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Can You Still Be Prosecuted For Treason In The United States?

by | Jul 4, 2020 | Criminal Law, Federal Crimes |


On July 4, 1776, the Continental Congress met in Philadelphia, Pennsylvania and adopted the Declaration of Independence which declared the birth of the United States and the separation of the colonies of Great Britain.  This was a bold move, for every single one of the fifty-six men that signed that document could have been hanged, drawn and quartered for committing treason against the King of the United Kingdom.  Fortunately, the United States won the Revolutionary War and these leaders avoided this grizzly fate.  However, they did not forget the abuses of English law and the casual manner that the British authorities interpreted treason (a crime considered worse than murder).  Even opposition parties in Parliament that criticized the government were considered disloyal and traitorous.  As a result, the scope of treason was specifically restricted in the U.S. Constitution to prevent misuse of the crime by future generations.

Article III, Section Three of the United States Constitution states as follows:

  • “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.”

The constitution restrains the government in the following ways:

  • The scope of treason is limited to punishing a person for levying war against the United States or actually aiding and comforting its enemies. Treason does NOT include being sympathetic to the enemies without taking action, aiding “enemies” during peacetime, or advocating governmental overthrow without assembling a force capable of doing so.  However, the government is not prohibited from criminalizing conduct that affects the national security interests of the United States short of treason.  For example, a person may be charged and convicted of misprision (failing to report or concealing someone else’s act of treason), espionage (spying for a foreign nation), sedition (speech or conduct tending towards insurrection) or even terrorism-related offenses.  Julius and Ethel Rosenburg, two American citizens who were executed in 1953 for providing nuclear secrets to the Soviet Union, were convicted under espionage statutes, not treason, since it was easier to prosecute.
  • Two witnesses must testify to the same act of treason or else the verdict must be not guilty. Former Vice-President Aaron Burr was famously prosecuted for treason on the allegations of assembling an armed force to capture New Orleans and separate the western territories from the Atlantic states.  However, despite the full power of Burr’s political opponent Thomas Jefferson behind the prosecution, two witnesses never came forward to testify to the same overt act so the court acquitted him of all charges.
  • In old English law, a person convicted of treason were subject to “attainder” and “corruption of blood”, meaning that the person not only lost their life but also forfeited all of their property to the government (instead of being able to pass it to his or her heirs). Corruption of blood also meant that a person’s descendants could not inherit from the person’s ancestors because inheritance was prohibited from passing through the bloodline that included an attained person.  Attainder and corruption of blood are totally prohibited in the United States.

The Constitution does not “create” the crime of treason, but the U.S. Congress passed legislation prohibiting it as follows:

  • “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 and 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.” 18 U.S.C. §2381.

Treason is a rare criminal offense to prosecute because its elements are so restrictive.  First, the defendant must owe an allegiance to the United States, meaning that foreign nationals cannot be charged with this offense.  Second, “enemies” does not include any U.S. allies, even if the accused is spying for and divulging classified information to a friendly foreign government.  Third, giving “aid and comfort” to an enemy involves proving an affirmative act such as giving financial support or harboring enemy soldiers (beyond mere rhetoric) and it MUST be during wartime.  Like the Rosenburgs, many “treasonous acts” end up being tried by the government under lesser offenses such as espionage, sedition or conspiracy because the elements are easier to prove.

The crime of treason is not only a federal crime.  Nearly every state of the Union has a criminal statute penalizing traitorous acts against it.  Generally, these treason statutes are modelled closely after the requirements of the U.S. Constitution.  Michigan has a penal statute against treason that states:

  • “Any person who shall commit the crime of treason against this state shall be punished by imprisonment in a state prison for life. No person shall be convicted of treason unless upon the testimony of 2 witnesses to the same overt act, or on confession in open court.”  MCL 750.544.

Michigan was the first English-speaking government in the world to abolish the death penalty for ordinary crimes in 1846, but retained capital punishment for treason.  The Michigan Legislature removed the death penalty entirely in 1963, but no person had ever been tried for treason in the history of the state.

Treason has an interesting legal history in the United States, due in no small part to the fact that our country was founded by a group of men considered traitors by their sovereign at that time.  The U.S. Constitution stands for the proposition that criticism of the government and mere political discourse will not be considered treasonous during any time in our nation’s history because the principles of democracy and free speech will be preserved.  Although rare, a prosecution for treason should never be taken lightly and the accused should have a skilled criminal defense lawyer in their corner that will hold the government to the specific constitutional standards and the burden of having to prove guilt beyond a reasonable doubt.  The U.S. Constitution and the Declaration of Independence also stand for due process under the law, a right preserved for every defendant no matter what crime they are charged with.  Our law firm fights to preserve those rights every day and hold the prosecutor to their responsibilities under the law.  No one deserves anything less.

If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

Have a happy and safe Independence Day!


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