The first claim: The burr trial united states v. nixon, and presidential power

Minnesota Law Review

Volumn 83, Issue 5, 1999, Pages 1435-1477

  Yoo, John C ^a  

^a NONE

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EID: 37849188434     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (166)

1. Acting Professor of Law, University of California at Berkeley School of Law (Boalt Hall). I thank Sai Prakash for his comments on the manuscript, and the staff of the Manuscripts Division of the Library of Congress for their assistance in locating the letters discussed in this article. I also am grateful to Mike Paulsen for inviting me to participate in this symposium and to the staff of the Minnesota Law Review, in particular Erick Ottoson and Jeannette Arazi, for their editorial assistance.
2. 418 U.S. 683 (1974).
3. See, e.g., Gerald Günther, Judicial Hegemony and Legislative Autonomy: The Nixon Case and the Impeachment Process, 22 UCLA L. REV. 30, 33 (1974) (Nixon "seems to me to convey a misleadingly broad view of judicial competence, exclusivity and supremacy. ");
4. Kenneth L. Karst & Harold W. Horowitz, Presidential Prerogative and Judicial Review, 22 UCLA L. REV. 47 (1974).
5. Nixon, 418 U.S. at 704-05.
6. See, e.g., ROBERT LowRY CLINTON, MARBURY v. MADISON AND JUDICIAL REVIEW (1989); CHRISTOPHER WOLFE, THE RISE OF MODERN JUDICIAL REVIEW (1986); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 DUKE L.J. 279 (1992).
7. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994).
8. United States v. Burr, 25 F. Cas. 187 (C.C.D. Va. 1807) (No. 14,694).
9. See Nixon, 418 U.S. at 707-08, 713-15.
10. See id. at 708 (quoting United States v. Burr, 25 F. Cas. at 192).
11. Paul A. Freund, The Supreme Court, 1973 Term-Foreword: On Presidential Privilege, 88 HARV. L. REV. 13, 31 (1974).
12. See Clinton v. Jones, 117 S. Ct. 1636,1649 (1997). Justice White also relied on Burr to claim that the President was subject to judicial process, see Nixon v. Fitzgerald, 457 U.S. 731, 781 (1982) (White, J., dissenting), as did the lower court in United States v. Nixon, see Nixon v. Sirica, 487 F.2d 700, 709 (1973).
13. See Paulsen, supra note 5, at 282; EDWARD S. CORWIN, THE PRESIDENT: OFFICE & POWERS 1787-1957, at 113, 326;
14. see also DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 275-76 (Kermit Hall & David CXBrien eds., 1994).
15. See Nixon v. Fitzgerald, 457 U.S. at 750-52 & n.31.
16. Detailed histories of the Burr conspiracy can be found in: THOMAS P. ABERNETHY, THE BURR CONSPIRACY (1968);
17. WALTER FLAVIUS MCCALEB, A NEW LIGHT ON AARON BURR (1966);
18. HERBERT s. PARMET & MARIE B. HECHT, AARON BURR: PORTRAIT OF AN AMBITIOUS MAN (1967);
19. DUMAS MALONE, JEFFERSON THE PRESIDENT: SECOND TERM 1805-1809, at 215-370 (1974);
20. GEORGE LEE HASKINS & HERBERT A. JOHNSON, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-1815, at 246-91 (1981);
21. ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL 274-545 (1919);
22. HENRY ADAMS, HISTORY OF THE UNITED STATES OF AMERICA DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON (Library of Am. 1986). I have also found helpful the balanced account in FORREST MCDONALD, THE PRESIDENCY OF THOMAS JEFFERSON 11014,120-30 (1976). The account that follows is drawn from these sources.
23. To prevent such a tie ever again, the Twelfth Amendment was ratified in 1804 to provide for separate balloting for President and Vice-Président.
24. Hamilton urged his supporters to vote for the Republican candidate for the governorship rather than for Burr, who had ended up running for the office as a Federalist, due to a series of political machinations that were typical when Burr was involved.
25. MCDONALD, supra note 13, at 91.
26. Wilkinson also happened to be a spy who received an annual pension from the Spanish government.
27. See MCDONALD, supra note 13, at 112-14.
28. Of the major works, McCaleb believes that Burr was innocent of treason and sought only to attack Spain, while Abernethy takes the position that Burr plotted treason. McDonald's account, which seems to best explain the evidence, takes the position that Burr flirted with treason, but in the end he chose to only lead an attack on Spain in coordination with American forces.
29. Letter from Aaron Burr to James Wilkinson (July 29, 1806), in 3 BEVERIDGE, supra note 13, at 614-15.
30. The fates of these couriers is recorded in Ex parte Bollman and Ex parte Swartwout, 8 U.S. (4 Cranch) 75 (1807).
31. See Sixth Annual Message (Dec. 2, 1806), in THOMAS JEFFERSON, WRITINGS 525 (Merrill Peterson ed., Library of Am. 1984).
32. See 3 BEVERIDGE, supra note 13, at 365-80. The Ohio River island that served as Burr's headquarters lay within the jurisdiction of Marshall's circuit.
33. See Special Message on the Burr Conspiracy (Jan. 22, 1807), in JEFFERSON, supra note 22, at 532.
34. Letter from Thomas Jefferson to William Branch Giles (Apr. 20, 1807), in JEFFERSON, supra note 22, at 1175.
35. Id. at 1174-75.
36. Id. at 1173.
37. Id.
38. Letter from Thomas Jefferson to George Hay (May 20, 1807), in 10 WORKS OF THOMAS JEFFERSON 394-401 (Paul Leicester Ford ed., 1905); see also LEONARD w. LEVY, JEFFERSON & CIVIL LIBERTIES: THE DARKER SIDE 70-73 (1963).
39. Special Message on the Burr Conspiracy, supra note 24, at 532, 534.
40. LEVY, supra note 29, at 71. Jefferson's micro-management of the prosecution can be seen in the numerous letters he sent to Hay on various trial issues. For example, Jefferson advised the federal prosecutor of the precise legal arguments to make before Marshall. He suggested to Hay that Marbury v. Madison was not good law and ought to be ignored. I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; & I think the present a fortunate one, because it occupies such a place in the public attention. I should be glad, therefore, if, in noticing that case, you could take occasion to express the determination of the executive, that the doctrines of that case were given extrajudicially & against law, and that then- reverse will be the rule of action with the executive. Letter from Thomas Jefferson to George Hay (June 2, 1807), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 397. Jefferson even went so far as to attempt to deprive the federal courts of jurisdiction when he felt they would impede the suppression of the Burr conspiracy. When Burr's aides filed habeas petitions before the Supreme Court, having been arrested and detained without a warrant, Jefferson's allies in the Senate passed a bill suspending the great writ-only the House prevented passage of the measure. See 3 BEVERIDGE, supra note 13, at 346-48; 16 ANNALS OF CONG. 44 (1807). Jefferson's activities on this score can only be described, at tunes, as paranoid. For example, in one letter to Hay he enclosed a letter from an old flour merchant in Baltimore who claimed that Luther Martin, Blur's attorney, knew all about Burr's scheme. Jefferson suggested that Hay put Martin on the stand, confront him with this new witness, and perhaps move to jail Martin. There was no evidence that this Baltimore informant had any knowledge of the affair. See Letter from Thomas Jefferson to George Hay (June 19, 1807), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 402-03.
41. See MERRILL D. PETERSON, THOMAS JEFFERSON AND THE NEW NATION: A BIOGRAPHY 868 (1970).
42. Letter from Thomas Jefferson to George Hay (June 19, 1807), supra note 31, at 403.
43. Andrew Jackson, no lover of the judiciary he, denounced Jefferson during the Burr trial as "a persecutor who sought the ruin of one he hated," 3 BEVERIDGE, supra note 13, at 404, and wrote that the trial had "assumed the shape of a political persecution." 3 id. at 405.
44. See PETERSON, supra note 32, at 867.
45. Id.
46. MALONE, supra note 13, at 319-20.
47. See PETERSON, supra note 32, at 869.
48. Letter from Thomas Jefferson to John W. Eppes (May 28,1807), m 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 412-13.
49. U.S. CONST, art. III, §3.
50. Id.
51. In Ex parte Bollman, Marshall had written that if an "assemblage of men for the purpose of executing a treasonable design" had occurred, then "all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are ... traitors." 8 U.S. (4 Cranch) 75,126 (1807).
52. See United States v. Burr, 25 F. Gas. 55, 159-80 (C.C.D. Va. 1807) (No. 14,693).
53. See EDWIN CORWIN, JOHN MARSHALL AND THE CONSTITUTION 108-09 (1919); PETERSON, supra note 32, at 873.
54. See, e.g., HASKINS & JOHNSON, supra note 13, at 286; HERBERT A. JOHNSON, THE CHIEF JUSTICESHIP OF JOHN MARSHALL, 1801-1835, at m (1997); JEANE. SMITH, JOHN MARSHALL: DEFINEROFANATION 370-74 (1996).
55. Letter from Thomas Jefferson to George Hay (Sept. 7, 1807), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 408; see also United States v. Burr, 25 F. Cas. at 187.
56. This letter, which appears to be the first document over which executive privilege had ever been claimed by a President against a judicial order, is reproduced in the Appendix to this article.
57. See Special Message on the Burr Conspiracy, supra note 24, at 53334.
58. See id. at 534-35.
59. PETERSON, supra note 32, at 870.
60. See id.
61. See MALONE, supra note 13, at 315. Jefferson himself believed that this was the true objective of the subpoena. See Letter from Thomas Jefferson to George Hay (undated draft letter), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 406-07.
62. See MALONE, supra note 13, at 312-14.
63. See United States v. Burr, 25 F. Cas. 30, 30-31 (C.C.D. Va. 1807) (No. 14,692d).
64. MALONE, supra note 13, at 316.
65. Id.
66. United States v. Burr, 25 F. Cas. at 31.
67. See id. at 34.
68. See id. at 33.
69. 7
70. 117 S. Ct. 1636, 1643-45 (1997); see also Akhil Reed Amar & Neu Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 HARV. L. REV. 701, 713 (1995).
71. United States v. Burr, 25 F. Cas. at 34.
72. W. at 34.
73. See Letter from Thomas Jefferson to George Hay (June 2, 1807), supra note 31, at 396-97 (But the executive determined that the sedition act was a nullity under the Constitution, and exercised his regular power of prohibiting the execution of the sentence, or rather of executing the real law, which protected the acts of the defendants.); see also Letter from Thomas Jefferson to Abigail Adams (Sept. 11,1804), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 88-90: You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.
74. Letter from Thomas Jefferson to George Hay (June 2, 1807), supra note 31, at 396.
75. Letter from Thomas Jefferson to George Hay (June 12, 1807), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 398.
76. See United States v. Burr, 25 F. Cas. at 65.
77. Letter from Thomas Jefferson to George Hay (June 17, 1807), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 400.
78. See United States v. Burr, 25 F. Cas. at 69.
79. Letter from Thomas Jefferson to George Hay (June 17, 1807), supra note 68, at 400-01.
80. Letter from Thomas Jefferson to George Hay (June 20, 1807), in 10 WORKS OF THOMAS JEFFERSON, supra note 29, at 404.
81. Id.
82. Id.
83. Id.
84. Id.
85. Id.
86. Id.
87. 7d. at 405.
88. See United States v. Burr, 25 F. Gas. 55, 69-70 (C.C.D. Va. 1807) (No. 14,693).
89. That this was Jefferson's intent is also shown in a draft letter from Jefferson to Hay which, according to Professor Paul Ford, may never have been sent. The enclosed letter is written in a spirit of conciliation & with the desire to avoid conflicts of authority between the high branches of the govmt which would discredit it equally at home & abroad. Letter from Thomas Jefferson to George Hay (undated draft letter), supra note 52, at 406-07. Interestingly, Jefferson laid the blame for the clash between the branches upon Burr, and Jefferson believed that Marshall's prudence or good sense would lead the Chief Justice not to press it. Jefferson believed that the problems with the subpoena indicated that a congressional statute providing for judicial process of executive branch officers was needed. I hope however that the discretion of the C.J. will suffer this question to lie over for the present, and at the ensuing session of the legislature he may have means provided for giving to individuals the benefit of the testimony of the [Executive] functionaries in proper cases, without breaking up the government. Id. at 407.
90. That Jefferson did not believe that he had a constitutional basis for resisting a subpoena might also be demonstrated by his eagerness to find a non-constitutional ground for such a position. For example, Jefferson considered arguing that he did not have to obey the subpoena because a district court's process was only good within its district. Because Marshall's circuit court did not encompass Washington, D.O., Jefferson might have been able to avoid complying with the subpoena.
91. See Letter from Thomas Jefferson to James Madison (Aug. 25, 1807), in 3 THE REPUBLIC OF LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON 1491 (James M. Smith ed., 1995).
92. 418 U.S. 683, 706 (1974) (Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.).
93. Letter from Thomas Jefferson to George Hay (June 12, 1807), supra note 66, at 398.
94. Letter from Thomas Jefferson to George Hay (June 17, 1807), supra note 68, at 401.
95. See id.
96. See Special Message on the Burr Conspiracy, supra note 24, at 532.
97. See ABERNETHY, supra note 13, at 150-52; Letter from General James Wilkinson to President Jefferson (Oct. 21,1806), infra Appendix.
98. Letter from Thomas Jefferson to George Hay (June 12, 1807), supra note 66, at 399 (emphasis added).
99. United States v. Burr, 25 F. Gas. 30, 31 (C.C.D. Va. 1807) (No. 14,692d).
100. Id.
101. United States v. Burr, 25 F. Cas. at 37.
102. Id.
103. Letter from Thomas Jefferson to George Hay (Sept. 7, 1807), supra note 46, at 408.
104. See United States v. Burr, 25 F. Cas. at 189.
105. This letter is also included in the Appendix to this article.
106. United States v. Burr, 25 F. Cas. at 190.
107. See id.
108. See MALONE, supra note 13, at 343.
109. See United States v. Burr, 25 F. Cas. at 190. The letter, however, does not appear to discuss such gossip. It does convey Wilkinson's belief that many in the city of New Orleans were disloyal.
110. See id.
111. Id.
112. Id.
113. Id. at 191.
114. Id.
115. Id. at 191-92.
116. Id. at 192.
117. Id.
118. Id.
119. Id.
120. Id.
121. Id.
122. Id.
123. See id.
124. MALONE, supra note 13, at 343-44 (quoting Letter from George Hay to Thomas Jefferson (Sept. 5, 1807), on file in the Jefferson Papers at the Library of Congress, 30088-89).
125. See Letter from Thomas Jefferson to George Hay (Sept. 7, 1807), supra note 46, at 409.
126. Id. at 408.
127. 7d.at409.
128. Raoul Berger appears to have misread the significance of Jefferson's September 7 letter in his analysis of the second subpoena. Berger believes that Hay had turned the letter over to the court, which was holding it until called for by Burr's counsel. RAOUL Berger, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 358-59 (1974). Professor Berger fails to note that Hay sent the letter back to Jefferson, who then returned only a redacted copy, which was then accepted by the court.
129. See Nixon v. Fitzgerald, 457 U.S. 731, 750 n.31 (1982).
130. Id.
131. Letter from Thomas Jefferson to George Hay (June 20, 1807), supra note 71, at 404.
132. See supra text accompanying notes 78-79.
133. Letter from Thomas Jefferson to George Hay (June 20, 1807), supra note 71, at 404.
134. 117 S. Ct. 1636 (1997).
135. Id. at 1645 n.23.
136. Id.
137. Id. at 1649.
138. Id. at 1649 n.38.
139. Jefferson's decision to forego his argument is even more striking because he might have had legitimate grounds to make it in court. At the same time that he was under subpoena in the Burr case, another litigation was brewing in Connecticut that had the potential for calling upon Jefferson to testify. Like Clinton v. Jones, the case involved Jefferson's actions as a private citizen with a member of the opposite sex. Apparently, Jefferson had made romantic overtures to a married woman in 1768; a Federalist clergyman had used this rumor along with others about Jefferson's past as the ground for calling the President "a liar, whoremaster, débaucher, drunkard, gambler, and infidel." In 1806, a Jefferson-appointed federal judge led a grand jury to indict the clergyman, along with other prominent Federalists (including printers Hudson and Goodwin, whose case eventually would reach the Supreme Court), for seditious libel. By the summer of 1807, the same time as the Burr trial, the clergyman had subpoenaed James Madison and other prominent Virginians to testify to the truth of the rumors, as truth was still a defense to seditious libel. The implicit threat behind these maneuvers was that the defendant also would subpoena Jefferson, and it is not surprising that the suit was soon dropped. See 3 THE REPUBLIC OF LETTERS: THE CORRESPONDENCE BETWEEN JEFFERSON AND MADISON, supra note 81, at 1479-80 & n.39,1490-92;
140. LEVY, supra note 29, at 61-69.
141. Clinton v. Jones, 117 S. Ct. at 1655 (Breyer, J., concurring in the judgment). Professors Akhil Arnar and Neal Katyal similarly rely on the Jefferson example for their claim that a president should not be subject to civil damages suits for his non-official actions. See Amar & Katyal, supra note 61, at 717-18.
142. Justice Breyer also misread the historical record when he characterized the struggle between Marshall and Jefferson as "a dispute about whether the federal courts could subpoena [Jefferson's] presence in a criminal case." Clinton v. Jones, 117 S. Ct. at 1655. As the record makes clear, Jefferson's personal attendance was never called for and Marshall never issued such a subpoena.
143. See Mark Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 MlNN. L. REV. 1069 (1999).
144. See In re Lindsey, 148 F.3d 1100 (D.C. Cir.) (denying claim of attorney-client privilege between Deputy White House Counsel and President), cert, denied, 119 S. Ct. 466 (1998).
145. In re Sealed Case, 148 F.3d 1073 (D.C. Cir.) (denying existence of protective function privilege for Secret Service agents guarding the President), reh'g en bane denied, 146 F.3d 1031 (D.C. Cir.), stay denied, 148 F.3d 1079 (D.C. Cir.), and cert, denied, 119 S. Ct. 461 (1998).
146. See, e.g., In re Sealed Case, 119 S. Ct. l (1998) (denying application for stay).
147. See ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (1973).
148. See, e.g, United States v. Curtiss-Wright, 299 U.S. 304 (1936); Dames & Moore v. Began, 453 U.S. 654 (1981).
149. See U.S. CONST, art. II.
150. See Morrison v. Oison, 487 U.S. 654, 686-93 (1988). See also Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994),
151. which seems to me to have the better of the argument over Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996)
152. and Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994).
153. See Morrison v. Olson, 487 U.S. at 695.
154. See Curtiss-Wright, 299 U.S. at 319.
155. See United States v. Nixon, 418 U.S. 683, 711 (1974).
156. Charles L. Black, Jr., The Working Balance of the American Political Departments, 1 HASTINGS CONST. L.Q. 13, 17, 20 (1974);
157. see also HAROLD H. KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 118-23 (1990).
158. Lincoln's actions have generated a substantial controversy concerning his attitude toward civil rights. See, e.g., MARK NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991);
159. JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (1926).
160. Paul Ford believes the letter was never sent, and estimates its timing around September, 1807, but Dumas Malone appears to have the better suggestion that the letter was sent at the time of the first subpoena in June, 1807. See MALONE, supra note 13, at 323 n.30.
161. Letter from Thomas Jefferson to George Hay (undated draft letter), supra note 52, at 407.
162. Id.
163. See id. ("[Y]ou will advise the marshal on his conduct, as he will be critically placed between us. His safest way will be to take no part in the exercise of any act efforce ordered in this case.").
164. Id.
165. A printed version of this letter can be found in 2 JAMES WILKINSON, MEMOIRS OF MY OWN TIMES, app. No. XCV (1816). Wilkinson wrote the memoirs apparently as part of an effort to defend himself from charges of incompetence during the War of 1812, for which he was court-martialed. As a result, Wilkinson's letters seem at points to be edited in his favor, and they must be compared to the original handwritten versions, which can be found in the Burr Conspiracy Collection, MMC-1088, Manuscript Division, the Library of Congress. For example, Wilkinson's printed version of his October 21,1806 letter to Jefferson appears to show that he signed both the covering letter and the allegedly confidential informant's letter of the previous day. The manuscript, however, clearly shows that the October 20, 1806 letter was unsigned, and that Wilkinson intended it to appear that someone else had written it. The Burr Conspiracy file contains original documents concerning the conspiracy which had been in the possession of the Department of State, but which were then handed over to the Library of Congress in 1906. The file contains most of the correspondence between President Jefferson, Secretary of State Madison, the state and territorial governors, and the military commanders regarding the Burr Conspiracy. Some important letters, however, are missing, such as Wilkinson's letter to Jefferson on November 12, 1806. Unfortunately, therefore, we have only Wilkinson's printed version of the letter to go on. We also cannot determine what portions of the November letter Jefferson sought to redact from the version he offered to the court. One wonders what ever happened to the original.
166. 2 WILKINSON, supra note 150, at app. No. C.