Benedict Arnold was a hero of the American Revolutionary War; he helped capture Fort Ticonderoga from the British in 1775 and played an important role in the surrender of a British general in 1777. But he became disillusioned by what he perceived was a lack of recognition for his service and, in 1779, colluded with the British to help them capture the U.S. base at West Point in exchange for money and a lucrative post with the British army. The plot was discovered and Arnold fled to New York (joining the British army), but his attempt to thwart the American Revolution earned him the status of the most-reviled traitor in U.S. history.
Less than a decade later, the crime of treason would be ensconced in the U.S. Constitution, perhaps with Arnold's treachery still fresh in the minds of the Founding Fathers. But what does federal law say and what specifically constitutes an act of treason? We explore this serious crime against the government in more detail below.
Treason: What the Constitution Says
The fact that treason is the only crime explicitly defined in the U.S. Constitution speaks volumes about just how vulnerable to attack the constitutional Framers considered the new nation. The relevant section on treason (Article II, Section 3) states the following:
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.
One of the reasons for adding the crime of treason to the Constitution was to limit the ability of Congress to define or modify it for political purposes (although the Constitution states that "Congress shall have the power to declare the punishment" for treason). The Framers were well aware that in Britain treason charges often were levied against political enemies in an effort to silence opposing viewpoints, so they wanted to make sure it wasn't similarly abused in the U.S.
The Statutory Prohibition on Treason: Overview
The United States Code (18 U.S.C. § 2381) repeats the constitutional definition of treason and outlines the range of punishments upon conviction. Specifically, the statute states that anyone found guilty of treason:
...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.
As with any other crime in our judicial system, the prosecution must prove the necessary elements in order to get a conviction for treason. These include the following:
- The accused supported an enemy of the United States or undermined the United States without necessarily supporting a specific enemy;
- The accused had the specific intent to betray one's country; and
- The accused must have committed an "overt act" of treason (in other words, an active attempt to commit treason and not just mere intent).
As far as evidence of treason is concerned, it may be proven in one of two ways (per the Constitution):
- Testimony by two eyewitnesses to the same overt act; or
- Confession given in open court (a confession to the police isn't sufficient).
Treason Throughout U.S. History: Examples
Treason charges have been filed in the U.S. only about 30 times, resulting in roughly a dozen convictions. Below are some examples of treason cases:
- The Whiskey Rebellion (1794) -- Several farmers led an armed rebellion against the newly imposed whiskey tax. Two men were convicted, but later pardoned by President George Washington.
- Aaron Burr (1807) -- The third U.S. vice-president, famous for killing first Treasury Secretary Alexander Hamilton in a duel, conspired to invade Mexico and form an empire that would include parts of the United States. Burr was acquitted because there was no "overt act" beyond the conspiracy to do so.
- Thomas W. Dorr (1844) -- Dorr led a rebellion against the state of Rhode Island, protesting against the state's lack of a bill of rights. He was elected governor through a dubious process (resulting in two administrations for about a year), but was convicted of treason by the U.S. Supreme Court and sentenced to life in prison.
- Mildred "Axis Sally" Gillars (1949) -- The American broadcaster was hired by the German Nazi government to broadcast propaganda during World War II. She was captured in Germany, found guilty of treason, and sentenced to 10 to 30 years in prison in 1949, serving 11 years before her release.
Get a Free Review of Your Criminal Case
Treason is a very serious but rarely charged federal crime that can result in the death penalty upon conviction. If you have been charged with treason, you probably already have legal counsel. But if you have questions about any other federal crimes, you can get started today with a free evaluation of your legal situation from a local attorney.