Could a former president instead be charged with other federal crimes (e.g., conspiracy, obstruction) rather than treason?

1. Prosecutors choose pragmatic statutes over treason

Treason is a narrow constitutional crime—requiring an overt act of levying war against the U.S. or aiding enemies—and has rarely been used; by contrast, federal conspiracy and obstruction statutes provide prosecutors flexible tools to charge coordinated efforts to subvert government functions. The indictment that arose from the January 6 investigations charged counts including conspiracy to defraud the United States and conspiracy to obstruct the congressional certification process, illustrating prosecutors’ preference for statutory conspiracy and obstruction counts to capture coordinated wrongdoing without invoking treason ^{[1] [4]}.

2. Recent practice: the Trump federal election‑obstruction indictment as a template

The Department of Justice indicted a former president in 2023 on four counts that centered on conspiracy and obstruction—specifically, conspiracy to defraud the U.S. (18 U.S.C. §371), conspiracy to obstruct an official proceeding (18 U.S.C. §1512(k)), obstruction of the certification (1512(c)), and conspiracy against voting rights (18 U.S.C. §241). Those charges show how prosecutors can allege coordinated schemes and corrupt motives without attempting treason prosecutions ^{[1] [4]}.

3. Legal doctrine: immunity and post‑office exposure

Courts and legal scholarship stress that sitting presidents enjoy prosecutorial protections under DOJ policy, but most authorities accept that former presidents can be prosecuted for crimes committed outside the “exclusive sphere” of constitutional duties. The Supreme Court and U.S. Constitution annotations have framed a three‑part immunity assessment for acts tied to official authority, which leaves room for criminal exposure for many post‑office or unofficial acts—making conspiracy and obstruction workable charges after a presidency ends ^{[2] [3]}.

4. Obstruction and conspiracy fit messy political misconduct

Obstruction statutes criminalize interference with official processes; conspiracy law permits prosecutors to charge an agreement to commit an unlawful objective even when the precise details differ across co‑conspirators. The congressional Research Service and court materials explain that conspiracy counts are valuable because the government need not prove agreement on every detail, only the essential nature of the scheme—useful in complex political actions where direct proof of single criminal acts may be scarce ^{[1] [5]}.

5. Precedents and analogues: public officials charged with conspiracies

Federal prosecutions of public officials and aides routinely employ conspiracy, fraud, and obstruction statutes. Recent indictments and convictions—ranging from public‑corruption and bank‑fraud conspiracies to obstruction and obstruction‑related conspiracy pleas—underscore the Department of Justice’s reliance on these statutes to hold political actors accountable ^{[6] [7] [8]}.

6. Why treason is rarely invoked—legal and practical limits

Available sources do not detail modern treason prosecutions in comparable political settings; but the narrow constitutional definition and historical rarity of treason charges make them an unlikely choice. Sources show prosecutors instead draw on broadly applicable criminal statutes that carry high penalties and match the conduct alleged—e.g., conspiracy to defraud, obstruction, or conspiracy against civil rights—rather than pursuing treason ^{[1] [4]}. Available sources do not mention modern U.S. treason charges being used against recent presidents.

7. Competing viewpoints and political context

Some political actors and commentators urge aggressive labeling (including calls for treason)—but reporting and legal commentary reflect prosecutorial caution and reliance on established federal criminal statutes. Reuters reporting on related DOJ probes notes speculation among allies about broader conspiracy cases, while legal annotations and scholarly accounts emphasize statutory tools and immunity questions rather than treason ^{[9] [1] [2]}.

8. Bottom line for readers

Federal prosecutors have clear, tested legal paths—conspiracy and obstruction statutes—to charge former presidents or aides for coordinated efforts to subvert government processes; recent federal indictments repeatedly demonstrate this approach ^{[1] [4]}. Treason remains legally narrow and practically unused in these political contexts; current reporting and legal analyses show prosecutors prefer ordinary federal criminal statutes to hold former officials accountable ^{[2] [1]}.