James W. Pfister: Trial of Aaron Burr and judicial independence

With investigations and prosecutions of political leaders today, it is useful to examine a famous political trial in 1807: United States v. Aaron Burr. This case helped to shape our independent judiciary in separation of powers. It is a precedent for today’s cases.

The question was whether a letter President Thomas Jefferson had in his possession could be subpoenaed by a federal trial court. Famous enemies were involved, all lawyers: Aaron Burr (defendant), Thomas Jefferson (accuser) and John Marshall (judge). Marshall was chief justice of the Supreme Court, but in those days, justices rode circuit in lower federal courts when the Supreme Court was not in session. The trial was in Richmond, Virginia; that was Marshall’s territory as well as his home.

After a four-year stint as vice president under Jefferson (another story), where he was virtually ignored, except for the Senate trial of Samuel Chase, Burr traveled to Europe for financial backing of a project he had west of the Appalachians. Historians still debate what Burr had in mind, but Jefferson thought the worst, that Burr was planning to set up a new nation. Jefferson publicly accused Burr of treason in a proclamation, a message to Congress and in the press, before any indictment or trial.

Gen. James Wilkinson had been ordered to keep an eye on Burr. Wilkinson wrote back to Jefferson about Burr’s behavior. “Jefferson ordered his attorney general to secure indictments of Burr and his associates for treason.” (Warren E. Burger, “It Is So Ordered,” 1995). Wilkinson arrested Burr and brought him back in chains for indictment and trial. (Ibid.).

Burr, and his lawyer, Luther Martin, made a motion before judge Marshall for a subpoena duces tecum (to produce documents) to see all letters between Wilkinson and Jefferson, not just those portions Jefferson released to Congress and the public. (Ibid.).

Could a trial judge subpoena a president of the United States? In United States v. Burr (Case No. 14,692d), Marshall wrote that the Constitution in the Sixth Amendment provided for the accused to have a right to a “speedy and public trial, and to compulsory process for obtaining witnesses in his favor.” This right would apply “before as well as after indictment.” There was nothing in the Constitution or the laws that made an exception for the president. Marshall contrasted a president and a king.

Regarding confidentiality, Marshall wrote: there “is certainly nothing before the court which shows that the letter in question contains any matter the disclosure of which would endanger the public safety … (e)verything of this kind, however, will have its due consideration on the return of the subpoena.” Thus, the judge will decide, not the president, the issue of confidentiality. Also, the original letter, not a copy, had to be submitted, “showing the letter to have been written by a particular person….” Jefferson complied.

The penalty for treason was death by hanging or firing squad. Realizing this, Marshall made a personal statement: If Burr were found guilty, “all those who are concerned in it should certainly regret that a paper which the accused believed to be essential to his defence … had been withheld from him.” Marshall stated the “self-reproach as I should feel, could I declare … that the accused is not entitled to the letter in question, if it should be really important to him.”

Burr was acquitted by the jury. The “testimony of General Wilkinson … cast serious doubt on the integrity of the general and his motives.” (Burger, Ibid.). The prosecution proved none of the elements of treason presented in the Constitution at Article III, Section 3. Jefferson’s attempted political assassination of Burr was defeated by an independent judiciary and the rule of law. The trial by Marshall established the power of a court to subpoena records from a governmental official, including the president, and to determine whether the material should be disclosed in terms of confidentiality. This was the precedent for United States v. Nixon (1974), regarding the presidential tapes, which led to President Richard Nixon’s resignation.

As for Burr, he eventually returned to New York for a peaceful life, until 1833, when he married a woman 19 years younger than he (another story).

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Trial of Aaron Burr and judicial independence