According to the U.S. Constitution, Article III, Section 3, treason is defined very narrowly and requires either levying war against the United States or adhering to its enemies by giving them aid and comfort. This constitutional clause is published by the National Archives and Records Administration (NARA). This extremely strict definition means the United States records fewer than ten treason prosecutions in the past 50 years, according to data from the Congressional Research Service (CRS) 2023 report.
Treason is often mentioned in media, politics, and public discussions, yet very few people fully understand what legally qualifies as treason — and what does not. Many acts that seem disloyal or dangerous do not meet the threshold for a treason charge.
What Is Treason? (Legal Definition)
To understand treason, the first step is going straight to the most authoritative source in American law — the Constitution. The framers wrote the definition in Article III, Section 3:
“Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
This 31-word sentence has created 237 years of legal debate, Supreme Court opinions, and academic research papers — all trying to explain what “levying war” and “aid and comfort” actually mean.
Here are 3 facts every American needs to know:
1. Treason is the only crime defined in the U.S. Constitution.
No other offense — not murder, not piracy, not fraud — is mentioned with a legal definition.
2. Treason requires intent to betray the nation itself.
Not a person, not an agency, not a political party — the nation.
3. Treason can be committed only against the United States.
States cannot redefine treason in ways that conflict with the U.S. Constitution.
This constitutional restriction prevents governments from weaponizing the term for political retaliation — a common problem in several countries during the 1700s and 1800s. James Madison argued at the Constitutional Convention that a narrow definition was “absolutely necessary to prevent the use of treason as a political tool.”
The Two Legal Types of Treason
There are only two forms of treason in the United States.
1. Levying War Against the United States
“Levying war” sounds dramatic and old-fashioned, but it has a very specific meaning in U.S. law. Federal courts interpret “levying war” as:
➜ Organizing, assembling, or using armed force to overthrow the U.S. government or block the execution of federal law.
This includes:
- Raising a military force to fight the U.S.
- Organizing violent insurrections
- A coordinated attempt to replace or destroy the government
- Attacking federal institutions with a military-level force
Example from History: Aaron Burr (1807)
Aaron Burr, former Vice President, was famously charged with treason for allegedly raising an armed group to seize territory and create a new nation. He was acquitted because the prosecution could not meet the evidence requirements (we will explain these later).
Key Note
Spontaneous rioting or political violence does not automatically equal treason.
The U.S. Supreme Court has repeatedly ruled that treason requires clear, planned intent to wage war against the country.
2. Adhering to Enemies & Giving Aid and Comfort
This second form applies during wars or conflicts with foreign powers.
➜ Providing help, support, or loyalty to an enemy nation or enemy military during wartime.
Aid can include:
- Sharing military intelligence
- Giving money, weapons, shelter
- Broadcasting propaganda
- Serving in enemy armies
- Providing strategic assistance
- Communicating military plans
Example: WWII Propagandists
During World War II, several U.S. citizens broadcast pro-Axis propaganda on behalf of Japan or Germany. They were charged with treason because the U.S. was at war, and their broadcasts helped enemy psychological warfare operations.
Key Limitation
“Treason by aid and comfort” requires:
- An enemy nation
- A state of war
- Intentional support
For example, the U.S. Supreme Court ruled that “enemy” means a nation or entity with which the United States is in a declared or actual armed conflict.
Ordinary friendly relations or criticizing the government does not qualify.
Learn More: Search and Seizure:Rights, Amendments
What Is Not Treason? (Common Mistakes Americans Make)
Americans often use “treason” as a political insult, but 99% of the time, they’re using it incorrectly. Here are actions that do not meet the legal definition of treason such as Criticizing the government, disagreeing with political leaders, revealing embarrassing information, refusing to support a war, protesting federal policy, leaking documents (usually espionage, not treason), spying for a non-enemy nation, hacking U.S. systems (usually cybercrime, not treason).
The Supreme Court has repeatedly ruled that political speech — even radical speech — does not equal treason. The Founders intentionally made treason very hard to prosecute so that dissent, criticism, and anti-government opinions would remain protected under the 1st Amendment.
Treason vs. Sedition vs. Espionage vs. Terrorism
Many people confuse these terms, but they each have very different legal meanings.
Treason
Betraying the U.S. itself by waging war against it or aiding its enemies.
Punishment: up to death.
Sedition
Encouraging rebellion, resistance, or violence against the government.
Punishment: Up to 20 years under 18 U.S. Code § 2384 or § 2385. Sedition is easier to charge than treason but still rare.
Espionage
Spying for a foreign government or stealing national secrets.
Punishment: up to life in prison or the death penalty in wartime.
Espionage is far more common than treason. For example, Aldrich Ames and Robert Hanssen were convicted of espionage — not treason — because Russia was not classified as an “enemy” in wartime.
Terrorism
Using violence to intimidate or coerce governments or civilians.
Punishment: up to life in prison or death, depending on the act. Terrorism can overlap with sedition or espionage but almost never becomes treason because it rarely involves “aid to enemies.”
The Constitutional Foundation of Treason in the U.S.
The Constitution gives three important rules that shape all treason cases:
1. Two-Witness Rule or Confession in Court
To convict someone of treason, prosecutors must present:
- Two witnesses to the same overt act, or
- A confession in open court
This strict rule protects citizens from false accusations.
2. Congress Sets the Punishment
The Constitution gives Congress the power to define the punishment for treason — which includes allowing the death penalty.
3. No Corruption of Blood
Unlike in English law, the U.S. Constitution forbids extending punishment to a traitor’s family. Property, inheritance, and legal rights of descendants cannot be taken away. This was added because, historically, British kings used treason laws to wipe out families and seize estates.
Federal Statutory Definition — 18 U.S. Code § 2381
The modern federal law defining treason states:
“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…”
Penalties & Punishment for Treason
The penalties for treason are the harshest in U.S. law.
1. Death Penalty
Allowed under federal law but extremely rare.
The federal government has not executed someone for treason since World War II.
2. Life Imprisonment
This is the most common maximum sentence.
3. Minimum 5 Years in Prison
For lesser treason convictions.
4. Financial Penalties
A fine of at least $10,000, often higher.
5. Permanent Loss of Public Office Rights
A convicted traitor can never hold public office again.
6. Loss of Security Clearance & Federal Benefits
This includes:
- Federal retirement benefits
- Military pensions
- Classified access
Who Can Be Charged With Treason?
To be guilty of treason, a person must owe allegiance to the United States.
This includes:
✔ U.S. citizens
✔ Permanent residents (green card holders)
✔ Anyone on U.S. soil during an act of levying war
✔ Dual citizens who act against the U.S. during war
Non-citizens outside U.S. territory typically cannot be charged with treason — but they can be charged with terrorism, espionage, or war crimes.
How Treason Charges Are Filed?
Charging someone with treason is one of the most serious actions the U.S. government can take.
The process involves:
- FBI investigation
- Department of Justice (DOJ) review
- Approval from the U.S. Attorney General
- Grand jury indictment
- Federal trial
Because the evidentiary standard is high, most investigations end with espionage or terrorism charges instead.
Famous Treason Cases in U.S. History
1. Aaron Burr (1807) — Acquitted
Accused of planning to create his own empire.
Acquitted because two-witness rule was not satisfied.
2. The “Tokyo Rose” Case (1949) — Convicted
Iva Toguri D’Aquino, a U.S. citizen, was convicted of broadcasting propaganda for Japan.
She was later pardoned.
3. Tomoya Kawakita (1952) — Convicted
A dual citizen who abused U.S. POWs in Japan.
Sentenced to death (later commuted).
4. WWII Propagandists
Several individuals were charged for Nazi or Japanese propaganda efforts.
There have been no major federal treason convictions in recent decades.
Why Treason Is So Rare in the United States?
Three main reasons:
1. The definition is extremely narrow.
It covers only two acts.
2. The two-witness rule is hard to meet.
Prosecutors often fail to prove direct involvement.
3. Other crimes fit better.
Espionage, terrorism, and sedition cover most cases of national betrayal.
Because of this, the government often chooses charges that are easier to prove and carry similar penalties.
Final Thoughts
Treason sits at the very top of American criminal law — the most serious offense a person can commit against the nation. But it’s also the most misunderstood. The Founding Fathers made the definition intentionally narrow so the government could never weaponize treason charges against political enemies or critics.
When you boil everything down, treason comes in two forms:
- waging war against the United States, and
- helping enemies during wartime.
And that’s it. Everything else — no matter how offensive, reckless, or harmful — falls under different laws like sedition, espionage, or terrorism. Understanding this difference helps keep America’s legal system grounded, its civil liberties intact, and its political climate rooted in constitutional truth.
FAQs
How many people have been executed for treason in the U.S.?
Only one: Thomas D. Smith in 1865.
Can criticizing the president be treason?
No. Free speech is protected.
Is leaking classified documents treason?
Usually no — it’s espionage.
Can non-citizens commit treason?
Only if they owe allegiance (e.g., living in the U.S.).
Does treason require war?
Yes, for “aid and comfort.” But not necessarily for “levying war.”
