"Abstract red-toned graphic featuring the word 'Treason' above a Constitution scroll and broken sword." — “Abstract visual depiction of the U.S. constitutional concept of treason.”

US Law on Treason: The Sole Crime Defined in the Constitution

Author Name: Nahyan | uslawguide

Last Updated: June 29, 2025

Treason stands alone in US law as the only crime explicitly defined within the body of the U.S. Constitution. This deliberate act by the Founding Fathers was a direct response to the historical abuse of treason charges, particularly in England, where they were frequently wielded by the monarchy to stifle political dissent and eliminate opponents. By establishing a remarkably high bar for conviction, the Framers sought to safeguard American citizens from similar governmental overreach and to protect the nascent republic from arbitrary accusations of disloyalty. Consequently, while the concept of betraying one’s nation is universally condemned, actual prosecutions for treason under US law are exceedingly rare, and successful convictions even more so. The rigorous definition and procedural protections around this charge are anchored in the US Amendments Bill of Rights and codified in Article III, Section 3 of the Constitution. For further reading, see the Legal Information Institute’s commentary on treason.

The Constitutional Mandate: Article III, Section 3

The cornerstone of US law on treason is found in Article III, Section 3 of the U.S. Constitution. This section meticulously outlines the specific criteria that must be met for an act to qualify as treason against the United States:

“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.”

This constitutional language is packed with critical implications that have shaped nearly two centuries of US law and jurisprudence regarding this ultimate offense:

1. Exclusivity (“shall consist only in”)
This crucial phrase underscores the Framers’ intent to prevent Congress or the courts from broadening the definition of treason beyond the two specific forms enumerated. Unlike other crimes, Congress cannot simply add new acts to the definition of treason. This constitutional constraint stands as a powerful bulwark against the potential for politically motivated charges and complements the due process principles protected by the US Amendments Bill of Rights.

2. Two Distinct Forms of Treasonous Conduct

Levying War Against the United States:
This form of treason demands more than mere plotting or conspiracy. It requires an actual assemblage of individuals for the purpose of using force to overthrow the government or to directly oppose its lawful authority.

Judicial Interpretation:
Early Supreme Court cases, most notably Chief Justice John Marshall’s interpretation during the trial of Aaron Burr, clarified that “levying war” necessitates an actual “assemblage of men for a purpose treasonable in itself.” Preparing for war, or even enlisting men, is insufficient without the physical gathering and organization for the intended forceful opposition. The goal must be to subvert the government’s authority, not merely to riot or commit ordinary crimes, no matter how violent.

Adhering to their Enemies, giving them Aid and Comfort:
This offense involves two concurrent elements:

Adherence to Enemies: This signifies an individual’s allegiance or loyalty to an “Enemy” of the United States. Crucially, “Enemy” has been consistently interpreted by US law to mean a foreign government or state with which the United States is in an actual state of war, whether declared or undeclared. This definition does not extend to non-state actors such as terrorist organizations, ideological groups, or criminal syndicates, even if they are hostile to U.S. interests. This distinction is vital in modern contexts.
Giving Aid and Comfort: This refers to providing any form of assistance to such an enemy that either strengthens their position or weakens the United States. Examples could include providing intelligence, supplying weapons, offering financial support, or harboring enemy agents. The aid need not be successful in its objective, but it must be intended to assist the enemy.

For a comprehensive breakdown of how treason is treated under constitutional law and judicial precedent, visit Cornell Law’s legal reference on treason:Here.

3. The “Overt Act” Requirement:

Treason cannot be prosecuted based on a defendant’s thoughts, intentions, or mere words, however disloyal they may seem. There must be a tangible, observable action—an “overt act”—that demonstrates the treasonous conduct. This act must be openly committed and proven. Its purpose is to ensure that the accused has moved beyond mere contemplation or discussion into concrete action.

4. The “Two Witness Rule” or Confession in Open Court:

This is arguably the most demanding evidentiary standard in all of US law, unique to treason. To secure a conviction, the prosecution must either:

Present the testimony of at least two witnesses who personally observed the same overt act of treason; OR
Obtain a confession from the accused made explicitly in open court during judicial proceedings. A confession made outside of court, such as to law enforcement, is insufficient for a conviction of treason.

This stringent rule dramatically limits the government’s ability to prove treason, underscoring the Framers’ deep suspicion of using such a charge lightly.

Punishment for Treason

While the Constitution defines treason, it grants Congress the power to determine the punishment. This power, however, is also constrained by constitutional safeguards:

18 U.S.C. § 2381: This federal statute outlines the penalties for treason. It states that anyone “owing allegiance to the United States” who commits 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.”
Limitations on Punishment: The Constitution specifically prohibits “Attainder of Treason” from working “Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” This means:
- No Corruption of Blood: The descendants of a convicted traitor cannot be punished for the ancestor’s crime. Their rights to inheritance or civic participation are not affected.
- Limited Forfeiture: Any property seized from a convicted traitor can only be forfeited for the duration of that individual’s life; it cannot be permanently confiscated from their heirs.

These limitations were a deliberate rejection of punitive measures common in English law, which sought to perpetuate the punishment of traitors across generations, reflecting a more humane and just approach under US law.

Historical Cases and the Rarity of Conviction

The stringent constitutional definition and evidentiary rules have made treason prosecutions exceptionally rare in US law. Those few cases that have reached trial have often reinforced the high bar for conviction:

The Trial of Aaron Burr (1807): Perhaps the most famous early treason trial, involving former Vice President Aaron Burr. Accused of plotting to create an independent empire in the American Southwest and potentially invade Mexico, Burr was brought to trial presided over by Chief Justice John Marshall. Marshall’s strict interpretation of “levying war,” emphasizing the necessity of an actual, visible assemblage of men, led to Burr’s acquittal. This landmark case solidified the narrow scope of treason.
Civil War Era: Despite the massive scale of rebellion, the Union government largely avoided widespread treason prosecutions against Confederate leaders after the Civil War. Pursuing such charges would have implied that the Confederate states were foreign entities, contradicting the Union’s legal theory that secession was illegal and they remained part of the U.S. Instead, the focus shifted to reconstruction and reconciliation, with many ex-Confederates eventually receiving pardons. One notable exception was William Bruce Mumford, a civilian executed for treason in New Orleans for tearing down a U.S. flag.
World War II: This period saw a small number of successful treason prosecutions, primarily against U.S. citizens who had aided enemy nations. Cases like those of Iva Toguri D’Aquino (famously known as “Tokyo Rose”) and Tomoya Kawakita centered on proving adherence to an enemy (Japan) and providing aid and comfort (e.g., propaganda broadcasts, mistreatment of POWs). Even these cases were complex and often controversial, highlighting the immense difficulty of meeting the constitutional standard. D’Aquino’s conviction, for instance, was later revealed to have involved prosecutorial misconduct and was eventually pardoned.

Since World War II, successful treason prosecutions have become almost non-existent.

Distinguishing Treason from Other Federal Crimes

The reason for the extreme rarity of treason charges in modern US law is not a lack of malicious acts against the nation, but rather the existence of numerous other federal statutes that address such conduct with significantly lower evidentiary burdens and broader definitions. Prosecutors almost invariably choose to pursue these related charges:

Espionage (18 U.S.C. §§ 793, 794): Deals with illegally obtaining, possessing, or transmitting classified information related to national defense to unauthorized individuals or foreign governments. Unlike treason, it does not require a state of war or the “two witness rule.”
Seditious Conspiracy (18 U.S.C. § 2384): Criminalizes conspiracies to overthrow, put down, or destroy by force the U.S. government, or to oppose by force its authority. This charge is frequently used in cases involving domestic attempts to subvert the government through violence, notably seen in prosecutions related to the January 6th Capitol riot. It lacks the “enemy” or “two witness” requirements of treason.
Rebellion or Insurrection (18 U.S.C. § 2383): Addresses inciting, assisting, or engaging in any rebellion or insurrection against the authority of the United States. Similar to seditious conspiracy, it captures acts of domestic armed defiance without the strictures of treason.
Material Support for Terrorism (18 U.S.C. §§ 2339A, 2339B): Prohibits providing tangible aid or resources (e.g., financial assistance, training, expert advice) to designated foreign terrorist organizations. This statute is frequently used against individuals who assist groups hostile to the U.S. interests, even if those groups are not formal nation-state “enemies” in a declared war.
Sabotage (18 U.S.C. § 2151 et seq.): Focuses on acts intended to injure or interfere with the national defense, such as damaging or destroying defense material or premises.

These statutes allow for more straightforward prosecution of acts that betray national security interests, without the formidable constitutional hurdles associated with treason.

Conclusion

Treason in US law remains a unique and powerful concept, but one deliberately constrained by the foresight of the nation’s founders. Its precise constitutional definition, coupled with the demanding “two witness rule” and the requirement of an “enemy” nation during a time of war, makes it an exceptionally difficult charge to prove. This inherent difficulty, combined with the availability of more broadly defined federal statutes addressing similar acts of disloyalty, ensures that while the ultimate betrayal of one’s allegiance carries profound consequences, the crime of treason itself is reserved for only the most egregious and provable acts against the fundamental structure and security of the United States in its purest constitutional sense.

Frequently Asked Questions About US Law on Treason

Q: Is it possible to be convicted of treason for criticizing the U.S. government? A: Absolutely not. Criticism of the U.S. government, even harsh criticism, is a protected form of speech under the First Amendment of the U.S. Constitution. It does not meet the specific constitutional definition of treason, which requires overt acts of “levying war” or “adhering to enemies.”

Q: What is the significance of the “Two Witness Rule” in treason cases? A: The “Two Witness Rule” is a critical safeguard. It mandates that a person cannot be convicted of treason unless two witnesses testify to the same overt act of treason, or the accused confesses in open court. This exceptionally high evidentiary standard was put in place to prevent false accusations and politically motivated prosecutions.

Q: Can a non-U.S. citizen commit treason under US law? A: Generally, treason requires “allegiance to the United States.” While this usually applies to U.S. citizens, courts have held that aliens (non-citizens) residing within U.S. territory or subject to U.S. jurisdiction owe a temporary allegiance and can potentially be charged with treason for acts committed within that jurisdiction. However, such cases are even rarer and complex.

Q: What is the primary difference between treason and espionage? A: The key distinction is the “enemy” requirement and evidentiary burden. Treason requires the U.S. to be in a state of war with an “enemy” nation-state and demands the “two witness rule.” Espionage involves sharing classified national defense information with unauthorized persons or foreign governments and does not require a state of war or the high evidentiary bar of treason. Espionage is much more commonly prosecuted.

Q: What does “corruption of blood” mean in the context of treason punishment? A: “Corruption of blood” was an old English legal concept where a convicted traitor’s family and descendants would also be punished by being barred from inheriting property or titles. The U.S. Constitution explicitly prohibits “corruption of blood” for treason, meaning the punishment for treason ends with the convicted individual and does not extend to their family or heirs.

Responsible Disclaimer: This article provides general information about US law on treason. It is not intended as legal advice. The legal principles surrounding treason and related federal crimes are highly complex and involve specific constitutional interpretations. For any specific legal questions or concerns regarding these matters, readers should consult a qualified criminal defense attorney or legal expert licensed in their jurisdiction.