On Treason and Traitors

On April 9, President Donald Trump signed a presidential memorandum targeting a former government official for critical statements made about the president. In his order directed at  Miles Taylor—the former Department of Homeland Security executive and author of “A Warning” (initially published anonymously)—Trump condemned Taylor for sharing classified information and peddling “falsehoods and fabricated stories.” He accused Taylor of violating the Espionage Act and invoked treason, directing the Department of Homeland Security to open an investigation into Taylor’s time working there. Trump’s memo explains:

Where a Government employee improperly discloses sensitive information for the purposes of personal enrichment and undermining our foreign policy, national security, and Government effectiveness—all ultimately designed to sow chaos and distrust in Government—this conduct could properly be characterized as treasonous . . .

No, it cannot. The history of treason is long, complex, and nuanced. The Framers understood it narrowly, fearing that undisciplined application would subject it to political abuse. Accusing one’s political enemies of treason may have become banal, but the legal label retains its sharp rhetorical edge—making it a dangerous game to invoke it in ways divorced from its true meaning.  This post clarifies what “treason” is—and isn’t—for the sake of insulating American political discourse from its misapplication.

A Brief History of the Crime of Treason

Treason is the only crime specifically defined in the Constitution (and it is one of only three explicitly mentioned in the document). However, since 1789, federal charges of “treason” have been brought fewer than 30 times. Its historical legacy in Great Britain—a legacy that led the Founding Fathers to be wary of its potential as a tool to suppress political dissent—is a violent one. Beginning in the late thirteenth century, the convicted traitor was dragged along the ground by a horse to the place of execution, partially hanged, disemboweled, and castrated. Only then would he be decapitated, and his body cut into quarters and displayed for the public. This punishment was not formally abolished in Great Britain until 1870.

This draconian punishment perhaps derives from the view that treason is crime not against just one person or private property, but against the sovereignty of the state—whether embodied by the king or, ultimately, the public in a representative democracy; and specifically the security and safety of everyone in it. For centuries in Great Britain, treason was one of only a handful of crimes that a king or queen could pardon only after fully and publicly describing the circumstances of the crime (the only other two such crimes were murder and rape). This requirement was imposed by Parliament to deter the monarchy from granting pardons for these exceptionally dangerous crimes.

While the Founders may have been wary of a government’s abuse of this charge, they still retained it—albeit with caveats that limited its use (as discussed below, conviction requires at least two witnesses or a confession, evidentiary requirements nonexistent for other crimes). The new country was surrounded by potential hostile adversaries, and America’s population was far from united in its animosity towards the British crown. The risk of coordinated efforts by “disloyal” Americans to undermine the fledgling democracy—one with hardly any standing military to defend itself—was high enough to warrant keeping treason on the books as a capital offense (though without the drawing and quartering).

As Supreme Court Justice Robert Jackson wrote 80 years ago: “the basic law of treason in this country was framed by men who . . . were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself.”  It was indeed so rare and severe a formal accusation that those criminally charged with it have long been unsympathetically condemned in the court of historical and public opinion: Benedict Arnold, Aaron Burr (acquitted), abolitionist John Brown (charged with Treason by the Commonwealth of Virginia for his attack on the federal armory at Harpers Ferry just before the Civil War), to name a few. 

Diluting and Misconstruing the “High Crime of Treason”

Today, the crime’s significance is diluted when public officials accuse other public officials or private citizens of being a “traitor” or of committing “treason” outside the bounds of a criminal courtroom for reasons of political animosity or policy disagreement. Indeed, President Trump’s most recent invocation of treason is nothing new. In his first term, he made liberal use of the label. In his press conferences, Fox News interviews, and social media tweets, he accused the New York Times; an FBI agent; Democrats in Congress; President Obama; Rep. Adam Schiff (D-Calif.) and Rep. Nancy Pelosi (D-Calif.) during his first impeachment investigation; and others.

During his second presidential campaign for president, Trump returned to this tactic, accusing former Chairman of the Joint Chiefs of Staff General Mark Milley of treason for his actions in the wake of the Jan. 6, 2021 attack on the Capitol (because Milley called his counterpart in China to reassure them that  U.S. was not going to attack). This accusation had direct consequences: Milley faced actual death threats from white supremacists.

More recently, Trump ally Elon Musk accused Sen. Mark Kelly (R-Ariz.)—a former astronaut, retired Navy aviator, and decorated combat veteran—of being a “traitor” for visiting Ukraine in support of its fight against Russian invasion. Trump has shared social media posts on his Truth Social account that accuse federal judges of “sedition and treason” for issuing injunctions halting the implementation of various executive orders.

Republicans are not the only ones carelessly applying the label, either for its rhetorical potency or as an actual call to prosecute. Before he was the chair of the Democratic National Committee, Ken Martin publicly called for a prosecution of Trump in June 2020 for allegedly ignoring intelligence reports that Russia was paying bounties to the Taliban for attacks on Americans in Afghanistan. Trump, Martin said, “should be immediately impeached and then put on trial for treason. His actions led to the deaths of American soldiers. He is a traitor to our nation and all those who have served.”

Only slightly less concerning is the growing number of private citizens with large followings using their platforms to label politicians as traitors: Trump confidant and former advisor Roger Stone also accused Sen. Kelly of treason to his more than 800,000 followers on X; Bruce Springsteen accused Trump of the same from the stage at his rock concert in Manchester, UK.  Its use may not be intended as anything more than attention-grabbing rhetoric; but even as mere hyperbole, the label carries significant stigma and generates hugely polarizing public opinions about both the accused and accuser. Even if claimed in earnest, the application of the label usually misconstrues the legal scope and elements of the offense.

I am far from the first person to notice the unusual but increasing use of the label. Writing in 2021, University of California, Davis law professor Carlton F.W. Larson summarized what he saw as a surge in public mentions and accusations of “treason” during Trump’s first term in office:

Treason, for lack of a better word, is now “hot” again. Ever since Donald Trump publicly encouraged Russia to hack the DNC’s emails, allegations of treason have hovered over Trump and his campaign, pushing the issue into a bright national spotlight. With each new sordid revelation, the stench of perceived disloyalty grows stronger. For many on the left, the notion that Donald Trump is a traitor isn’t just a suspicion, it’s an established fact.

What Does the Law Say?

Per Article III, Section 3 of the U.S. Constitution:

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 careful wording of the section suggests that the Framers wanted to ensure that neither political pressure nor the passions of the moment would lead to a later Congress enacting a treason statute that could be turned against partisan opponents under the pretext of betraying one’s country.

In 1948, Congress codified this constitutional rule into a federal statute. According to 18 U.S.C.  § 2381:

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.

There is a dearth of case law from the federal courts interpreting the treason clause. In 1945, Justice Jackson, writing for the majority of the Supreme Court in a five-four decision in Cramer v. United States, stated that this “little clause is packed with controversy and difficulty.” He explained that:

Historical materials aid interpretation chiefly in that they show two kinds of dangers against which the framers were concerned to guard the treason offense: (1) perversion by established authority to repress peaceful political opposition, and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence. The first danger could be diminished by closely circumscribing the kind of conduct which should be treason — making the constitutional definition exclusive, making it clear, and making the offense one not susceptible of being inferred from all sorts of insubordinations. The second danger lay in the manner of trial and was one which would be diminished mainly by procedural requirements — mainly, but not wholly, for the hazards of trial also would be diminished by confining the treason offense to kinds of conduct susceptible of reasonably sure proof. The concern uppermost in the framers’ minds, that mere mental attitudes or expressions should not be treason, influenced both definition of the crime and procedure for its trial.

Moreover, Justice Jackson emphasized that the Constitution’s text—and the intent behind it—assumed a high threshold of wrongfulness in the nature of the treasonous act. He wrote:

Intellectual or emotional sympathy with the foe, or merely lack of zeal in the cause of one’s own country . . . was not the kind of disloyalty the framers thought should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was ‘giving them aid and comfort.’

Critically, according to the opinion, “giving aid and comfort” means more than merely lending a sympathetic ear to insurrectionists: It is “an act which weakens or tends to weaken the power . . . of the country to resist or to attack the enemies of . . . the country.” 

In sum, the Supreme Court interpreted treason as a very narrow band of misconduct:

A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but, so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.

Taken together, the law and precedent suggests that treason could be committed in two possible ways: First, a person owing allegiance to the U.S.—for example a U.S. citizen—enlists in the army of another nation (or non-state terrorist organization) against whom the U.S. is fighting in an armed conflict, thereby “levying war against” the United States; second, a person owing allegiance to the U.S. adheres to the enemy and renders him aid and comfort.

Under either theory of the offense, the accusation must be proven by at least two witnesses attesting to the same overt act or a confession by the defendant.

This narrow and high bar for treason under U.S. law is striking when contrasted with the treason law of non-democratic countries. For example, dual U.S.-Russian citizen Ksenia Khavana was convicted by a Russian court of treason and sentenced to 12 years in prison in 2024 for donating $51.80 to a Ukrainian charity (in April, she was released back to the United States in a prisoner exchange).

In contrast, the last American convicted of treason offenses (whose conviction was affirmed on appeal) was Herbert John Burgman in 1949, sentenced to confinement for six to 20 years for broadcasting Nazi propaganda during World War II from Germany. 

Unless we have a clear cut case of joining a foreign nation’s military or non-state armed group—like American citizens who have joined the Islamic State group in its war against the U.S.—the prosecution needs to make the preliminary argument that the defendant “adhered to” and aided an “enemy” of the United States. The plain reading of both the treason clause and 18 U.S.C. § 2381 would suggest that an enemy is a party levying war against the United States. This constrained definition of “enemy” has long historical roots: For more than 600 years, it has been consistently interpreted by English and later American courts to mean a foreign entity with whom we are in a state of open armed conflict. Limiting the definition of enemy in this way is consistent with the narrow applicability of the crime intended by the Framers and described by the Supreme Court.

No American charged with treason has been convicted for conduct related to anything other than direct support of an enemy at war with the United States (for example, the Confederacy in the U.S. Civil War, the Japanese Empire and Nazi Germany in World War II). Thus, if the U.S. is not in an armed conflict with another belligerent party, it is factually and legally impossible to be guilty of treason. As Larson points out in this blog post about alleged collusion between Trump and Russia in his first term, “working with foreign countries to harm the United States is not part of the definition.”

Crimes, but Not Treason

In conclusion, the following acts are often the basis for claims of treason; they might be unlawful (violations of some other statute, like espionage) but are not “treasonous,” and the perpetrators are not “traitors” no matter how disloyal they may seem to the public or to the president:

• Careless leaking of classified, top-secret, war plans onto the internet or an unsecured messaging app (this is a possible crime, but not treason);
• A lawfully initiated investigation into a political leader’s “official” actions (this does not qualify as any crime);
• Being “un-American" (this is not definable, much less a crime);
• Expressing sympathy, or donating time and money, to the victims of an ally’s war effort (this is a form of protected speech); or
• Undermining American economic interests for the sake of another nation out of incompetence (not a crime) or corruption (possibly a crime, but not treason).

Reckless and rhetorical accusations of “TREASON!!” are almost always prosecutions in the court of public opinion. The accusations skip past the factual requirements that would meet the actual legal elements of the crime in a court of law.

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Whether one is the president or a private citizen with a large social media bullhorn, careless and mendacious accusations dilute the seriousness of the actual offense that the Framers of the U.S. Constitution were so careful to define. Such invocations also needlessly escalate the animosity of political discourse, hindering true debate and chilling legitimate First Amendment protected dissent. Expanding the accepted understanding, for example, could allow an administration to accuse a private university of treason for enrolling foreign students, or label a lawyer a traitor for defending an undocumented immigrant. In some cases, the label can incite physical violence, or at least, the threat of it. Its hyperbolic use serves to inflame passions (of both the public and elected officials) when cool heads ought to prevail. Treason is a harsh label for harsh acts, with harsh consequences; it should be reserved for the things that matter and excised from the lexicon of political disagreement.