Did the Court Kill the Treason Charge?: Reassessing Cramer v. United States and its Significance

64 Pages Posted: 4 Jan 2009 Last revised: 23 Dec 2009

See all articles by Paul T. Crane

Paul T. Crane

University of Richmond School of Law

Date Written: January 2, 2009


In 1945, the United States Supreme Court decided a case involving a treason conviction for the first time in its history: Cramer v. United States. In that case, the Court explained what it meant to give aid and comfort to the enemy and interpreted the meaning of the overt act requirement under the Constitution's Treason Clause. Since the Court's decision, most observers have argued that Cramer's exacting standards made treason too hard to prove, thereby removing it as a potential charging option for federal prosecutors. Notably, between 1954 and 2006, the United States did not indict a single American for treason - the longest such absence in American history. However, in 2006, the United States indicted Adam Gadahn on charges of treason for his participation in several al-Qaeda videotapes. In light of this landmark indictment, this article reexamines the Court's decision in Cramer and its significance. In so doing, it challenges the conventional wisdom on two fronts. First, this article explores what issues motivated the Justices in Cramer. Specifically, it posits that the Court's decision (and division) can be best explained by the Justices' attitudes on two factors that have each been overlooked in previous scholarship: (1) the degree to which Congress may circumvent the Treason Clause by proscribing conduct covered by treason under a different heading and without the same procedural safeguards and (2) the degree to which the Framers intended treason prosecutions to be exceedingly rare and difficult. Second, this article reassesses the significance of Cramer and, in particular, its contribution to the lack of treason charges after 1954. In particular, it argues that while the Court's decision made treason harder to prove, it certainly did not make treason too hard to prove. Furthermore, it asserts that Cramer's most significant contribution was that it expressly held that Congress could criminalize (and the executive could prosecute) treasonous conduct under a separate statutory heading and without the procedural safeguards required by the Constitution's Treason Clause.

Keywords: treason, Cramer v. United States, prosecutorial discretion, aid and comfort, Treason Clause, overt act requirement, Haupt v. United States, legal history, constitutional history, Robert Jackson, Harlan Fiske Stone, Supreme Court

Suggested Citation

Crane, Paul T., Did the Court Kill the Treason Charge?: Reassessing Cramer v. United States and its Significance (January 2, 2009). Florida State University Law Review, Vol. 36, p. 635, 2009, Available at SSRN: https://ssrn.com/abstract=1322445

Paul T. Crane (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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