Jefferson and the Burr conspiracy: executive power against the law.

Author:Fisher, Louis
Position:The Law - Thomas Jefferson, Aaron Burr - Essay

Jefferson's reputation as constitutional guardian rests in large part on drafting the Declaration of Independence and articulating the values of individual rights, liberty, free exercise of religion, self-rule, and the need for checks on government abuse. He strongly criticized the Alien and Sedition Acts pushed through by the Federalist Party in 1798. In one of his first steps as president, he used the pardon power to release individuals punished and imprisoned under the Sedition Act (Smith 1956, 268). His first inaugural address on March 4, 1801, announced, "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it" (Schlesinger and Israel 2010, 16). That spirit of tolerance did not extend to Aaron Burr. Instead, Jefferson chose to act against legal and constitutional principles in a concerted effort to convict him. As will be explained, the Burr trial has been misinterpreted by federal courts and the Justice Department to sanction the state secrets privilege used from 1953 to the present time to deny private litigants access to executive branch documents.

Jefferson's Public Charge

In his annual address of December 2, 1806, President Jefferson alerted Congress to a combination of armed individuals in the Western Territory (west of the Allegheny Mountains) planning to carry out a military expedition against Spanish possessions. By proclamation, he had taken measures to suppress the insurrection. (1) Responding to this message, Representative John Randolph introduced a resolution on January 16, 1807, requesting Jefferson to lay before Congress information on this illegal combination of private citizens. The resolution passed, 109 to 14. (2)

On January 22, President Jefferson responded to this resolution by sending a message to Congress placed in the legislative record under the heading "Burr's Conspiracy." Jefferson acknowledged that little of the information he possessed had been given "under the sanction of an oath, so as to constitute formal and legal evidence." The letters he received often contained "such a mixture of rumors, conjectures, and suspicions, as renders it difficult to sift out the real facts, and unadvisable to hazard more than general outlines, strengthened by current information, on the particular credibility of the relator." Neither "safety nor justice will permit the exposing of names, except that of the principal actor, whose guilt is placed beyond question." He identified the "prime mover" as Aaron Burr. Having named someone guilty of a crime, Jefferson continued to underscore the lack of confidence in the information he received: "The grounds of these intimations being inconclusive, the objects uncertain," the only available measure "was to urge the informants to use their best endeavors to get further insight into the designs and proceedings of the suspected persons, and to communicate them to me." (3)

In receipt of dubious information, Jefferson decided "to send to the scene" someone in "whose integrity, understanding, and discretion, entire confidence could be reposed," with instructions to investigate the plots, discover the designs of the conspirators, "arrest their means, bring their persons to punishment, and to call out the force of the country to suppress any unlawful enterprise in which it should be found they were engaged." He noted that a letter received from General James Wilkinson on November 25, 1806 (dated October 21) was written "partly in cypher and partly oral." It described the designs of Burr, "exaggerating his resources, and making such offers of emoluments and command, to engage him and the army in his unlawful enterprise as he had flattered himself would be successful." (4)

According to Wilkinson's letter, Burr appeared to contemplate "two distinct objects, which might be carried on either jointly or separately, and either the one or the other, as circumstances might direct." One objective was to sever from the United States the land west of the Allegheny mountains, including Kentucky and Tennessee. The second objective was to attack Mexico to free it from Spanish rule. Having discovered that the attachment of the Western Territory to the Union was too firm "to be shaken," Jefferson said that Burr decided to "seize on New Orleans, plunder the bank there, possess himself of the military and naval stores, and proceed on his expedition to Mexico." (5)

On the basis of this information, Jefferson ordered army regulars and the militia to seize boats and stores provided for Burr's venture, arrest persons concerned, and suppress "the enterprise in its outset." (6) Because of presidential initiatives, the conspirators "cannot threaten serious danger to the city of New Orleans."' Several individuals associated with Burr, including Erick Bollman and Samuel Swartwout, were apprehended by the military and transferred to the East Coast for trial. (8)

Analysis of this conspiracy is difficult because historians sometimes choose to either demonize or idolize Burr (Pratt 1945). Other studies, without citing evidence, claim he intended to assassinate President Jefferson and overthrow the government in Washington, DC (Shafroth 1932, 671). Two witnesses for the government presented wholly implausible testimony that Burr with 200 men could drive President Jefferson and Congress into the Potomac River and with 500 could take New York City (Robertson 1879, 1:562, 566-67). Book-length treatments of Burr's trial sometimes lack documentation (Beime 1959). Gore Vidal's novel on Burr mixes fact and fiction, often with little distinction between the two (1973).

Congress Asked to Suspend the Writ

Drawn from British precedents, the writ of habeas corpus developed into the right of a prisoner to seek release from unjustified confinement. It became a symbol of individual liberty against executive abuse (Duker 1980). One of the first moves to strip Burr and others of their constitutional rights was to deny them access to the writ. Senator William Branch Giles of Virginia, with close ties to Jefferson, introduced a bill to suspend the constitutional privilege for three months. Quickly passed, the bill was sent to the House of Representatives "in confidence" (to be debated in secret) with a request that the House concur "as speedily as the emergency of the case shall, in your judgment, require." (9)

Why suspend the writ? The information Jefferson provided Congress indicated no signs of an emergency. His message of January 26, 1807, reported that Bollman and Swartwout had arrived in Washington, DC, to face prosecution. According to a letter from Wilkinson to Jefferson, Peter Ogden (a Burr associate) and James Alexander (an attorney who requested a habeas writ for Bollman) had been charged with "crimes." (10) Although the Sixth Amendment states that persons accused of a criminal offense shall have the right of "assistance of counsel for his defense," the administration appeared ready to punish Alexander for providing that constitutional support.

The House made short work of the Senate's request that the bill to suspend habeas corpus be debated in secret. Representative Peter Early thought a previous order "should be taken to remove the injunction of secrecy. To open the doors and admit strangers to hear the debate, and yet continue the injunction of secrecy on members would present a singular spectacle." (11) The Speaker of the House decided that the motion to open the doors was in order. The vote to debate the Senate bill in public passed by the lopsided vote of 123 to three. (12)

House debate on the Senate bill clarified that suspension of habeas corpus "in certain cases" referred to persons "charged on oath with treason, misprision of treason, or other high crime or misdemeanor." (13) Misprision refers not to treasonous activities but to concealment of treason by someone who did not participate in treason. Under Article III of the Constitution, treason against the United States "shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." No person shall be convicted of treason "unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." Article III further provides that Congress "shall have Power to declare the Punishment of Treason."

Legislation passed on April 30, 1790, provided for the punishment of certain crimes. Persons adjudged guilty of treason against the United States "shall suffer death." Under Section 33 of that statute, the manner of inflicting death "shall be by hanging the person convicted by the neck until dead" (1 Stat. 119). Those who conceal the commission of treason "shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars" (1 Stat. 112, sec. 2). Any person accused and indicted of treason "shall have a copy of the indictment, and a list of the jury and witnesses," delivered at least three days before he shall be tried. Every person accused of treason shall be allowed and admitted to make his full defense "by counsel learned in the law" (1 Stat. 118, sec. 29).

Prompted by public charges against Burr in 1807, the House debated for three months the bill to suspend habeas corpus in cases of treason. To Representative William Burwell, the conspiracy described by President Jefferson "was once formidable, extensive, and threatening; but it has been dissipated by the vigilance of Government." (14) He recalled that in two previous instances (the Whiskey Rebellion and the Fries Rebellion), there had been insurrections that "defied the authority of Congress, and menaced the Union with dissolution," but in neither case did Congress suspend the constitutional right of habeas corpus. (15) With regard to the Burr conspiracy, Burwell...

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