current article of impeachment against Trump: “for inciting violence against the Government of the United States.” If two-thirds of senators vote to convict Trump, a majority of the Senate could then vote to bar him from future federal office. But a Senate conviction requires the votes of at least seventeen Republicans and, so far, looks unlikely. A federal criminal conviction for inciting rebellion or insurrection may offer an alternative route to disqualifying Trump from holding office.

For the time being, the government has indicted more than a hundred and fifty people for crimes related to the insurrection, including unlawful entry, disorderly conduct, theft, destruction of property, firearms offenses, assault on police, conspiracy, obstruction of an official proceeding, obstruction of justice, and even curfew violation. Ongoing investigations will likely produce more indictments. In addition to potential homicide and terrorism charges, prosecutors have pledged to pursue the charge of “seditious conspiracy.” That crime overlaps with but covers more than treason; federal law defines it as any conspiracy “to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.”

While federal prosecutors could charge some of the leaders of the riot with treason, seditious conspiracy would be far easier to prove. It is clear that the rioters’ goal was, at a minimum, to delay Congress’s legally mandated counting of electoral votes. Prosecutors would need to prove that two or more people had agreed to undertake the seditious conduct, but, with respect to the rioters who were explicit about their aims and coördinated their actions, the evidence may well be sufficient, particularly given the violent result. More evidence might even enable charges against individuals who conspired to attack the Capitol but didn’t take part in the events. Some of those individuals might be elected officials. Representative Mikie Sherrill, a Democrat of New Jersey, has alleged that unnamed members of Congress “had groups coming through the Capitol that I saw on January 5th, a reconnaissance for the next day.” Soon afterward, the U.S. Government Accountability Office and the Capitol Police opened investigations into what roles members might have played in the siege.

If evidence were to emerge that members of Congress intentionally aided or incited the attack, they may face criminal consequences. It’s more likely, however, that Republicans who amplified Trump’s election-fraud lies will be sanctioned by their colleagues. Seven Democratic senators have filed an ethics complaint against the Republican Senators Ted Cruz, of Texas, and Josh Hawley, of Missouri, who led the effort to overturn the election in Congress. Representative Cori Bush, a Democrat of Missouri, has introduced a House resolution to investigate and potentially expel members of Congress who challenged states’ electoral votes. Bush said, in a tweet, that they “incited this domestic terror attack through their attempts to overturn the election.” Mitch McConnell may agree. He has pointedly acknowledged that the mob was “provoked by the President and other powerful people,” implying that fellow-lawmakers might bear responsibility. But, whatever moral condemnation or political remedy is appropriate, criminal charges cannot be brought against congresspeople such as Hawley and Cruz solely for using a legal process to challenge electoral votes in Congress. It is unlikely that any Republican politician thought they’d succeed in overturning the election, and it may be hard to distinguish their moves in Congress, at least legally, from a few Democrats’ challenges to states’ electoral votes in 2001, 2005, and 2017.

Even if Congress doesn’t censure or expel any of its members, the Senate declines to convict Trump, and federal prosecutors decline to bring charges against any of them, Trump and lawmakers who tried to overturn the election could still be held accountable through Section 3 of the Fourteenth Amendment, the same provision that was intended to prevent former Confederates from holding office. If Trump and the officials tried to run for office again, a lawsuit could claim that they “engaged in insurrection or rebellion” within the meaning of the Fourteenth Amendment, and, if the evidence bears it out, some could be disqualified from holding office. But, apart from any of these remotely possible legal remedies, Republicans who helped foment the attack are facing political repercussions: in the weeks since the riot, Hawley has had a fund-raiser and a book contract cancelled, and Missouri’s two biggest newspapers have called for his resignation. But, alas, in our divided country, Republican officials who denounced the insurrection or voted to impeach Trump may also face the ire of many Republican voters.

The past month has required both affirmation of the strength of our democracy and recognition of its fragility. Laws against treason, sedition, rebellion, and insurrection may seem obscure or arcane, but they are on the books for those real instances in which the expression of strong beliefs, which is constitutionally protected, crosses into actions that fundamentally betray and threaten our government. In times of intense division, such actions pose more danger even as their meaning becomes more contestable. The deep split that cracked open during one of the most consequential transfers of power in history—which, as it turned out, was militarized and not exactly “peaceful”—is apparent in the fact that one side’s patriot is the other side’s traitor. Punishments for disloyal acts are a means of insisting on who has legitimate power in our constitutional democracy, and of deterring those who are shown to be trying to destroy it. The legal terms may seem archaic, and sometimes have been misused or abused, but that should not blunt their precise relevance to our unfortunate contemporary situation.