Why Inciting an Insurrection Isn't Considered Treason, Even if Found Guilty

Former President Donald Trump's impeachment trial will focus on whether he incited an insurrection, a charge that in a criminal court falls short of treason, the highest crime in the United States, and is easier to prove.

Treason is an impeachable offense but not one that has been levied against Trump or any of the participants of the Capitol riot. The former president is charged with, and subsequently impeached over, committing "high crimes and misdemeanors" by using claims about the election's integrity to encourage a mob of his supporters to breach Capitol security and engage in violence in an attempt to interfere with Congress' certification of President Joe Biden's Electoral College victory.

Treason is ordinarily thought of as "actively engaging in open warfare" or assisting people—often foreigners—in engaging in warfare against the U.S., according to Frank Bowman, a Curators' professor at the University of Missouri school of law. Insurrection, he said, is not well defined but is "something short of open organized warfare with armies and such."

Unlike insurrection, treason is defined in the Constitution, the only crime to receive such treatment. The Framers purposely gave it a narrow definition to avoid it being broadly used as a weapon against political opposition, as the British Crown had done. To commit treason a person must have levied "war" against the United States or adhered to the nation's enemies by "giving them aid and comfort."

Convicting a person of treason, which can be punished by death, requires two witnesses to testify to the same overt act or the defendant to confess to it in open court. Those same requirements aren't necessary to convict a person of incitement of insurrection in criminal court, where crimes can be proven through circumstantial evidence, Michael Morley, an associate professor at the University of Florida College of Law, told Newsweek.

donald trump impeachment treason insurrection
Treason differs from insurrection in that it requires an act of war, according to experts. Pro-Trump protesters gather in front of the U.S. Capitol Building on January 6 in Washington, D.C. Brent Stirton/Getty

A person found guilty of insurrection, which the U.S. code describes as someone who "incites, sets on foot, assists or engages in any rebellion or insurrection" against the U.S. or "gives aid and comfort thereto," faces up to 10 years in prison. But, a criminal trial and an impeachment trial are two very different entities and experts say statutes should bear weight in Trump's case.

"It is a political proceeding that is based upon abuse of power and so whether or not the House has evidence that would satisfy the statutory definition of rebellion or treason is completely irrelevant," Jim Gardner, a professor of law at the University of Buffalo, told Newsweek.

Under the Constitution, the president can be impeached by the House and convicted in the Senate of "treason, bribery or other high crimes and misdemeanors." Bowman said it's clear Trump engaged in impeachable conduct, but it's also clear he didn't commit treason and without bribery being an option, it left the House with "high crimes and misdemeanors" based on his inciting of an insurrection.

High crimes and misdemeanors is a "broader concept" than treason and Morley said legislators may have felt they had more "flexibility" focusing on insurrection.

Trump's trial is set to begin on Tuesday and House managers will try to persuade 67 senators to convict the former president. Part of the former president's defense will focus on the argument that Trump didn't commit a crime as a matter of law, but others argue that's not necessary for impeachment.

"At the time of ratification of the Constitution, the phrase high crimes and misdemeanors thus appears understood to have applied to uniquely political offenses, or misdeeds committed by public officials against the state," according to an annotated version of the Constitution on Congress' website.

In the Federalist Papers: No 65, former Treasury Secretary Alexander Hamilton described impeachable offenses as those that are caused by the "the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

Despite statutory crimes being irrelevant to the proceedings, Gardner said House prosecutors might try to show a violation of a statute because Trump's attorneys are trying to make it relevant.

"If I were to advise a member of Congress, I would say the standard you should be applying here is whether the person who has been impeached has abused power in a way that is repugnant to the constitutional order and that's the only question."