The
issues raised by Trump’s retention of
presidential documents (“It’s
not theirs, it’s mine”) – state secrets,
executive privilege,
and national security – are not new but
few people know that some
of these very same issues were raised by
Aaron Burr during his trial
for treason in 1807. The context was
different: Jefferson was the
sitting President and was not being
investigated. The incident
nonetheless reveals the fundamental flaws
in Trump’s logic.
Jefferson
was in power and was managing the trial
through the prosecutor.
During the trial, Jefferson refused to
produce documents requested by
Burr for his defense. The prosecution
argued that the materials
requested were “confidential,” they
contained “state secrets,”
and the president was privileged to
withhold them.
In
his
response to the subpoena,
Jefferson argued that as the
president
of the United States, he alone had
the right “to decide
independently
of all other authority, what
papers coming to him as president
the public interest permits to be
communicated and to whom.”
Burr
pointed
out that “the president is not
the keeper of any public
papers,” that “He has no public
office and can keep no public
papers. There are certain
departments
established by law to keep all
public papers and documents over
which
certain officers preside, but it
would be censurable, it would be
criminal [for the president] to
retain any public papers. They
should
all be distributed in the offices
of those departments.”
Jefferson
assured
the court of his “readiness,”
under the aforementioned
restrictions, “voluntarily to
furnish on all occasions whatever
the
purposes of justice
may require.”
Jefferson
believed he alone, not John Marshall who
was presiding, had the
absolute right to determine what justice
or the public interest
required. Trump appears to believe the
same thing. But this question
was already settled in 1803 in “Marbury v.
Madison,” wherein the
Chief Justice famously declared that it
was “emphatically the duty
of the Judicial Department to say what the
law is,” establishing
the doctrine of judicial supremacy.
Jefferson
disagreed
with Marshall. The President wrote
to the prosecutor that
“the gratuitous opinion in Marbury
v. Madison” should be “brought
before the public & denounced
as not law.” Jefferson
explained that, in his opinion,
the
powers of the president existed
“against any control which may be
attempted by the judges in
subversion of the independence of
the
Executive & Senate within
their peculiar department[s].” “On
this construction,” Jefferson
wrote, “I have hitherto acted, on
this I shall ever act.”
Jefferson
felt
so strongly about this that only a
few months before he proposed
to a Senator from Virginia to
“amend the error
in our constitution which
makes any branch independent of
the
nation,” since he believed that
“one of the great coordinate
branches of the government” (the
judiciary) had set itself “in
opposition to the other two” by
“protecting” Burr.
Astoundingly,
Jefferson
added that if Justice Marshall’s alleged
“protection of
Burr produces this amendment it will do
more good than his
condemnation could have done . . . [and]
if [Burr’s] punishment can
be commuted now for a useful amendment of
the constitution, I shall
rejoice in it.”
The
author of the Declaration of
Independence wanted complete
independence and absolute power to
decide for himself what was in the
public interest, he thought that the
system of checks and balances
was an error in the Constitution, and he
was willing to “commute”
Burr’s prosecution if that error could
be corrected by
constitutional amendment.
Clearly
we
cannot follow the lead of our beloved
Founding Father here. Our
system of checks and balances does not
permit a president to
prosecute or not based on whether he has
or does not have absolute
power, or to amend the Constitution to
prevent courts from doing
their duty – or to alone decide what
documents to keep on the basis
of privilege, state secrecy.
When
Burr’s
prosecutor stated that President
Jefferson “had reserved
to himself the province of deciding
what parts of the letters ought
to be published and what parts
required to be kept secret,” Burr’s
counsel declared: “In a government
of laws, where
majesty and prerogative are
proscribed and where the
authorities
of all the public functionaries are
to be exercised for the benefit
of the people, there are but few
instances in which the policy of
state secrecy can prevail.”
And
indeed
in such a system – “where majesty and
prerogative are
proscribed and where the authorities of
all the public functionaries
are to be exercised for the benefit of the
people” – there are no
instances where a former president may
decide that state secrecy or
executive privilege can be transformed
into “It's not theirs, it's
mine.”
This
commentary
is also posted on LA
Progressive
BC
Guest Commentator G. Whisper Stone
is
an independent scholar, formerly known
as Jennifer Van Bergen. She is
the author of “Malice:
Thomas Jefferson’s Conspiracy to
Destroy Aaron Burr”
(2019).
Under her former name, she published
(2001-2010) many ground-breaking
investigative
reports and legal commentary for
such online sites
as Findlaw, Raw Story, TruthOut,
TomPaine.com, and Counterpunch. She
was the first to write about the PATRIOT
Act, indefinite detentions,
and the Unitary Executive doctrine,
among other notable topics.
