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18 U.S. Code § 2381 - Federal Crime of Treason

Treason is a federal crime in the United States, as stated in Title 18 U.S. Code § 2381. It is defined as "levying war against the United States, or adhering to their enemies, giving them aid and comfort."

While rarely charged, there have been only 40 cases prosecuted in the history of the United States. Still, treason is one of the most severe crimes committed against the U.S., carrying a minimum prison sentence of 5 years, fines up to $10,000, and a possible sentence of death.

Federal Crime of Treason - 18 U.S. Code § 2381

18 U.S.C. § 2381 says, “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 imprisoned and fined, and incapable of holding any U.S. office.”

Being accused of treason, sedition, or subversive activities can destroy your reputation and career. It can also lead to losing your freedom for many years, which is why you need experienced legal representation.

Treason and seditions have specific definitions under different federal statutes. These must be understood so you know what a federal prosecutor must prove to obtain a conviction. Challenging the elements of the crime is a common strategy for most defense lawyers to raise reasonable doubt.

Many defense attorneys don't know the treason laws, and they cannot provide representation to a defendant charged with this federal offense. You will need to find a qualified federal criminal defense lawyer to have the best chance of a favorable outcome. Let's review this law in more detail below.

Treason Explained

Most nations define treason in the same general way: betrayal of one's own country. Treason is the only crime specifically defined in the Constitution. Article III, Section 3 reads, "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

To be convicted of treason, prosecutors must prove that the defendant committed one of the two enumerated acts and did so with the "specific intent to betray" the United States. A person can only be convicted of treason on the testimony of two witnesses describing the same act or by the defendant's confession.

What is Treason under Federal Law?

The first part of the crime, levying war against the United States, is pretty straightforward. It means taking up arms against the U.S. to overthrow the government or prevent it from carrying out its lawful functions.

The second part, adhering to the enemies of the United States, is a little more open to interpretation. It includes things like providing financial support or giving sensitive information to a country that is at war with the U.S.

For someone to be convicted of treason, they must have committed one of these acts with the "specific intent to betray" the United States. This means that they must have intended to help the enemy, not just that their actions had that effect.

The penalty for treason is severe. Treason is one of only a handful of federal crimes for which capital punishment is an option. The minimum penalty for an act of treason is five years in federal prison, with a maximum penalty of $10,000.

Rarity of Treason

While accusations of treason are often thrown around amid the contentious political climate, the truth is that treason charges in America are rare.

Of the 40 treason cases charged since the founding of the U.S., only 13 resulted in a conviction, and only three people have been executed for it. Since 1956, only one person indicted for treason—Adam Gadahn, in 2006, for making propaganda videos for al-Qaeda. He was killed in an airstrike before he could be brought to trial.

What Are the Related Federal Crimes?

A few other federal crimes are similar to treason but have different elements or require a different level of intent. One of the reasons that treason charges have become so sparse in recent decades is that Congress passed numerous laws regarding other crimes against the U.S. that offer more specific definitions than treason. Related offenses include, but are not limited to:

  • Sedition (aka, Seditious Conspiracy) (18 U.S.C. § 2384): Defined as two or more people conspiring to "overthrow, put down, or to destroy by force" the U.S. government or prevent it from carrying out its lawful functions; OR to "seize, take, or possess by force" any property of the U.S. government. Several of the hundreds arrested after the Jan. 6 riot on the Capitol Building were charged with this crime.
  • Rebellion or Insurrection (18 U.S.C. § 2383): Defined as two or more people rising in rebellion against the U.S. government or assisting others in rebelling.
  • Espionage (18 U.S.C. § 792 - 798): Espionage is defined as obtaining, delivering, or transmitting national defense information to a person not authorized to receive it; OR retaining documents or devices containing such information with the intent to deliver them to an unauthorized person.
  • Advocating Overthrow of Government (18 U.S.C. § 2385): It is a federal crime to advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the government of the United States by force or violence, or to publish or circulate printed material advocating the overthrow of the government.
  • Misprision of Treason (18 U.S.C. § 2382): This statute imposes a fine and imprisonment for owing allegiance to the United States and not disclosing treason as soon as they know it has occurred.
  • Activities Affecting Armed Forces (18 U.S.C. § 2387): This statute makes it a crime to cause insubordination among military members or distribute materials urging disloyalty to the United States military.
  • Recruiting for Service against the United States (18 U.S.C. § 2389): Recruiting soldiers or sailors to engage in armed hostility against the U.S. government is a federal crime under this statute.
  • Enlisting to Serve Against the United States (18 U.S.C. § 2390): This federal statute criminalizes the act of enlisting to serve in an armed force against the United States. 

Contact a Federal Defense Professional For Help

Our federal criminal defense lawyers have the knowledge and skill to provide you with legal representation that will give you the best chance of success.

Treason is a grave allegation, you will need qualified legal counsel to review all the details to develop a defense strategy to protect your legal rights and freedom.

The first step is to take a close examination of all the details. If evidence was seized during the execution of the warrant, it might be possible to challenge the legality of the search.

Federal Criminal Lawyers

This could be argued if the evidence was discovered outside the parameters established in the warrant or if the evidence recovered didn't match the description put forth in the warrant.

Regardless of the reason for the search, your legal right to privacy is protected. It would help if you had a lawyer who understands federal search and seizure warrants. Just because a federal law enforcement agent has acquired a search warrant from a judge, it doesn't automatically mean the warrant was legally valid.

Perhaps we can argue that the warrant was not based on sufficient probable cause, or it was too broad to describe where agents could search. Maybe we can negotiate a favorable plea bargain.

Eisner Gorin LLP is located in Los Angeles, California. We provide representation for federal issues across the country. You can contact our law firm for a case evaluation by phone or fill out the contact form.

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