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A Special Supplement: Impeachment

Jefferson for his part was prepared to use just such a loophole. Before receiving Marshall’s decision on the subpoena, Jefferson pointed out in a letter to Burr’s prosecutor that Burr was the central figure in an alleged conspiracy. Other trials linked with Burr’s were being held “in St. Louis and other places on the western waters.” To comply with calls for personal appearance at these various trials “would leave the nation without an executive branch,” while the executive “is so constantly necessary, that it is the sole branch which the Constitution requires to be always in function.” Jefferson said the Constitution “could not then mean that it [the executive] should be withdrawn from its station by any coordinate authority.” But he did offer to give testimony by deposition, an offer which was never taken up by the defense.

In a second letter to the prosecutor two days later, after seeing Marshall’s opinion, Jefferson took a stronger line, though only in this private letter and not in a public declaration to the court. “The leading principle” of the Constitution, he insisted, was the independence from each other of the three branches of government. “But would the executive be independent of the judiciary,” he went on, “if he were subject to the commands [italics in original] of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?” This was hyperbole of Nixonian proportions. Marshall was certainly not trying to “bandy him from pillar to post.”

Jefferson indicated that he was prepared to resist a subpoena for his personal appearance by force, and that the Constitution had given him more force than the Chief Justice with this very purpose in mind! “The intention of the Constitution,” as Jefferson put it, in stately but fallacious language, “that each branch should be independent of the others, is further manifested by the means it has furnished to each, to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the executive.”10 Jefferson had an army and navy, the Chief Justice only a handful of marshals. The corollary would be that the President could override the Supreme Court because he had more battalions than the Chief Justice. This was on a par with Jefferson’s conduct generally in the Burr case, which remains a blemish on his libertarian record.

But after all these bold, though private, affirmations of defiant power, Jefferson hedged by supplying the desired document to the prosecutor. The prosecutor—to quote Mr. Justice Burton’s account again—“later announced that he had the requested letter in his possession and was ready to produce it.” The submission of the letter by the President was thus voluntary—in form at least. But with it Jefferson made sweeping claims of executive privilege which Nixon can also use. “All nations,” Jefferson wrote the prosecutor, forgetting that most of the nations he referred to were hardly models of freedom for our young Republic, “have found it necessary for the advantageous conduct of their affairs, [that] some of these executive proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of his case, must be the sole judge of which of them the public interests will permit publication.”11 Such was the heady effect of the presidency even on Jefferson when he set out to wreak vengeance on a hated rival.

But the battle between Jefferson and Marshall was like one of those bouts in which the antagonists make the most devastating faces at each other, emitting blood-curdling screams, yet somehow never come to blows. Jefferson’s sweeping assertions of executive privilege were confined to private correspondence. Attorney General Rogers in 1958, during the Eisenhower Administration, nonetheless cited them as precedents in a memorandum which asserted—in more sweeping fashion than ever before—the President’s power to withhold information from Congress. They will undoubtedly be cited again as precedents for withholding information from the courts should Nixon’s testimony be sought, or White House documents subpoenaed, in prosecutions growing out of the Watergate scandal.12

The Rogers memorandum, in defense of the White House claim to “uncontrolled discretion” to withhold information, said Marshall ruled in the Burr case that “the President was free to keep from view such portions of the letter which the President deemed confidential in the public interest. The President alone was judge of what was confidential.” A painstaking study by Raoul Berger for a forthcoming book on executive privilege has demonstrated that this completely overstates the case and the circumstances.13

Actually, on the document subpoenaed, as on the personal appearance of Jefferson, a confrontation was avoided. The prosecutor, George Hay, had objected that it was improper to subpoena the document because it was a private letter to Jefferson and “might contain state secrets, which could not be divulged without endangering the national safety.” Jefferson nonetheless furnished it “voluntarily,” so to speak, and left it to Hay “to withhold communication of any parts of the letter which are not directly material for the purposes of justice.”14 He made no claim that it contained state secrets.

Jefferson neither tried to exercise the absolute privilege he had claimed nor delegated it to Hay. On the contrary, as Berger points out, Hay emphasized that “he was willing to show the entire letter to the court to suppress so much of the letter as was not material to the case.” Far from asserting absolute privilege, Berger shows, “the government was perfectly willing to leave it to the court to determine whether portions of the letter were in fact privileged. It insisted only that the portions so adjudged should be withheld from the defendant.” More will be heard of this argument in the Burr case as similar issues arise in the trial of the Watergate cases.

The issue in the Burr trials was complicated because the defense objected, as Berger relates, “that the court could not judge whether the confidential portions were relevant to the defense until that defense was fully disclosed, and that defendants were not required to make such disclosure until they had put in their case.”15 The issue was never resolved. Though Marshall issued at least one subpoena to Jefferson, and perhaps a second,16 neither was actually served on the President and he succeeded in avoiding an appearance. As for the Wilkinson letter to Jefferson, it was never introduced into evidence, though Jefferson—as we have seen—supplied a copy to the prosecutor. A subpoena duces tecum was finally served on Hay.17 But for some reason the defense never pressed the issue to a conclusion.18 The battle ended in a draw; Marshall laid down the law, but was unable to enforce it against a recalcitrant President. That has been the pattern ever since.

What history shows is that any President who chooses to defy a subpoena, as Nixon has said he will, can get away with it, though the defiance may bring dismissals in criminal cases and lost verdicts by default in civil cases. But the President himself can go scot free. That leaves only impeachment. Even on impeachment a President cannot be compelled to testify before the Senate when the charges against him are tried, or even to answer by deposition if he chooses not to. But not to answer those charges would be to abandon a full defense and make his acquittal less likely.

II

Impeachment is a form of trial by legislature. Its roots go back to a dim past when parliaments in France and England were more courts than legislatures. As the political power of the English Parliament grew, it began to use impeachment against corrupt or tyrannical officers of the Crown. Charges were brought by the Commons and tried before the Lords. The first impeachment is usually given as the Earl of Suffolk’s case in 1386. In the revolutionary seventeenth century, impeachment was used by the House of Commons to terrorize the King’s ministers and finally to establish parliamentary supremacy. Once this was achieved, the use of impeachment for political purposes died out. The seven years it took the Commons to try Warren Hastings by impeachment (1788-1795) finally demonstrated that it was too cumbersome—and repugnant—a process for ordinary criminal prosecution. The last trial by impeachment in England was in 1806.

The Framers of the Constitution were well aware of the abuses which mark trial by legislature. They outlawed one form altogether: the bill of attainder by which earlier parliaments, with or without hearing evidence, simply found a man guilty by majority vote. This was a device much used by subservient Parliaments under Tudor despotism and again by a revolutionary Commons in the seventeenth century. The outstanding example was the famous Earl of Strafford case where—realizing that the House of Lords was not convinced by the evidence in his impeachment—the Commons dropped that procedure, voted the Earl guilty by bill of attainder, and had him executed. The Puritans, our spiritual ancestors, were often as ferocious as Bolsheviks.

In writing the power of impeachment into the Constitution, the Framers sought to shut the door firmly on such excesses. The Constitution forbids trial by impeachment for ordinary citizens and ordinary crimes. The impeachment procedure was limited to trials of the President, the Vice President, “and all civil officers of the United States.” In case of conviction the penalty may not be more than “removal from office and disqualification to hold any office of honor, trust or profit under the United States.” Any other punishment for any crime involved can be imposed only after separate trial in a court of law. Impeachment was to be a weapon for policing conduct in office.

The Framers were principally concerned with providing a check on the President. The other officers were added to the impeachment clause in the final days of the Convention as a last-minute afterthought and were accepted without debate. During earlier discussion of the impeachment clause, George Mason of Virginia—more responsible than any other statesman for the Bill of Rights—spoke of impeachment as a necessary weapon to deal with “attempts to subvert the Constitution.”19 The words seem to fit the revelations being generated by Watergate. When Senator Ervin, who has seen them, says the domestic espionage plans in the as yet unpublished Dean documents display “the same mentality employed by the Gestapo in Nazi Germany,”20 the words Colonel Mason used are not too strong to be applied today.

Much fresh material for an exploration of the impeachment process and its history is provided by Raoul Berger and Michael Les Benedict. Benedict offers a new view of the politics in Andrew Johnson’s trials, the only impeachment of a President. Berger’s book brings together a fascinating collection of his law review articles on the tantalizing legal problems involved in impeachment. Both books began long before Watergate as recondite studies into long forgotten questions, but they come off the press as urgent and controversial, though neither foresaw, or could have foreseen, how rapidly unexpected developments like the burglary of Watergate would make impeachment a live issue again.

  1. 10

    The letters may be found in Randall’s Life of Jefferson (New York, 1858), vol. 3, pp. 210-212.

  2. 11

    Ibid., p. 211.

  3. 12

    The memorandum may be found at pp. 551-566 of Hearings by the Subcommittee on Separation of Powers, of the Senate Judiciary Committee, 92nd Congress, 1st Session, on Executive Privilege: The Withholding of Information by the Executive, and S1125, July 27 to August 5, 1971, over which Senator Ervin presided.

  4. 13

    The preliminary results of his researches—drawn upon here—were published in “Executive Privilege v. Congressional Inquiry,” UCLA Law Review, vol. 12, No. 5, August, 1965. The memo is quoted on pp. 1109-1110.

  5. 14

    Ibid., pp. 1107-1108. The italics seem to be Berger’s.

  6. 15

    Ibid., p. 1108.

  7. 16

    Beveridge’s surmise in his biography of Marshall, vol. 3, p. 522, based on a reference in a letter by Jefferson to the prosecutor.

  8. 17

    This, the most elusive fact amid all the complexities which bedevilled me in preparing this article, I finally pinned down on p. 520, vol. 3 of Beveridge’s Marshall. Beveridge gives as his authority David Robertson (Trials of Aaron Burr, vol. 2, pp. 513-514), the reporter who covered Burr’s trials and who published his account in 1808. I was unable to locate a copy.

  9. 18

    Beveridge’s Marshall, vol. 3, p. 522.

  10. 19

    In Madison’s “Notes” in Documents Illustrative of the Formation of the Union (Government Printing Office, 1927), p. 691.

  11. 20

    Washington Post, June 1, p. 1, in an interview the Senator gave in Winston-Salem, North Carolina.

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