Talk of “treason” is in the air. President Donald Trump has floated the idea that Rep. Adam Schiff committed treason for allegedly misrepresenting the details of the president’s call with the Ukrainian prime minister. Many people, including a former CIA director, have questioned or outright suggested that president Trump has committed treason for a variety of things, including his ties to Vladimir Putin.
While these calls of treason are mainly motivated by political differences, there is a defined federal crime of treason. In this Deep Dive, we’ll take a look at how treason is defined, who has been tried for treason, and what, if anything, could come from today’s accusations of treason.
Treason is the only federal crime that is defined by the Constitution. In Article III, Section 3, the Constitution says:
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.
While the Constitution gives Congress the power to punish treason, it limits how Congress can define it. This limitation can be seen in the U.S. Code (18 U.S. Code § 2381), which takes the constitutional definition of treason, adds some details, then imposes a punishment:
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.
The legal definition of treason is very narrow. It is limited to circumstances where the U.S. is at war with another nation or has clearly defined enemies. It specifically excludes factors such as disagreeing with the president or having foreign policy views that are friendly towards another nation.
Because of the high bar to convict someone of treason, there have been few trials involving this charge throughout U.S. history. Only 17 individuals have been convicted of treason.
Perhaps the most famous person convicted of treason was John Brown, the man who led an 1859 slave revolt in Virginia. The most recent convictions for treason came during the World War II era. U.S. citizens who had assisted the Nazis or Japanese during this time, including one soldier who defected to Germany, were convicted of treason and imprisoned. Many of these individuals were later pardoned.
There has been one treason trial for a political figure in the United States, but it was unrelated to his official actions in office. Vice President Aaron Burr was tried for treason in 1807, two years after he let office. President Thomas Jefferson had pressed for Burr to be charged with treason for his alleged role in a scheme to form a new nation in the western United States. However, prosecutors at his trial failed to produce the witnesses to the alleged crime as required by the Constitution so the presiding judge acquitted Burr.
In recent years, there have been treason charges during the military actions in the Middle East. A federal court in California charged Adam Yahiye Gadahn with treason in 2006. He was the English-language spokesman for Al-Qaeda. However, Gadahn was never arrested or brought to trial. Instead, the U.S. government killed him during a 2015 drone strike.
Talk of treason has been revived in discussions over the actions of the president and his critics.
On September 30, President Trump tweeted, “Rep. Adam Schiff illegally made up a FAKE & terrible statement, pretended it to be mine as the most important part of my call to the Ukrainian President, and read it aloud to Congress and the American people. It bore NO relationship to what I said on the call. Arrest for Treason?”
This has reignited an examination of what constitutes treason, but it is far from the only time that this charge has been brought up during the Trump Administration. The president has claimed that other individuals opposing him were committing treason, and observers have also levied the same charge against him.
In late September, Trump’s rival for the GOP presidential nomination in 2020, former Massachusetts Gov. William Weld, suggested that Trump had committed treason. Weld said, “Talk about pressuring a foreign country to interfere with and control a U.S. election. That's not just undermining democratic institutions. That is treason. It's treason pure and simple, and the penalty for treason under the U.S. code is death. That’s the only penalty.”
In 2018, former CIA Director John Brennan said, “Donald Trump's press conference performance in Helsinki rises to & exceeds the threshold of 'high crimes & misdemeanors. It was nothing short of treasonous.”
While people can make claims about treasonable activities, as seen above it is very hard to make a case that such activities meet the definition of “treason” under the U.S. Code. Ultimately it is up to attorneys working for the federal Justice Department to determine whether or not to bring charges of treason against someone. There is little chance they will do so for any of the actions in the Trump Administration or Congress that have been described as being treasonous.