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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We are left, finally, with Jefferson. Even the greatest of the Founders had their low moments, and among Jefferson’s was the trial of Aaron Burr. Jefferson was right to be concerned about Burr’s conduct: Communications from the West were poor, rumors abounded, and the prospect of a freelancing former vice president pursuing his own foreign policy was not amusing. The problem was that Jefferson’s desire to get Burr, well past any point of danger, became a near obsession—perhaps because of general mistrust or, perhaps, because Jefferson had never forgiven Burr for his tardiness in bowing out in favor of Jefferson in the disputed presidential election of 1800.  

At any rate, Jefferson personally assumed direction of the prosecution, writing letters to his ally, U.S. attorney George Hay, that, according to Newmyer, “were in fact instructions about litigation strategy: about the nature of the charges that should be brought, about evidence, about whom to call for witnesses and how to interrogate them.” The spectacle prompted Burr’s defense to term “the president’s interference with the prosecution .  .  . improper, illegal and unconstitutional.” Luther Martin claimed Jefferson had “let slip the dogs of war, the hell-hounds of
persecution, to hunt down my friend.”

Mixed with the high code of personal honor in the early 19th century was a startling amount of invective and vitriol. Partisanship was never far from the Burr trial. Not that partisanship is necessarily a bad thing: It imparts energy to politics, encourages participation in electoral pursuits, and frames choices for voters in a recognizable way. But given the stakes, both then and now, no one should suppose that disagreement will be dainty, and the gentlemen of the early 19th century could pummel with the best. The question, then and now, is what limits should partisans observe?

Jefferson was eager to unleash the full fury of prosecutorial power upon a personal enemy and political opponent. Had he succeeded, American politics might have taken a far different and more retributive course. As it is, the willingness to criminalize our political differences is bad enough. Not only through the discredited institution of the independent counsel, but through the executive branch itself, have questionable and marginal proceedings been initiated. Whether the behavior of a president, a sitting or former senator, or numerous subordinate executive officials is vain, greedy, evasive, or sleazy beyond measure is one question; whether it is criminal, not to mention impeachable or treasonous, is something else.

The dangers of executive abuses will only grow with time, as government agencies may be diverted from public purposes to personal or partisan ends. It is here that the Burr trial is instructive. Aaron Burr was a scoundrel; but, based on the evidence adduced, a traitor he was not. Had Jefferson succeeded in having him executed, Burr’s blood may have stained Jefferson’s hands throughout history. In that sense, Newmyer wisely observes that Marshall (and, ironically, Aaron Burr) saved Jefferson from himself. Burr’s acquittal was not an act of absolution for a devious and narcissistic man, but an act of national grace. It set limits on the partisan uses of executive power, without which the rule of law would snap.

 J. Harvie Wilkinson III, a judge on the U.S. Court of Appeals for the Fourth Circuit, is the author, most recently, of Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.