The Magazine

Clash of Titans

A game of hardball among the Founders.

Nov 26, 2012, Vol. 18, No. 11 • By J. HARVIE WILKINSON III
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Many Americans may know the name of Aaron Burr, though not much more. But in 1807, the prosecution of Burr was a very big deal. Imagine: a former vice president of the United States on trial for treason! 

Aaron Burr

Aaron Burr

So R. Kent Newmyer, professor of law and history at the University of Connecticut, has quite a story to tell, and he tells it well. The tale involves three men—Aaron Burr, Thomas Jefferson, and John Marshall—drawn almost fatefully together out of mutual dislike, even loathing. Around them is a large supporting cast—some of whom remain shadowy while others, most notably the lawyers at Burr’s trial, are brought successfully to life in Newmyer’s account.

The trial revolved around Burr’s mysterious activities on America’s Western frontier. Either he was intent on dislodging Spain from Mexico (though perhaps only in the event of a declared war), or on provoking the secession of the Western states from the Union. Newmyer wonders “if Burr himself really knew for sure what he planned to do” beyond resurrecting his own relevance to American life, and finding fame and fortune in the enticing Southwest. So widely mistrusted was Burr by many of his contemporaries—John Adams memorably called him the man who “must and would be something”—that President Jefferson suspected the worst. As did most Americans: The “packed courtroom often verged on chaos,” writes Newmyer. 

For many, the trial of a humbled blueblood such as Burr was first-class entertainment. According to one young witness, “the crowd soon divided into partisan rooting sections, with the preponderance of the ladies on Burr’s side of the courtroom.” Lawyers on both sides sought to play to public sentiment in hopes of burnishing their own reputations and influencing the verdict.

The trial took place in Richmond, and John Marshall presided over the fracas in his capacity as a Supreme Court justice riding circuit. At the outset, the defendant seemed to be in a bad way. America’s sense of nationhood was new and fragile, and Thomas Jefferson had as much as branded Aaron Burr a traitor in an address to Congress some six months before the trial began. Although Burr and Marshall were fellow Revolutionary War veterans, Marshall was an admirer of Alexander Hamilton, whom Burr had killed in a duel on the heights of Weehawken in the summer of 1804. And yet the jury acquitted Burr—or, more accurately, rendered an opaque verdict of “not proved to be guilty under this indictment by any evidence submitted to us.”  

How did the prosecution manage to squander its advantages? Well, for one thing, there were several glaring weaknesses in its case. Burr’s Western “army” was in reality an ill-equipped gaggle of 25 or 30 men, seemingly incapable of any operational success, much less “levying war” against the Union. Moreover, Burr was not even present when whatever passed for war was supposedly being levied. 

Burr also assembled a crack defense team, including the eminent John Wickham, “a lawyer’s lawyer and a consummate professional with a killer instinct.” But the stage manager of the defense was none other than Burr himself. Burr may not have been steeped in the niceties of legal doctrine, but, says Newmyer, “he knew what he needed to know and had a reputation for getting the job done.” He was a good trial lawyer, and, after all, “it was his own life that was on the line—a fact that concentrated his mind wonderfully.”

The fact of Burr’s acquittal owes much to the nature of the Constitution’s Treason Clause. The Framers had themselves recently been deemed treasonous for their activities against the British Crown, and they were not about to make this particular crime an easy one to prove. Moreover, treason was (as Marshall once put it) prone to “excite and agitate the passions of men”—a club too temptingly wielded against political enemies as much as real traitors.

The result was a high bar for conviction, requiring “levying War” against the United States or giving “Aid and Comfort” to the nation’s “Enemies.” Furthermore, “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.” It was altogether predictable that a clause such as this would become a lawyer’s feast, with terms that were hotly disputed during Burr’s trial and remain contested to this day. (As Justice Robert Jackson noted in 1945, “The little clause is packed with controversy and difficulty.”) For the most part, prosecutors have avoided treason charges altogether, especially when prosecutions under other federal statutes aimed at protecting national security might achieve much the same end. When Adam Gadahn was indicted for treason in 2006, it was the first such charge in more than a half-century.