The Constitution's Treason Requirement: Proven By..

The Constitution of the United States defines treason as levying war against the country or adhering to and providing aid or comfort to its enemies. The Treason Clause sets forth requirements for proving treason, including the need for an overt act and treasonous intent. To convict someone of treason, the Constitution requires the testimony of two witnesses to the same overt act or a confession in open court. This safeguard aims to prevent the government from abusing treason charges for political gain. While treason cases are rare, the Supreme Court has clarified what constitutes levying war and aid or comfort. The Cramer case in 1945 addressed the evidentiary standard for treason, upholding the requirement of testimony from two witnesses.

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The definition of treason

Treason is the only crime that is expressly defined by the US Constitution. The Constitution identifies what constitutes treason against the United States and limits the offence to two types of conduct:

• "Levying war" against the United States.
• "Adhering to [the] enemies [of the United States], giving them aid and comfort".

The Constitution requires both concrete action and an intention to betray the nation before a citizen can be convicted of treason. This means that expressing traitorous thoughts or intentions alone does not constitute treason.

The Treason Clause provides that the offence may only be proven by "open confession in court", or on "the testimony of two witnesses to the same overt act". The "`overt act` requirement was designed to limit the kind of substantive behaviour that could be considered treasonous.

The Framers of the Constitution intended to define treason narrowly, after witnessing the English law of treason being used to cover many actions against the Crown. They wanted to make it challenging to establish that someone had committed treason, and to restrict Congress's power to change the definition of the crime and the proof needed to establish charges.

Since the Constitution's ratification, Congress has only brought treason charges 30 times. Few treason cases have ever reached the Supreme Court. Although there were several instances in early American history, the Court first sustained a treason conviction in 1947.

Requirements for conviction

The US Constitution defines treason as levying war against the United States or adhering to and providing aid or comfort to its enemies. The Constitution also outlines the requirements for convicting someone of treason, which include:

• The testimony of two witnesses to the same overt act: The accused can only be convicted if two witnesses testify to the same overt act of treason. This requirement protects against circumstantial evidence or the testimony of a single witness.
• Confession in open court: The accused must confess to the treasonous act in an open court. This requirement ensures that the confession is made publicly and can be verified.
• Concrete action and intent to betray: The Constitution requires both concrete action and an intention to betray the nation. Expressing traitorous thoughts or intentions alone is not sufficient for a conviction.
• Admissible evidence of intent: As seen in Cramer v. United States, the Court held that conversation and occurrences prior to the indictment could be admissible evidence when determining the defendant's intent.

It is important to note that treason is a unique offense in the US constitutional order, as it is the only crime expressly defined by the Constitution. The Framers of the Constitution were aware of the potential for abuse in treason charges, as seen in English law, and sought to put limitations in place to prevent this.

Historical treason cases

Treason cases have been rare in US history, with the FBI reporting that there have been fewer than 12 convictions for treason. However, there have been several notable treason cases throughout history, both in the US and internationally.

US Treason Cases

One of the most well-known treason cases in US history is that of Aaron Burr, who served as Thomas Jefferson's vice president. In 1807, Burr was tried for treason for allegedly plotting to seize land from Spain and Mexico and urging states to leave the Union. He was acquitted as the jurors found that prosecutors had to prove not just that Burr made plans to go to war but that he had actually gone to war against the United States.

Another famous case is that of John Brown, who was charged with treason against the Commonwealth of Virginia, along with conspiracy and first-degree murder after leading a raid on Harper's Ferry in 1859. Brown was found guilty and hanged.

The Jefferson County Courthouse in West Virginia has hosted two significant treason trials: the first was the trial of John Brown mentioned above, and the second was the trial of coal miner and union activist William Blizzard in 1922. Blizzard was accused of leading a march on Blair Mountain during the Battle of Blair Mountain, a union-led coal miner's strike. He was ultimately acquitted, and the case was seen as a victory for labour rights in West Virginia.

International Treason Cases

Internationally, there have been several notable treason cases. During World War II, several individuals were convicted of treason for collaborating with Nazi Germany, including William Joyce, also known as 'Lord Haw-Haw', who broadcast Nazi propaganda to the United Kingdom, and Vidkun Quisling, who served as Minister President of Nazi-occupied Norway and after whom the word 'quisling' is derived.

In 1933, Marinus van der Lubbe was convicted of high treason and arson for the Reichstag fire, though his true responsibility is still disputed by historians. In 1942, Anton Schmid was convicted of treason for saving Jews and helping Jewish partisans. He was later honoured by the Bundeswehr, which named two barracks after him.

More recently, in 2006, the United States government charged Adam Yahiye Gadahn, an American spokesman for al-Qaeda, with treason for threatening attacks on American soil.

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The Treason Clause

Treason is defined as levying war against the United States or adhering to their enemies, giving them aid and comfort. This narrow definition was a departure from English common law, which recognised constructive treason, and aimed to prevent the abuse of treason charges by requiring an overt act of treason.

To be convicted of treason, the Constitution requires the testimony of two witnesses to the same overt act or a confession in open court. This provision was designed to protect against false or passion-driven accusations and to ensure that thoughts and intentions alone do not constitute treason.

The Supreme Court has further clarified what constitutes "levying war" and "aid and comfort" to enemies. In Ex parte Bollman (1807), the Court narrowly interpreted "levying war" as the actual waging of war, dismissing treason charges against two associates of former Vice President Aaron Burr, who was accused of plotting to overthrow the American government. In Cramer v. United States (1945), the Court held that the “overt act” must be “openly manifest treason," supported by the testimony of two witnesses, even if one of them is the accused.

While treason prosecutions are rare, the Treason Clause continues to be relevant, serving as a reminder of the crucial distinction between traitorous actions and treasonous thoughts.

Treason prosecutions

Treason is the only crime that is expressly defined by the US Constitution. The Constitution also outlines how treason charges must be proven. According to Article III, Section 3, Clause 1, treason against the United States can only be proven by the testimony of two witnesses to the same overt act or by confession in open court. This is known as the “two-witness principle".

The Constitution specifically identifies what constitutes treason against the United States, limiting the offence to only two types of conduct:

• "Levying war" against the United States
• "Adhering to [the] enemies [of the United States], giving them aid and comfort"

The Supreme Court has further clarified what each type of treason entails. In Ex parte Bollman & Swarthout (1807), the Supreme Court dismissed charges of treason against two associates of former Vice President Aaron Burr, who was accused of plotting to overthrow the American government in New Orleans. The Court held that their alleged conduct did not constitute "levying war" against the United States.

In Cramer v. United States (1945), the Supreme Court held that the “overt act" must be "openly manifest treason" and that circumstantial evidence or the testimony of a single witness is not sufficient to prove treason. The Court also clarified that "giving aid or comfort" to the enemy requires a "deed or physical activity" rather than a "mental operation".

There have been relatively few treason prosecutions in American history, with only one person indicted for treason since 1954. The last federal treason conviction to be fully upheld was that of Nazi sympathizer Herbert John Burgman in 1949. Death sentences for treason under the Constitution have been carried out only 16 times.

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