Is Trump a Traitor? A U.S., Comparative, and International Law Analysis

By Luis A. Avilés, PhD

Introduction

Few words in the political lexicon are as explosive as “traitor.” The epithet carries moral, cultural, and historical weight far beyond ordinary criticism. Yet in law, “traitor” is not a rhetorical flourish but a technical category: treason. In the United States, treason is the only crime defined in the Constitution, and the Framers deliberately confined it to a narrow set of circumstances in order to avoid the abuses of English law.[^1] Internationally, treason has no universal definition, while comparative jurisdictions construct analogous crimes around the protection of the constitutional order, often with differing emphases on violence, foreign allegiance, or institutional stability.

This article addresses the question “Is Donald J. Trump a traitor?” within three legal frameworks: the U.S. Constitution and federal statutes; comparative law in peer democracies; and international law. The analysis concludes that although Trump’s conduct related to the January 6, 2021 assault on the Capitol and the broader attempt to overturn the 2020 election may plausibly implicate serious offenses such as insurrection or seditious conspiracy, it does not satisfy the stringent definition of treason in American law. Comparative law indicates that similar conduct might be treated as “high treason” or “rebellion” elsewhere. International law, however, provides no general crime of treason, underscoring the concept’s fundamentally domestic nature.

I. The Constitutional Definition of Treason in the United States

Article III, Section 3 of the Constitution provides: “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.”[^2] The Framers deliberately limited the scope of treason. As James Madison explained in The Federalist No. 43, the restrictive definition was designed “to guard against the danger of subjecting the citizens to arbitrary prosecutions” of the kind common in English history.[^3]

Congress codified this definition without alteration in 18 U.S.C. § 2381, which provides that “[w]hoever, 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.”[^4] The statute prescribes penalties up to death, imprisonment for at least five years, and disqualification from office.

Judicial interpretation has kept treason narrow. In Ex parte Bollman, Chief Justice John Marshall explained that “levying war” requires “an assemblage of persons for the purpose of effecting by force a treasonable purpose.” Mere conspiracy is insufficient.[^5] The Second World War produced the most sustained modern case law. In Cramer v. United States, the Court held that the overt act requirement “is not satisfied by proof of an act which is innocent on its face, and which becomes incriminating only when shown by other evidence to have been performed with a treasonable intent.”[^6] In Haupt v. United States, the Court clarified that intent may be established circumstantially even if the overt act itself is not overtly treasonous.[^7] Finally, in Kawakita v. United States, the Court defined “enemies” as the armed forces of a power with which the United States is in a state of open war.[^8]

The combined effect of these precedents is that treason is limited to two scenarios: active participation in warlike force against the United States, or aid to a wartime enemy. Neither prong is easily satisfied.

II. Insurrection, Seditious Conspiracy, and Related Offenses

Because of treason’s narrow scope, prosecutors have rarely used it. Instead, they rely on neighboring offenses in Chapter 115 of Title 18. Section 2383 criminalizes inciting, assisting, or engaging in “rebellion or insurrection against the authority of the United States,” and provides for imprisonment and disqualification from office.[^9] Section 2384 defines seditious conspiracy as an agreement “to overthrow, put down, or to destroy by force the Government of the United States, or by force to prevent, hinder, or delay the execution of any law.”[^10]

These provisions were central to prosecutions connected to the January 6 attack. Leaders of groups such as the Oath Keepers and Proud Boys were convicted of seditious conspiracy and sentenced to lengthy prison terms.[^11] Juries found that defendants coordinated the use of force to obstruct certification of the electoral vote. These cases underscore the government’s reliance on § 2384 rather than the constitutional treason clause.

The distinction is revealing: American law recognizes violent resistance to government authority as criminal, but reserves the label “treason” for wartime collusion or organized war against the state itself.

III. Comparative Perspectives on Treason and Rebellion

Other democracies define treason differently.

In the United Kingdom, the Treason Act of 1351 remains in force, defining treason as including compassing the death of the sovereign or “levying war against the King in his realm.”[^12] Yet prosecutions for treason have been virtually nonexistent in the modern era. Parliament recently modernized its national security framework in the National Security Act 2023, which created offenses of foreign interference and espionage, signaling that treason in its medieval form has been eclipsed by statutes more fit for contemporary threats.[^13]

Germany distinguishes Hochverrat (high treason) under sections 81–83 of the Strafgesetzbuch. High treason occurs when an individual undertakes, by force or threat of force, to undermine the existence of the Federal Republic or alter its constitutional order.[^14] Unlike the U.S. Constitution, German law does not require a wartime “enemy.”

France criminalizes crimes against the “fundamental interests of the nation,” which include conduct traditionally described as trahison when committed in collaboration with a foreign power.[^15] Spain has long recognized rebelión and sedición as offenses targeting violent uprisings against the constitutional order. In 2022, Spain repealed sedition but retained rebellion, defined as a violent and public uprising intended to prevent enforcement of the Constitution.[^16]

Across these jurisdictions, the common thread is that the gravest offense involves the use of force to subvert constitutional order, not necessarily adherence to a wartime enemy.

IV. Treason and International Criminal Law

International criminal law does not recognize treason as a universal crime. The Rome Statute of the International Criminal Court enumerates genocide, crimes against humanity, war crimes, and the crime of aggression.[^17] The crime of aggression, codified in Article 8 bis, addresses the planning or execution of unlawful armed force by one state against another, not domestic betrayal.[^18]

The omission of treason from the Rome Statute reflects the domestic character of the offense. It also aligns with human rights instruments such as the International Covenant on Civil and Political Rights, which caution against overly broad definitions of treason that might criminalize dissent.[^19]

V. Applying U.S. Law to Trump

Does Trump’s conduct satisfy the constitutional definition of treason? On the “enemies” prong, the answer is no. The Supreme Court has made clear that “enemies” means foreign belligerents in wartime.[^20] Domestic opponents or rioters do not qualify.

On the “levying war” prong, the threshold is high. While Trump’s rhetoric and actions may have contributed to the violent attack on the Capitol, courts have held that “levying war” requires an organized, warlike effort against the government. Even a large-scale riot may not suffice absent proof of a military-style campaign.[^21] Moreover, the Constitution requires testimony of two witnesses to the same overt act by Trump himself, a burden unlikely to be met.[^22]

Thus, while his conduct may fall within insurrection or seditious conspiracy statutes, it does not constitute treason under Article III.

VI. Comparative Application

If the same facts arose in Germany, prosecutors could argue that Trump engaged in Hochverrat by attempting through force to alter the constitutional order.[^23] In Spain, his direction of a violent uprising to prevent enforcement of the Constitution could amount to rebelión.[^24] In France, his conduct might implicate crimes against the fundamental interests of the nation. In the United Kingdom, modern national security statutes would likely apply rather than the ancient Treason Act.

Comparative law thus suggests that other democracies would more readily classify the conduct as treason or rebellion.

VII. Constitutional Disqualification and

Trump v. Anderson

Beyond criminal liability, Section 3 of the Fourteenth Amendment bars any person who has engaged in insurrection after taking an oath of office from holding federal office. In Trump v. Anderson, the Supreme Court held that states lack authority to enforce Section 3 against presidential candidates; only Congress may do so.[^25] The Court left unresolved the factual question of whether Trump engaged in insurrection.

This distinction highlights the multiplicity of legal frameworks: treason, insurrection, seditious conspiracy, and constitutional disqualification each serve distinct functions.

VIII. Conclusion

The constitutional definition of treason, designed to avoid political abuse, is narrow. Trump’s conduct does not fit that definition, though it may implicate insurrectionary or conspiratorial statutes. Other democracies would likely treat similar acts as high treason or rebellion. International law, by contrast, offers no general crime of treason.

The question “Is Trump a traitor?” must therefore be answered with precision: legally, under the U.S. Constitution, no. Politically, the epithet may resonate. But law requires fidelity to constitutional text and precedent, which limit treason to wartime betrayal or organized war against the state.

Citations

[^1]: THE FEDERALIST NO. 43, at 302 (James Madison) (Clinton Rossiter ed., 1961).

[^2]: U.S. CONST. art. III, § 3, cl. 1.

[^3]: THE FEDERALIST NO. 43, supra note 1, at 302.

[^4]: 18 U.S.C. § 2381 (2018).

[^5]: Ex parte Bollman, 8 U.S. (4 Cranch) 75, 126 (1807).

[^6]: Cramer v. United States, 325 U.S. 1, 29 (1945).

[^7]: Haupt v. United States, 330 U.S. 631, 641–42 (1947).

[^8]: Kawakita v. United States, 343 U.S. 717, 735–36 (1952).

[^9]: 18 U.S.C. § 2383 (2018).

[^10]: 18 U.S.C. § 2384 (2018).

[^11]: See, e.g., Press Release, U.S. Dep’t of Justice, Leader of Oath Keepers Sentenced for Seditious Conspiracy (May 25, 2023).

[^12]: Treason Act 1351, 25 Edw. 3 St. 5 c. 2 (Eng.).

[^13]: National Security Act 2023, c. 32 (U.K.).

[^14]: STRAFGESETZBUCH [STGB] [PENAL CODE], §§ 81–83, translation at https://www.gesetze-im-internet.de.

[^15]: CODE PÉNAL [C. PÉN.] arts. 410-1 to 411-4 (Fr.).

[^16]: Código Penal art. 472 (Spain); Ley Orgánica 14/2022, de 22 de diciembre (Spain).

[^17]: Rome Statute of the International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 90.

[^18]: Id. art. 8 bis.

[^19]: International Covenant on Civil and Political Rights art. 19, Dec. 16, 1966, 999 U.N.T.S. 171.

[^20]: Kawakita, 343 U.S. at 735–36.

[^21]: Bollman, 8 U.S. (4 Cranch) at 126.

[^22]: Cramer, 325 U.S. at 29.

[^23]: STGB §§ 81–83.

[^24]: Código Penal art. 472 (Spain).

[^25]: Trump v. Anderson, 601 U.S. ___ (2024).