The Constitution says treason against the United States consists only in levying war against it, or in adhering to its enemies, giving them aid and comfort. Constitution Annotated
No one can be convicted of treason except on the testimony of two witnesses to the same overt act, or on a confession in open court. Constitution Annotated
The Framers meant treason to be a narrow crime, so the politically powerful couldn’t turn ordinary partisan disputes into capital treason charges, as had often happened in England. Constitution Annotated
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Treason Test
Pick a kind of act to see what each part of the Constitution’s definition of treason requires, and which related federal crimes can apply instead. It illustrates the law and never assesses any real person or event.
How to answer this
The Constitution says treason against the United States consists only in levying war against it, or in adhering to its enemies, giving them aid and comfort. No one can be convicted of treason except on the testimony of two witnesses to the same overt act, or on a confession in open court. Constitution Annotated
An American citizen owes allegiance to the United States wherever he lives, and dual nationality doesn’t change that. The Supreme Court has also declared that noncitizens, while domiciled in the United States, owe it a temporary allegiance, though it has never directly ruled on whether only citizens can commit treason. Constitution Annotated
Every result that can fit treason explains who owes allegiance, so citizens and noncitizens answer this the same way.
Military information sent to a country at war with the United States: choose Helping, which leads to the aid and comfort result; that result also notes the wartime defense information law.
Information that isn’t national defense information, such as a company’s trade secrets: choose Sharing, then say who received it.
Membership in a group that teaches overthrowing the government by force: choose Speech.
An armed secession or uprising against the government: choose Using force.
Fighting for a foreign country at war with the United States: choose Fighting against the United States.
Speech or broadcasts made for a country at war with the United States: choose Helping.
Speech that only argues for overthrowing the government, with no plan or agreement to carry it out: choose Speech.
Pick the kind of act, not a news story. This explainer describes the law, not any real person or event.
| Crime and law | What it covers, and the penalty |
|---|---|
| Treason (Constitution, Art. III, Sec. 3; 18 U.S.C. 2381) | The Constitution says treason against the United States consists only in levying war against it, or in adhering to its enemies, giving them aid and comfort. No one can be convicted of treason except on the testimony of two witnesses to the same overt act, or on a confession in open court. Under federal law, anyone owing allegiance to the United States who levies war against it, or adheres to its enemies and gives them aid and comfort, in the United States or elsewhere, is guilty of treason. The penalty is death, or at least five years in prison and a fine of at least $10,000, and the person can never hold federal office. Congress sets the punishment for treason, but a treason conviction can’t work “corruption of blood,” and any forfeiture ends with the convicted person’s life. Constitution AnnotatedU.S. CodeConstitution Annotated |
| Misprision of treason (18 U.S.C. 2382) | Misprision of treason is the crime of someone owing allegiance who knows of treason against the United States and conceals it, rather than reporting it as soon as possible to the president, a federal judge, or a state governor or judge. The penalty is a fine, up to seven years in prison, or both. U.S. Code |
| Rebellion or insurrection (18 U.S.C. 2383) | Anyone who incites, starts, assists or engages in a rebellion or insurrection against the authority of the United States or its laws, or gives it aid or comfort, faces a fine, up to 10 years in prison, or both, and can never hold federal office. U.S. Code |
| Seditious conspiracy (18 U.S.C. 2384) | Seditious conspiracy is the crime of two or more people in any state or territory, or anywhere else under U.S. jurisdiction, conspiring to overthrow or destroy the U.S. government by force, to levy war against it, to oppose its authority by force, to use force to prevent, hinder or delay carrying out any federal law, or to seize U.S. property by force. Each faces a fine, up to 20 years in prison, or both. U.S. Code |
| Advocating overthrow of government (18 U.S.C. 2385) | Federal law makes it a crime to knowingly or willfully advocate or teach the duty, necessity, desirability or propriety of overthrowing any government in the United States by force or violence; to publish or distribute such material intending to cause an overthrow; or to organize, or knowingly join, a group that teaches or advocates it. The penalty is a fine, up to 20 years in prison, or both, plus five years barred from federal jobs. The Smith Act, now 18 U.S.C. 2385, bans advocating the overthrow of the U.S. government by force and violence. The Supreme Court upheld it in Dennis v. United States (1951), and in Yates v. United States (1957) read it to require advocacy of unlawful action, urging people to do something now or in the future, rather than advocacy of forcible overthrow as an abstract doctrine. In Scales v. United States, the Supreme Court upheld the Smith Act’s membership clause as the court interpreted it: a felony only for an active member of a group advocating violent overthrow who shares that specific intent. In Brandenburg v. Ohio (1969), the Supreme Court reformulated its earlier rulings on advocating force, including Yates and Scales: the government may punish advocacy of force or lawbreaking only when it is directed to inciting or producing imminent lawless action and is likely to do so. U.S. CodeConstitution AnnotatedConstitution AnnotatedConstitution Annotated |
| Gathering or passing defense information (18 U.S.C. 793) | The Espionage Act makes it a crime to gather national defense information intending, or having reason to believe, that it will be used to injure the United States or to help any foreign nation. It also covers anyone who has national defense documents or information, lawfully or not, and willfully passes them to someone not entitled to receive them. For information rather than documents, the person must have reason to believe it could be used to injure the United States or to help a foreign nation. The penalty is a fine, up to 10 years in prison, or both. U.S. Code |
| Delivering defense information to a foreign government (18 U.S.C. 794) | Delivering national defense information to any foreign government, with intent or reason to believe it will be used to injure the United States or to help a foreign nation, is punishable by death or by prison for any term of years or life. Death is allowed only in listed cases, such as a disclosure that led to the death of a U.S. agent or that directly concerned nuclear weapons or war plans. In time of war, collecting or passing on information about U.S. forces, operations or defenses, intending that it reach the enemy, is punishable by death or by prison for any term of years or life. U.S. Code |
| Material support to terrorists (18 U.S.C. 2339A) | Providing material support or resources, such as money, lodging, training, weapons, personnel or transportation, knowing or intending it will be used to prepare for or carry out listed terrorism crimes, is punishable by a fine, up to 15 years in prison, or both, or any term of years or life if someone dies. Medicine and religious materials don’t count. U.S. Code |
| Material support to a designated foreign terrorist organization (18 U.S.C. 2339B) | Knowingly providing material support or resources to a designated foreign terrorist organization, or trying or conspiring to, is punishable by a fine, up to 20 years in prison, or both, or any term of years or life if someone dies. The person must know the group is a designated terrorist organization, or that it has engaged in terrorist activity or terrorism. U.S. Code |
The Definition, Part by Part
- In Ex parte Bollman (1807), Chief Justice John Marshall confined “levying war” to actually waging war, and he separated conspiring to levy war from actually levying it. Constitution Annotated
- Marshall wrote that levying war takes “an actual assembling of men, for the treasonable purpose.” Once war is actually levied, everyone who performs any part, however minute or far from the scene, and who is actually leagued in the general conspiracy, is a traitor, even without appearing in arms. Constitution Annotated
- Marshall concluded that no conspiracy to overturn the government, and no enlisting of men to carry it out, would be an actual levying of war. Constitution Annotated
- In Cramer v. United States (1945), Justice Robert Jackson said treason by adhering to the enemy has two elements: adherence to the enemy, and giving it aid and comfort. A citizen may take actions that do aid and comfort the enemy, but without adherence to the enemy, meaning an intent to betray, there is no treason. Constitution Annotated
- In Haupt v. United States (1947), the Supreme Court upheld a treason conviction for the first time in its history. A father had sheltered his son, an enemy spy and saboteur, and helped him buy a car and get a job at a defense plant. The court held that the fact that a father might naturally do these things for a son didn’t necessarily keep them from being aid and comfort to the enemy. Constitution Annotated
- Under federal law, anyone owing allegiance to the United States who levies war against it, or adheres to its enemies and gives them aid and comfort, in the United States or elsewhere, is guilty of treason. The penalty is death, or at least five years in prison and a fine of at least $10,000, and the person can never hold federal office. U.S. Code
- In Kawakita v. United States (1952), the Supreme Court upheld the treason conviction of a U.S.-born citizen who was also a Japanese national. During World War II he worked as a civilian interpreter for a company making war materials for Japan and was accused of brutally abusing American prisoners of war. An American citizen owes allegiance to the United States wherever he lives, the court said, and dual nationality doesn’t change that. Constitution Annotated
- The Supreme Court has never directly ruled on whether only citizens can commit treason. Constitution Annotated
- In Carlisle v. United States (1873), a case about recovering seized property rather than a treason prosecution, the Supreme Court declared that noncitizens domiciled in the United States owe it a temporary allegiance and may be punished for treason just as a native-born citizen may, unless a treaty provides otherwise. Constitution Annotated
- No one can be convicted of treason except on the testimony of two witnesses to the same overt act, or on a confession in open court. Constitution Annotated
- In Haupt v. United States (1947), the Supreme Court also held that the two-witness rule doesn’t exclude confessions or admissions made out of court when they only back up a conviction whose legal basis rests on the testimony of two witnesses. Constitution Annotated
Why Treason Cases Are Rare
- The Treason Clause was meant to keep Congress from expanding the crime of treason. It also limits Congress’s ability to make treason easy to prove. Constitution Annotated
- Marshall’s rulings in the Burr trial, the Constitution Annotated says, made it extremely difficult to convict anyone of levying war against the United States short of conducting or personally taking part in actual hostilities. Constitution Annotated
- The Constitution doesn’t define “enemies.” The few treason cases to reach the Supreme Court since Bollman arose from World War II, and the Constitution Annotated cites a 1952 appeals decision that treated giving aid to “a country, not an enemy” as an offense distinct from treason. Constitution Annotated
- In Cramer v. United States (1945), the Supreme Court ruled 5-4 that the two-witness rule bars pinning incriminating acts on the accused through circumstantial evidence or one witness’s testimony. “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,” Justice Robert Jackson wrote. Constitution Annotated
- The Treason Clause doesn’t stop Congress from defining other crimes of a subversive nature and setting their punishment, as long as Congress isn’t merely trying to evade the clause’s limits. Constitution Annotated
- The difficulties the Burr rulings created have been largely avoided by punishing acts ordinarily treasonable in nature under a different label, following a formula Marshall himself gave in Bollman. Constitution Annotated
- The Constitution Annotated says Marshall’s shifts between Bollman and Burr, and the Supreme Court’s between Cramer and Haupt, leave the law of treason “in a somewhat uncertain condition.” Constitution Annotated
Why Criticism Isn’t Treason
- The Framers meant treason to be a narrow crime, so the politically powerful couldn’t turn ordinary partisan disputes into capital treason charges, as had often happened in England. Constitution Annotated
- The Framers deliberately left out the English offense of “compassing or imagining” the king’s death, the source of most of England’s law of “constructive treason.” Constitution Annotated
- A history of treason law the Constitution Annotated quotes says that English charge had been the main tool for using “treason” to suppress a wide range of political opposition, down to “the mere speaking or writing of views restrictive of the royal authority.” Constitution Annotated
- The First Amendment’s Free Speech Clause bars the government from suppressing particular ideas or messages. Constitution Annotated
- In 1989 and again in 1990, the Supreme Court held that prosecutions for burning a flag at a public demonstration violated the First Amendment. Constitution Annotated
- The Smith Act, now 18 U.S.C. 2385, bans advocating the overthrow of the U.S. government by force and violence. The Supreme Court upheld it in Dennis v. United States (1951), and in Yates v. United States (1957) read it to require advocacy of unlawful action, urging people to do something now or in the future, rather than advocacy of forcible overthrow as an abstract doctrine. Constitution Annotated
- In Scales v. United States, the Supreme Court upheld the Smith Act’s membership clause as the court interpreted it: a felony only for an active member of a group advocating violent overthrow who shares that specific intent. Constitution Annotated
- In Brandenburg v. Ohio (1969), the Supreme Court reformulated its earlier rulings on advocating force, including Yates and Scales: the government may punish advocacy of force or lawbreaking only when it is directed to inciting or producing imminent lawless action and is likely to do so. Constitution Annotated
- Under federal law, anyone owing allegiance to the United States who levies war against it, or adheres to its enemies and gives them aid and comfort, in the United States or elsewhere, is guilty of treason. The penalty is death, or at least five years in prison and a fine of at least $10,000, and the person can never hold federal office. U.S. Code
- In Cramer v. United States (1945), Justice Robert Jackson said treason by adhering to the enemy has two elements: adherence to the enemy, and giving it aid and comfort. A citizen may take actions that do aid and comfort the enemy, but without adherence to the enemy, meaning an intent to betray, there is no treason. Constitution Annotated
The Leading Treason Cases
- In Ex parte Bollman (1807), Chief Justice John Marshall confined “levying war” to actually waging war, and he separated conspiring to levy war from actually levying it. Constitution Annotated
- At Aaron Burr’s treason trial in 1807, Marshall ruled that Burr, who wasn’t present when the men assembled, could be convicted of advising or procuring a levying of war only on the testimony of two witnesses that he had procured the assembly. Because the operation had been covert, that testimony couldn’t be obtained, and the ruling made Burr’s acquittal inevitable. Constitution Annotated
- In Cramer v. United States (1945), the Supreme Court ruled 5-4 that the two-witness rule bars pinning incriminating acts on the accused through circumstantial evidence or one witness’s testimony. “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,” Justice Robert Jackson wrote. Constitution Annotated
- In Haupt v. United States (1947), the Supreme Court upheld a treason conviction for the first time in its history. A father had sheltered his son, an enemy spy and saboteur, and helped him buy a car and get a job at a defense plant. The court held that the fact that a father might naturally do these things for a son didn’t necessarily keep them from being aid and comfort to the enemy. Constitution Annotated
- In Kawakita v. United States (1952), the Supreme Court upheld the treason conviction of a U.S.-born citizen who was also a Japanese national. During World War II he worked as a civilian interpreter for a company making war materials for Japan and was accused of brutally abusing American prisoners of war. An American citizen owes allegiance to the United States wherever he lives, the court said, and dual nationality doesn’t change that. Constitution Annotated