The Volokh Conspiracy
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New Essay: "Presidential Subpoenas during the Burr Trials"
The full history of the proceedings, not the sanitized version presented in Trump v. Vance
For the past two years, I have been sitting on an essay I wrote about Aaron Burr's treason trials. By 2018, I anticipated that Special Counsel Mueller would subpoena President Trump. And that subpoena would trigger a Supreme Court case. Thankfully, we never crossed that threshold. But the Manhattan District Attorney and the House of Representatives did subpoena the President's financial records. Alas, I decided to sit on the essay again. It is never a good idea to publish something that will soon be preempted by the Supreme Court.
Now that Vance and Mazars were finally decided, I can share my essay on SSRN. It is titled Presidential Subpoenas during the Burr Trials. Here is the abstract.
Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall's narrow construction of the crimes 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, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson's letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.
As the deliberations proceeded, Hay would frequently write to the President, who travelled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government's positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redactions. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.
Because of the lengthy nature of the proceedings—in which Marshall and Jefferson took different positions at different junctures—it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.
Alas, Vance offered a sanitized version of the Burr trials. In this essay I flagged where Chief Justice Roberts went awry. And regrettably, Justices Thomas and Alito signed onto this flawed historical account. I will detail this analysis in another post, where I will link to my new SCOTUSBlog symposium essay.
This essay is still in draft form. I welcome comments or suggestions.
