Symposium: It must be nice to have John Marshall on your side

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, and the co-author of “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”

Two centuries after his death, Chief Justice John Marshall still presides over the Supreme Court. His larger-than-life statue greets visitors. During investiture ceremonies, new members sit in his chair. And the justices cite him whenever possible. This term was no exception: Marshall authorized the Manhattan district attorney to subpoena President Donald Trump’s financial records. Or so Trump v. Vance would suggest. Chief Justice John Roberts’ majority opinion referred over and over again to Marshall’s seminal rulings from Aaron Burr’s treason trials. In United States v. Burr (1807), we learn, Burr, Marshall and President Thomas Jefferson scrimmaged over the production of documents: Marshall issued a ruling, Jefferson acquiesced and Burr got what he wanted.

Alas, Roberts recounted a sanitized version of this seminal dispute. The history, which I discuss in a new essay, is far more complicated. Jefferson repeatedly ignored Marshall’s decisions. Instead, he voluntarily provided redacted copies of the documents. Burr demanded Marshall take further action, but the chief justice did nothing. None of this history proves that Vance was wrongly decided. Rather, Vance followed an all-too-common practice on the court: cramming novel, expansive constitutional theories into Marshall’s capacious rhetoric. This symposium post will carefully parse what Marshall and Jefferson actually said and did during the Burr episode. My research should cast some doubt on the court’s unyielding obeisance to the great chief justice and his one-sided accounts of constitutional law.

Between March and October of 1807, Burr stood for two treason trials stemming from his alleged plot to form an independent country in the southwestern United States. Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued 17 written opinions and delivered several shorter decisions from the bench that all together spanned more than 200 pages in the reporter. In the end, based on Marshall’s narrow construction of the crime of treason, the jury acquitted Burr of both the felony and the misdemeanor charges.

Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Burr asked the court to issue a subpoena to Jefferson to appear in court and produce a document. In particular, Burr sought for his defense an 1806 letter from General James Wilkinson to Jefferson. U.S. Attorney George Hay argued that Jefferson was absolutely immune from a subpoena.

Marshall agreed with Burr and rejected Jefferson’s claim of absolute privilege. On June 13, 1807, Marshall “commanded” Jefferson to personally appear in Richmond. Moreover, Marshall ordered Jefferson to “bring with you the letter from General James Wilkinson.” In Vance, Roberts described a letter that Jefferson wrote to Hay one day earlier: The president, Roberts recounted, “wrote to the prosecutor indicating that he would — subject to the prerogative to decide which executive communications should be withheld — ‘furnish on all occasions, whatever the purposes of justice may require.’” However, when Jefferson sent this letter, he did not yet know about Marshall’s subpoena — Hay did not inform Jefferson about the subpoena until June 14. This timeline is critical: Jefferson offered to voluntarily provide documents in the absence of a subpoena. Alas, the court in Vance confused the chronology.

Moreover, Roberts omitted a critical word from Jefferson’s letter to Hay: voluntarily. Before the subpoena was issued, Jefferson wrote to Hay: “Reserving the necessary right of the President of the US. to decide, independantly [sic] of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom, I assure you of my readiness, under that restriction, voluntarily to furnish on all occasions whatever the purposes of justice may require.” Jefferson chose to voluntarily comply with a request to provide a redacted version of the letter, subject to his own discretion. He was not submitting to the court’s jurisdiction.

Roberts also recounted a letter Jefferson sent to Hay on June 17 — after Jefferson learned of the subpoena. Roberts wrote that Jefferson’s “‘personal attendance,’ however, was out of the question, for it ‘would leave the nation without’ the ‘sole branch which the constitution requires to be always in function.’” But Roberts did not mention that the subpoena demanded Jefferson’s personal attendance. Here, Jefferson actively flouted the subpoena. Nor did he send anyone in his place. Vance glanced over this disobedience.

Next, Roberts wrote, “Before Burr received the subpoenaed documents, Marshall rejected the prosecution’s core legal theory for treason and Burr was accordingly acquitted.” The implication of this sentence is that Marshall ruled before Jefferson was able to send the letter. Not at all. More than two months elapsed before Burr was acquitted on August 31, 1807. During that time, Jefferson refused to comply with Marshall’s order. He had no intention to send the letter. Burr asked Marshall to enforce the subpoena. Marshall took no action. The Office of Legal Counsel observed “there is no indication that Chief Justice Marshall took any further steps in the matter.” Vance sidestepped the fact that Jefferson openly defied Marshall.

Later in the opinion, Roberts turned to Burr’s misdemeanor trial, during which a fight over letters from Wilkinson to Jefferson re-emerged. Roberts wrote that Burr “renewed his request for Wilkinson’s October 21 letter, which he later received a copy of, and subpoenaed a second letter, dated November 12, 1806, which the prosecutor claimed was privileged.” This packed sentence, written with surgical precision, masks over a critical conflict. Burr refused to accept a copy of the October 21 letter. He requested a subpoena for the original document. Keep in mind, before the days of a Xerox machine, there was no guarantee a hand-written copy was complete and accurate. Marshall ordered Jefferson to provide the original. But Jefferson provided only a scrivener’s copy. Once again, the president disregarded the chief justice’s commands.

Next, Roberts explained that Marshall ordered the production of Wilkinson’s November letter. However, Roberts added, “that decision was averted when the misdemeanor trial was cut short after it became clear that the prosecution lacked the evidence to convict.” That description isn’t quite right. Hay produced a redacted version of the November letter before the trial concluded. And Marshall took no further action to obtain the complete document. Marshall may have asserted the judicial process against the president, but he did nothing when that assertion was ignored.

It is difficult to summarize precisely what precedents were set during the Burr trials. Through their words, both Jefferson and Marshall expressed a broad conception of their respective powers. Jefferson asserted an absolute right to withhold documents, and he agreed to provide evidence to the court only voluntarily. Moreover, he rejected the power of the court to command the president’s attendance in court. In contrast, Marshall asserted a power to compel the president’s attendance in court and to demand the production of documents. Only complete documents could be submitted, and the court — not the president — would decide what portions to share with the defendant.

Yet, through their actions, both Jefferson and Marshall acted in a far more conciliatory fashion. Jefferson in fact gave a redacted version of the November letter for Burr’s defense. Marshall, after issuing his broad ruling, declined to hold the president in contempt. He simply proceeded with the trial and let the issue linger. In 1973, the Office of Legal Counsel offered a pithy summary of the trials:

In short, it would seem that the President asserted full power to decide what could and could not be disclosed safely, but in fact gave the court most of the requested material. Marshall inconsistently asserted full power in the premises, but immediately qualified the assertion with an indecisive comment [th]at the court would never “proceed against the President as against an ordinary individual.”

If I had to score this match, the presidency prevailed, narrowly. Regrettably, Vance discarded the complex history between Marshall and Jefferson. And this history imposes important limitations on the judiciary’s powers. But according to Vance, Marshall was triumphant, and Jefferson was defeated. (Marbury v. Madison, redux!) The Burr trials, however, cannot bear the weight that Vance placed upon them. The tense clashes between the branches undermine the absolute certainty with which the court approached the separation of powers.

In the musical “Hamilton,” Jefferson, Burr and James Madison are jealous of Alexander Hamilton’s close relationship with President George Washington. They sing that “it must be nice to have Washington on your side.” Vance sounds a similar tune: It must be nice to have Marshall on our side. The Roberts court, alas, only sang from the judiciary’s score. The executive’s verses fell silent.