Treason Under the Constitution

Treason is the only crime defined in the Constitution of the United States. It is the act of waging war against the United States or materially aiding its enemies.

This article explores treason under the Constitution, including:

• The Constitution's text and definition of treason
• Frequently asked questions about treason
• The historical background of the treason clause
• Landmark Supreme Court cases involving charges of treason

The Framers of the U.S. Constitution intended to define treason narrowly after their experience with the English law of treason, which expanded the definition to cover many actions against the Crown.

The Framers also wanted to make it challenging to establish that someone committed treason. By defining treason in the Constitution, they restricted Congress's power to change the definition of the crime and the proof needed to establish charges of treason.

Since the Constitution's ratification, Congress has only brought treason charges 30 times. Few treason cases have ever reached the Supreme Court. Although there were several instances in early American history, the Court first sustained a treason conviction in 1947.

The Treason Clause

Article III, Section 3, Clause 1 of the U.S. Constitution 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."

Article III, Section 3, Clause 2 states:

"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."

Treason Explained

The Constitution defines treason as levying war against the United States or giving its enemies "aid and comfort." It also specifies that the federal government cannot secure a conviction for treason unless two witnesses testify to the same overt act or if the person accused of treason confesses in open court.

Clause 2 makes clear that Congress has the power to declare the punishment for treason.

Consider the following frequently asked questions about treason under the Constitution:

What does "levying war" against the United States mean?

"Levying war" refers to assembling for a purpose "treasonable in itself." It requires actions against the United States and not just a conspiracy against the nation.

In other words, it means "open action" against the United States through the use of force. See the discussion on Ex parte Bollman (1807) for more information.

What does it mean to give "aid or comfort" to an enemy of the United States?

Giving aid or comfort to an enemy means more than giving assistance that is "casually useful" to them. Instead, the aid or comfort must assist the enemy in some essential way to assist in their plan or design to commit a treasonous act.

To convict someone of the crime of treason for giving aid or comfort to an enemy, the government must prove two elements:

• Adherence or loyalty to an enemy of the United States, and
• Providing aid or comfort to the enemy.

As the Supreme Court has noted, treason cannot exist if either element is missing. For example, a U.S. citizen may favor or harbor sympathies for an enemy or hold beliefs that are disloyal to the United States. However, so long as they don't act on those by giving aid or comfort to the enemy, they have not committed treason.

Similarly, a U.S. citizen can take actions that, in fact, aid or comfort the enemy. However, as long as there is no adherence or loyalty to the enemy (i.e., no intent to betray the United States), there is no treason.

For example, a citizen can give a speech criticizing the government or organize a strike in a steel plant during a time of war. These actions could impair the United States' ability to defend itself or diminish the country's strength. However, if the citizen did so without intending to betray the United States, there would be no treason.

Additionally, giving aid or comfort requires an act of some kind. As the Supreme Court noted in Cramer v. United States (1945), the very nature of giving aid or comfort contemplates a "deed or physical activity" rather than a "mental operation."

An act that strengthens (or tends to strengthen) the enemy or weakens (or tends to weaken) the United States likely constitutes giving "aid or comfort" to the enemy. In other words, "thoughts and attitudes alone" cannot constitute treason.

See the discussions about Cramer and Haupt v. United States (1947) below for more information.

Who is an "enemy of the United States"?

An enemy of the United States is a person, partnership, or other group of individuals who live within the territory of any nation the United States is at war with. It also includes governments of any nation with whom the United States is at war.

Another way to think about whether someone is an enemy or not is if their loyalties lie with a country other than the United States, in combination with their actions against the United States.

See the discussion of Kawakita v. United States (1952) below for more information.

What is an "overt act" with regard to treason?

An overt act is an action someone takes that shows their treasonable goals have moved from "the realm of thought into the realm of action."

In other words, it is an act that manifests a treasonous intent that the actor takes to accomplish their objective. The Court has written that overt acts must be intentional, as opposed to "merely negligent or undersigned."

For more information, see the discussions of Cramer and Haupt below.

Do dual citizens owe allegiance to the United States?

Yes, dual citizens owe continuing allegiance to the United States. As the Supreme Court has noted, the treason clause does not contain any territorial limitations. For more information, see the discussion of Kawakita.

Historical Background of The Treason Clause

After winning the Revolutionary War, delegates from each state met in Philadelphia to discuss changes to the national government. The Constitutional Convention in 1787 involved many debates over the limits of the federal government's power and what rights, if any, to include in the Constitution.

As the Library of Congress's Constitution Annotated notes, the Framers were wary of vesting the power to declare and punish treason in Congress. Having just won their independence from Great Britain, the Framers had seen how the English kings and British Parliament had escalated "ordinary partisan disputes into capital charges of treason." In other words, the ruling class used the crime of treason to eliminate their political dissidents.

The Framers wanted to create a "restrictive concept of the crime of treason." Accordingly, the Framers adapted parts of the English Statute of Treason when they formulated the treason clause. However, they specifically left out the phrase that defined treason as "the 'compass[ing] or imagin[ing] the death of our lord the King.'" As the Constitution Annotated notes, English kings and the parliament used that language to develop "constructive treason" laws.

In addition, the Framers witnessed treason during the Revolutionary War. In 1780, General Benedict Arnold betrayed George Washington and the United States when he conspired to turn the fort at West Point over to the British for money. He subsequently led British forces against the Colonial Army in 1781. He escaped to England before the Colonial Army could capture him.

The language the Framers ultimately embodied in Article III, Section 3 served several purposes:

• It provided a specific definition of treason that can only be changed through an amendment to the Constitution.
• It provided the standard of proof for a treason conviction by requiring at least two witnesses to testify to the overt act in question.
• It limited Congress's ability to punish the crime of treason.

Therefore, the treason clause's text protects against a corrupt executive or Congress (comprised of the House of Representatives and the Senate) from easily expanding the definition of treason. It also prevents Congress from easily changing the proof needed to secure a treason conviction and its punishment.

In Cramer (1945), the Supreme Court explored the clause's history in depth. For more information, consider reading the opinion.

Supreme Court Cases and The Treason Clause

This section describes several landmark Supreme Court cases involving the treason clause. These cases shed light on how the Court has interpreted the clause throughout history and inform its modern understanding.

Levying War Against the United States

Two cases from 1807 laid the foundation for what it means to levy war against the United States. Both stemmed from actions Aaron Burr took in the early 1800s.

Burr had a rough few years. He lost a contentious presidential election to Thomas Jefferson in 1800. Soon after, he killed Alexander Hamilton in a duel. Following the election loss and the killing of Hamilton, both the Democratic-Republicans and the Federalists shunned him.

In response, Burr headed west. Around 1805, he began an independent military campaign to seize lands in modern-day Louisiana and Texas. At that time, those lands belonged to Spain. He allegedly offered an incentive to any states that joined him on his "adventure."

One of Burr's companions, General James Wilkinson, abandoned the campaign. He reported Burr's activities to President Jefferson, including that he was trying to persuade Western states to leave the United States. Jefferson brought this information to Congress, which ordered federal authorities to arrest Burr on suspicion of treason.

Ex Parte Bollman (1807)

In Ex parte Bollman, Chief Justice John Marshall clarified the difference between levying war and conspiring to levy war. The case also played an important role in Aaron Burr's treason trial later that year.

The case involved two men, Erick Bollman and Samuel Swartwout, arrested on charges of treason. Both men had joined Burr on his campaign in the western territories.

The case did not involve a prosecution for treason. Instead, the government detained the two men, and they challenged their detainments through writs of habeas corpus. The Court had to determine whether it could issue a writ of habeas corpus (it ruled it could). After deciding it could issue the writs, the Court had to determine whether to set the men free or continue their detainments.

Marshall wrote the majority opinion. In it, he declared that merely conspiring to "subvert by force the government of our country" was not treason. In his opinion, conspiring to levy war and actually levying war were two different offenses.

He argued that for someone to levy war against the United States, they must engage in open action "for a purpose treasonable in itself." Marshall opined that just enlisting people for a treasonous purpose did not rise to "levying war" against the United States. Therefore, that act did not amount to treason.

Marshall stated, however, that the Court's opinion did not foreclose a finding of guilt just because a treasonous person did not necessarily raise arms against the United States. In this regard, he wrote the following:

"On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."

Marshall ordered the men discharged from prison. The majority ruled that, based on the above considerations and that the charged crimes did not occur in Washington, D.C., the Court could not try them in the District of Columbia. As the Constitution Annotated notes, Marshall "concluded that 'no conspiracy for overturning the Government and no enlisting of men to effect it, would be an actual levying of war.'"

United States v. Burr (1807)

Chief Justice Marshall simultaneously served on the Supreme Court and the U.S. Circuit Court of Virginia. Because of this, he presided over the treason trial of Aaron Burr in 1807.

During the trial, there was testimony that Burr was over 100 miles away from the location where the prosecution alleged Burr committed his overt act of treason.

Relying on Ex parte Bollman, Marshall instructed the jury that it could only consider testimony regarding whether Burr had committed an act of war against the United States at that location. He wrote:

"No testimony relative to the conduct or declarations of the prisoner elsewhere, and subsequent to the transaction on Blennerhassett's Island, can be admitted; because such testimony, being in its nature merely corroborative and incompetent to prove the overt act in itself, is irrelevant until there be proof of the overt act by two witnesses. . . . This opinion does not comprehend the proof by two witnesses that the meeting on Blennerhassett's Island was procured by the prisoner."

The jury acquitted Burr of his treason charges. While United States v. Burr is most well-known for its holding regarding executive privilege, it also laid a foundation for future treason cases. As the Constitution Annotated points out, the case made it "extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities."

Aid and Comfort to the Enemy

Very few treason cases have made it to the Supreme Court. The most recent cases occurred due to actions taken by enemies of the United States during World War II. Those cases involved charges that people or groups gave aid or comfort to enemies of the United States.

In 1942, the German government sent eight spies and saboteurs teams to the United States. One team arrived in New York, another in Florida, both by submarine. Their goal was to sabotage the United States' war efforts. They came armed with explosives and money, with the intent to spend at least two years sabotaging American industry.

The saboteurs' mission was unsuccessful. Within a couple of weeks of their arrival, federal authorities had arrested all of them. Of the eight men arrested, six were sentenced to death.

The first two cases discussed below deal with alleged treason committed by U.S. citizens with regard to the German saboteurs. The third case discussed deals with an American citizen of Japanese descent who committed treason against the United States during World War II.

Cramer v. United States (1945)

Anthony Cramer was born a German citizen and fought for the German Army against the United States in World War I. He moved to the United States in 1925 and became a U.S. citizen 10 years later.

Cramer and Werner Thiel, a German citizen, met while living in the United States. They worked and lived together at times and started a business together. Thiel moved back to Germany in 1941 during World War II, while Cramer stayed in the United States.

In 1942, Cramer received a "cryptic note" under his door that instructed him to go to Grand Central Station in his home state of New York. When he arrived, Thiel appeared.

Cramer was apparently surprised to see Thiel, as he thought his friend was still assisting Germany in its ongoing war effort. Cramer denied that Thiel told him about his mission to sabotage the United States' war efforts. Cramer testified that he asked Thiel how he had gotten to the United States and whether Thiel had taken a submarine to get there. Thiel apparently refused to give him a straight answer.

Cramer and Thiel met three times in total. During their second meeting, Cramer learned that Thiel had brought $3,600. Although Thiel did not reveal that he had received the money from the German government, he told Cramer that one could get money from Germany if they had the "right connections."

Thiel owed Cramer $200 from a previous debt. He gave the $3,600 to Cramer and told him to take $200 to pay off the debt. Cramer ultimately stored most of Thiel's remaining $3,400 in a safety deposit box.

Soon after, the FBI arrested the German saboteurs, including Thiel. Subsequently, federal authorities arrested Cramer and several other people due to their alleged treason for assisting the German saboteurs.

Cramer's defense at trial was that although he met with Thiel several times, he did not intend to betray the United States. He also claimed he did not know Thiel's plan to sabotage the United States. He said he met with Thiel because he was an old friend and remembered that Thiel owed him $200.

Additionally, Cramer argued that the prosecution's charged overt acts were insufficient to sustain a guilty verdict for aiding and comforting an enemy. Specifically, he argued that the Constitution required two witnesses to testify about the overt acts and that the acts must "openly manifest treason on their face."

The government argued that the "overt acts" prong of the treason clause only required proof of steps taken in furtherance towards the conspiratorial aim. In its view, whether the overt act was innocuous on its own was irrelevant.

Federal agents had witnessed the meetings between Cramer and Thiel. They testified as to the overt act of the meetings between the two. Additionally, one of the saboteurs who received a prison sentence rather than the death penalty testified in the case.

The jury found Cramer guilty, and the trial judge sentenced him to 45 years in prison plus a $10,000 fine. Although the jury found Cramer guilty of treason, the trial judge did not sentence him to death. The judge wrote that Cramer was not aware that Thiel and the others had explosives and other means of destroying U.S. property. The judge also wrote that Cramer had, at most, a "vague idea" that Thiel had come to the United States on behalf of the German government to frustrate the war effort.

The judge noted at Cramer's sentencing, however, "If there were any proof that they had confided in him what their real purposes were, or that he knew, or believed what they really were, I should not hesitate to impose the death penalty."

The Court of Appeals for the Second Circuit affirmed the conviction, and the Supreme Court granted review of the case.

Justice Robert Jackson, writing for the 5-4 majority, created the modern interpretation of the relationship between an overt act and giving aid and comfort to the enemy. It does not matter if the person who made the overt act had a "treasonous intent." Instead, what matters is whether the overt act actually gave aid and comfort to the enemy.

The Court held that Cramer's meetings with Thiel did not provide him with aid and comfort. Justice Jackson wrote that Thiel's "[m]eeting with Cramer in public drinking places to tipple and trifle was no part of the saboteurs' mission and did not advance it. It may well have been a digression which jeopardized its success." Because of this, the witness testimony did not show he had given aid or comfort to the saboteurs. Therefore, the Court overturned Cramer's conviction.

Cramer, therefore, stands for the proposition that the function of an overt act in the context of a treason prosecution is that it shows an action by the accused that actually provided aid and comfort to the enemy.

Put another way, an overt act is a separate and distinct element of the crime of treason. To prove a "sufficient" overt act, the government requires two witnesses to testify to it. Intent can be inferred from the totality of the circumstances surrounding the overt act.

Haupt v. United States (1947)

In Haupt, the Supreme Court upheld a treason conviction for the first time. There, the Court held that a father's role in helping his son—a German spy—was for a treasonable purpose, even though the acts could be viewed as common things a parent would do for their child.

Hans Haupt was the father of Herbert Haupt. Hans was a German national who had obtained U.S. citizenship. Herbert was also a German by birth who became naturalized as a U.S. citizen.

In 1941, Herbert began training for espionage work with the German government. He was one of the saboteurs who arrived in America in 1942 via submarine. He was specifically instructed to go to Chicago, obtain a motor vehicle, get a job at his former employer (which made parts for bombs), and report information back to Germany.

Six days after arriving in Chicago, federal authorities arrested Herbert. The authorities took his father, Hans, into custody and questioned him.

The government ultimately charged Hans with treason, including 29 overt acts of providing aid and comfort to an enemy. It argued that, with knowledge of his son's plot to sabotage the United States' war effort, Hans did the following:

• Gave him shelter
• Assisted him with finding a job at the bomb parts manufacturer
• Assisted him in acquiring a motor vehicle

At trial, Hans argued that the overt acts charged did not rise to acts of treason. Instead, he argued each one was an act any parent would take for their child if they could. He described them as "commonplace, insignificant and colorless, and not sufficient even if properly proved to support a conviction."

The jury convicted him of treason, and the judge sentenced him to life in prison and a $10,000 fine. The Seventh Circuit Court of Appeals affirmed, and the Supreme Court took the case for review.

Justice Jackson again wrote the Court's majority opinion. He reiterated the Court's holding in Cramer, where it held that "the minimum function of the overt act in a treason prosecution is that it show action by the accused which really was aid and comfort to the enemy." He then added that it faced a different question in the present case: whether Hans took his actions because of "adherence to the enemy." It continued by noting an act that aids or comforts an enemy "may nevertheless be innocent of treasonable character."

Continuing to compare Cramer and the case before it, Justice Jackson wrote:

"[In Cramer] the only proof by two witnesses of two of the three overt acts submitted to the jury was that the defendant had met and talked with enemy agents. We did not set aside Cramer's conviction because two witnesses did not testify to the treasonable character of his meeting with the enemy agents. It was reversed because the Court found that the act which two witnesses saw could not on their testimony be said to have given assistance or comfort to anyone, whether it was done treacherously or not. To make a sufficient overt act, the Court thought it would have been necessary to assume that the meeting or talk was of assistance to the enemy, or to rely on other than two-witness proof."

The Court continued:

"Here, on the contrary, such assumption or reliance is unnecessary-there can be no question that sheltering, or helping to buy a car, or helping to get employment is helpful to an enemy agent, that they were of aid and comfort to Herbert Haupt in his mission of sabotage. They have the unmistakable quality which was found lacking in the Cramer case of forwarding the saboteur in his mission. . . . No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of this mission and his instructions, they were more than casually useful; they were aids in steps essential to his design for treason. If proof be added that the defendant knew of his son's instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear."

The Court held that the overt acts charged were sufficient to support the charges in Hans' indictment. Therefore, it sustained his conviction.

Kawakita v. United States (1952)

The Kawakita decision stands for the idea that an American citizen owes continued allegiance to the United States, regardless of whether they are a dual citizen.

The case involved Tomoya Kawakita, a citizen of the United States by birth and a Japanese national due to his parents' heritage and Japanese law. He obtained a U.S. passport, which required him to take an oath of allegiance to the United States. Subsequently, he traveled to Japan.

While Kawakita was in Japan, World War II began. The war prevented him from traveling back to the United States. After he turned 18 in Japan, he changed his registration from American to Japanese and began to support the Japanese war effort.

Kawakita began working as a translator for a private mining company that was important in Japan's war efforts. American prisoners of war were sent to work at the company. Kawakita allegedly "brutally abused" the American prisoners sent to the company.

After Japan surrendered, Kawakita registered as an American citizen. He swore he was a U.S. citizen and that "he had not done various acts amounting to expatriation." He ultimately returned to the United States.

Shortly after returning to the United States, a former prisoner of war recognized Kawakita. Authorities arrested him, and he was indicted and convicted of treason.

Over 30 American ex-prisoners of war testified about Kawakita's abuses during World War II. At his trial, Kawakita argued that he had renounced his American citizenship and was expatriated. Therefore, he argued that he could not commit treason because he was not an American citizen.

After his trial, the judge gave the following instructions to the jury:

• If Kawakita had lost his American citizenship before he began abusing the prisoners of war, the jury must acquit him. Even if he committed the overt acts charged, he would not owe a duty of allegiance to the United States if his American citizenship had terminated before he abused the prisoners.
• If Kawakita did not perform the overt acts willingly or voluntarily, the jury should acquit him. In other words, if the Japanese government compelled him to act, and he did so only because he had to either due to compulsion or his job duties required him to do so, they should acquit him.
• If the jury determined beyond a reasonable doubt that Kawakita was an American citizen when he abused the prisoners, he owed "the same duty of allegiance as any other citizen."
• Even if the jury concluded Kawakita was an American citizen when he abused the prisoners, it must acquit him if, at that time, Kawakita "honestly believed he was no longer" a U.S. citizen. This was because if he didn't think he was a U.S. citizen, he could not have committed the overt acts with the required treasonous intent.

The jury concluded that Kawakita remained an American citizen during the war. Therefore, he owed an allegiance to the United States. By abusing the prisoners of war, he had provided aid to Japan, an enemy of the United States. Therefore, the jury found him guilty of treason. Kawakita was sentenced to death.

His case eventually reached the Supreme Court. There, Kawatika argued that dual citizens can only be guilty of treason in the country where they reside rather than the other country in which they are citizens. His argument continued that because he was in Japan during the war and when he committed the overt acts, he was an enemy of the United States and, therefore, could not have committed treason.

The Court held that whether Kawakita renounced his U.S. citizenship was a proper question for the jury to consider. It affirmed the guilty verdict because there was sufficient evidence supporting the jury's conclusion that Kawakita remained a U.S. citizen during the relevant time period.

The Court also held that the definition of treason in Article III does not contain a territorial limitation. In other words, American citizens can commit treason abroad, even if they are dual citizens.

In addition, the Court recognized that, in some situations, a dual citizen may be compelled to provide aid and comfort to an enemy of the United States. For example, a U.S. citizen in a similar situation to Kawakita may be compelled by another country's laws to aid the ongoing war effort against the United States. If they do so knowingly and voluntarily, that could be treason. However, if they do so simply because they are compelled to, it likely would not rise to treason.

Applying this rationale to Kawakita's case, the Court concluded that the jury held him accountable for performing the overt hostile acts, and Japan did not require him to perform them.

In short, the Court held that American citizens owe allegiance to the United States wherever they reside, regardless of whether they have dual citizenship.