What article and section of the Constitution defines treason?
By Paul E Vallely MG, US Army (Ret)
LTG Tom McInerney USAF (Ret)
U.S. law defines treason as a high crime that poses an extreme threat to the nation, a massive, dangerous betrayal. The Constitution of the United States. Article III, Section 3: Treason against the United States shall only be committed against them or in response to their Enemies, providing them with aid and comfort. Treason is the only crime defined in the United States Constitution. It was narrowly limited to avoid countless notorious past abuses perpetrated by governments. In debates during the creation of the Constitution, the main concern was not about drafting a law that would allow the government to prosecute traitors. It was to prevent “the numerous and dangerous excrescences (monstrosities)” that had been a feature of English and European laws of treason. The founding fathers wanted to ensure that political divisions within the country did not escalate into treason charges, with death as the ultimate penalty for the dissenters.
Debate and disagreement were not considered to be treason. They were welcomed. Americans often achieved better solutions than either side had proposed. Our motto was, “Out of many, one.” – E pluribus unum. We put that on the Great Seal. We love that motto. Some, including Obama, prefer “In God we trust,” the slogan we now put on our money. That came out of the Cold War. Today it seems outdated, perhaps too close to Islam’s inshallah, where God sets the outcome. It also seems ironic to worry that only God can save us from the government in a time of rampant inflation and plundering of the treasury. In any case, the Judeo-Christian God gave Americans both teachings and free will. It is up to us to fix things. God won’t do it for us, but he will help save us if we follow his commandments. God Bless America.
As for treason, Article 3, Section 3 of the United States 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.” Also, no treason charge may be brought when the proof is just one person’s word against another.
This wording in the Constitution prevents Congress from expanding the definition of treason or lowering the standard of proof for prosecution. This is a clear departure from earlier treason laws in several ways. First, it turns the focus of treason from a largely internal matter to an external one, dealing with foreign enemies. But now we have been infiltrated by external enemies who conduct war within and against the United States.
Levying War
The first act in the Constitution that can be considered treason against the United States is “levying war.” War against America is now internal as well as external threat. However, the most famous trial for treason in United States history shows how narrowly this is interpreted.
The case of Ex parte Bollman & Swarthout (1807) dealt with two conspirators in Aaron Burr’s alleged plot to overthrow the government in New Orleans by force. In this case, the court held that recruiting men, making plans, and making maps to overthrow the government was not enough for a conviction of treason. Instead, there needed to be an actual assemblage of troops intending to start the overthrow.
Aid and Comfort: The second act the Constitution defines as treason is “Adhering to their Enemies,” giving them “Aid and Comfort.” This has also been narrowly construed. A person may adhere to the enemy by being a sympathizer or favoring their cause, but if no action can be considered aid or comfort, then there is no treason. There must be both a desire to help the enemy and an overt act. In one of the most sensational trials in American history, Julius and Ethel Rosenberg were convicted for their role in passing atomic secrets to the Soviets during and after World War II. They were both executed, but NOT for treason, for espionage. The “aid and comfort” part of treason law has rarely been used, only first in 1947. The cases tried have all been minor and, well, odd. A father was tried and convicted for giving his son housing and an automobile, who later went to work in a defense plant where he committed espionage. The only American charged with treason against the U.S. since World II was Adam Gadahn, also known as Azzam the American. Before he could be tried, Gadahn was killed by a U.S. drone strike in Pakistan.
The Intersection of Treason and Politics Lacks Legal Clarity
“Treason doth never prosper: what’s the reason? For if it prospers, none dare call it treason.” Sir John Harrington, circa 1650.
For many years, the radical left has been working to normalize treason, to make it socially acceptable. Jane Fonda and John Kerry (well-connected leftist “ruling elites”) had the spotlight in the Vietnam era. While still a serving Naval officer during the war, Kerry met with the enemy to support them in Paris. Fonda posed on an antiaircraft gun in Vietnam, doing a photo op to support shooting down our planes. Neither was punished, and both became folk heroes for the Marxist left. Meanwhile, our brave soldiers, often young draftees, were spat upon when they returned home and called “baby killers” by the left-leaning (now Fake News) media.
America has been shredded by embedded enemies within who weaken us in myriad ways. China and the world have shifted from kinetic war (e.g., bombs and nukes) to “Unrestricted Warfare” with bioweapons where American officials (e.g., Biden) have been bribed or coopted. We are losing this new form of war. Our nation suffers managed decline, invasion across our open borders, lockdowns, crime, and more. We now lose more young Americans to Chinese fentanyl yearly than in the Vietnam War. We suffer lies, stolen elections, and a two-tier justice system. We (and the world) suffered genocide and lockdowns from bioweapons.
History of Treason
Rarity – The Founding Fathers succeeded in their goals. As a result, treason trials in the United States are rare. Since the ratification of the Constitution, there have been fewer than forty Federal treason trials. Treason as a crime has existed for as long as there have been governments. The broadest meaning of treason is attacking or betraying a governmental authority to which one owes allegiance. The word originally comes from the Latin verb tradere, which means “hand over.” It refers to Christians who handed other Christians over to the Roman authorities. The pre-modern definition of treason meant actions against the king, usually in the context of a kingdom’s internal politics. Treason could include criticizing the monarch, siding with a faction that opposed the monarch’s policies, or even sleeping with the king’s wife. Queens have been executed for adultery as a treasonous act. It was common in English politics to have both sides accusing the other of treason, with trials, persecutions, and executions of dissenters by those in power.
Treason Crimes & Charges (Summary) There are two primary ways to commit treason:
- Levying war: This does not mean one must declare war to commit treason. It also includes violent opposition to the conducting of public laws. ‘Forcible opposition’ usually requires the actual use of force by more than one person, an ordinary person, to prevent a law from being enforced.
- Providing aid and comfort: This can include offering financial assistance or harboring a soldier who is an enemy of the country. Any act that encourages the enemy’s hostile designs or weakens the US and provides aid and comfort.
To prove treason, the prosecution must have either a confession or two witnesses who testify to the same overt act by the defendant. An overt act is defined as one that shows criminal intent and supplies the ability to commit a crime. Overt acts do not have to be a crime itself. Many types of actions can be overt, treasonous acts. Some of these include making online posts and supplying weapons and ammunition. The main thing to remember is whether the person took the action intending to conduct treason. A charge of treason must specify relevant overt acts, including where they took place. Not all participants need to commit the same action. Different people can commit overt acts as part of a single treason plan. If the government has alleged several overt acts, it must only prove one with two witnesses.
The testimony from two witnesses must prove the overt act, and the intent to betray can be shown just like with any other crime. The earlier chapter discussed sentencing. Case law is scant. Treason is related to other federal crimes, and more than one criminal statute may apply to the same conduct. So, something that is not proven as treason can constitute another type of offense:
· Espionage is obtaining classified information related to national defense for use by a person from another country. If you help a US ally, the charge would not be treason but espionage.
· Terrorism: One of the significant differences between terrorism and treason is that terrorism statutes can apply to any foreign national or citizen and do not require that the US be involved in a war. Since 9-11 and a flood of legislative intensity, it is still unclear what the limits are on terrorism or if it might overlap with treason. Soccer moms protesting at school board meetings are treated as terrorists, as are patriot groups, some ministers, and all the Jan6 prisoners.
· As a working assumption, we’ll assume anyone (citizen or foreign) can be subject to terrorism charges.
· Could getting visas for the foreign 9-11 terrorists be considered treason?
· What if a U.S. citizen, perhaps even a federal agent, helped to enable a domestic attack by recruiting or training people, getting them visas or weapons, leaving a border open, or bribing officials? Would that person be subject to treason charges?
· Obviously, many Federal Agents (so many that the FBI is blocking the release of the videos) overtly enabled the January 6 event, a protest which some term an insurrection and others a coup. Whatever it was, could a Federal Agency disrupting or inflaming a political or other public event be considered treason if violence resulted?
· Can violence or property destruction by paramilitary groups like Antifa and Black Lives Matter be considered treason?
· Seditious conspiracy consists of trying to overthrow or destroy the government by force. This does not require that the defendant owe allegiance to the US.
· Conspiracy to levy war: This is a precursor to treason but does not require that people be assembled and ready to use force.
We are at a crossroads in America. We do not seek retribution of the guilty but, they must be held accountable for the actions to dismantle America through treasonous activities.
