The New York Review of Books

To the Editors:

After reading the first of two reviews [NYR, May 2 and May 16] of my volume on Jefferson’s second term by Garry Wills, a friend of mine remarked that I was one of the victims of Watergate. That comment I transmitted to Mr. Wills promptly, expressing at the same time some surprise that he had manifested interest in only two or three of the 668 pages of text in my book. He surveyed a little more of my territory in his second review, though he looked little beyond the Burr trial. To the best of my recollection I have never replied publicly to a review of any book of mine and I am not disposed to do so now, but perhaps I owe the public some further comment on the question of subpoenas to the President of the United States.

I devoted considerable space to the first of the sort, which was issued to President Jefferson early in the proceedings against Aaron Burr. Mr. Wills barely mentions this, but he is deeply interested in a second subpoena. Like most if not all of those who have written about it, I described this as directed to Jefferson. After some impressive detective work, Mr. Wills concludes that no subpoena was thus addressed, though one was issued to the District Attorney, George Hay. Since nobody has yet found the particular document or documents, and since the records are incomplete, one cannot be sure, but Mr. Wills may well be right in this, as I quickly told him. I also told him that I regard this question of designation as unimportant. A subpoena called for the delivery to the court of a letter of November 12, 1806, to the President from General Wilkinson that the President had already entrusted to the District Attorney. That official sent this or another subpoena to Jefferson and was guided by the latter’s instructions. The important question is: what answer was made to this subpoena for a presidential document?

While never undisposed to provide materials that were relevant to the case of Burr, Jefferson held that some things, desired by the defense but not bearing on the case, might have to be withheld in the public interest. The question was raised in connection with the November 12 letter, for which a subpoena was issued after Burr’s acquittal for treason. The net result was that Marshall accepted a document from which Jefferson had deleted certain passages of a confidential nature that he regarded as irrelevant. I have shared with Mr. Wills some details of this complicated episode. I cannot describe it adequately here, but I can report that at this stage Marshall seemed to be trying to avoid responsibility and was charged with ambivalence by both sides. I do not state in my book that some days after the Chief Justice accepted Jefferson’s “return” without comment, another attempt was made in Burr’s behalf to obtain this entire letter. Marshall then remarked that “after the president had been consulted, he could not think of requiring…exhibition of those portions of the letter which the president was unwilling to disclose.” (The Trial of Aaron Burr, taken in shorthand by T. Carpenter [1808], III, p. 254.)

The expression “executive privilege” was not used in this connection, but the Chief Justice certainly granted some recognition to presidential prerogative, as the President did to the authority of the court. I am grateful for the light Mr. Wills has shed on Burr’s trial for misdemeanor, which I may have slighted somewhat, by contrast with his treason trial, believing that its outcome was a foregone conclusion. But I can see no real analogy between the situation of Thomas Jefferson during the Burr trial and that of Richard Nixon under threat of impeachment. Nor can I see any need to go back to the third President to make a case against his beleaguered successor.

Dumas Malone

Charlottesville, Virginia

Garry Wills replies:

Neither Dumas Malone nor Thomas Jefferson will be a victim of Watergate. I stressed in both parts of my review that Malone’s monumental volumes transcend the topical disputes into which they were bound to be drawn. Still, Malone’s own letters to the press admit that these disputes make his research a crucial element in ongoing debates of some importance. John Ehrlichman’s subpoenas for White House material—unlike the subpoenas issuing from a House committee or a special prosecutor—exactly parallel Burr’s call upon the President for material needed in his defense as a private citizen on trial. If a presidential privilege, of whatever sort, was asserted and vindicated in the Burr trial, it is important that we know what kind of privilege, what its reach was (if any), what its limits might be (if any). These matters call for immediate attention—and Malone’s more general claim to scholarly regard I leave as confidently as he can himself to the future attention of historians.

Malone handsomely admits there is no solid evidence for a second subpoena directed to Jefferson himself—the main factual point I tried to make. Let me be as forthright in admitting that I tried to prove too much in saying that a second reference to “the subpoena” was unlikely in Hay’s letter of September 5. Malone’s assistant let me know, what I had meanwhile verified at the Library of Congress, that what was read to me as “undeciphered” in the transcript at Malone’s office was not indecipherable in the original, but only an obvious abbreviation (“sbpa”). My arguments for its nonappearance at all are really arguments for its being applied, as was the first mention of a subpoena, to Hay’s subpoena, not to a new one naming Jefferson—a point Malone concedes in granting that there is still no direct evidence for such a Jefferson subpoena.

So now we agree on the facts, and further argument concerns interpretation. Malone feels no problem in granting that a second subpoena to Jefferson is not at issue, because he thinks this point “unimportant” with regard to the matter of privilege. The first thing to be said of this view is that Jefferson emphatically disagreed with it. When he first heard rumors that a second subpoena might issue to him, he wrote Hay (on August 7, 1807) to forestall that specific development, but not to prevent a subpoena from going to anyone else who might possess this letter: “Possibly the Atty Genl might have delivered it [i.e., the letter] to you. If not, he has it, & he is the person to whom a subpoena to bring that or any others into court, may be at once addressed.”

In other words, Jefferson did not think any subpoena in quest of the letter was really directed to him, implicitly if not expressly. More important, neither did the defense. When Hay, who actually possessed the letter, put some quite limited restrictions on its production (that it could be shown in its entirely to the court and to defense counsel, but only with deletions to Burr and the public), the charge of non-compliance was not directed at the President, but only to George Hay. And Hay was not “the President’s lawyer,” as some accounts would have it, but the federal prosecutor. Jefferson had no standing in the court, and no liability to it after the second subpoena went to a different party from the first one, superseding it. But then, after raising the question of non-compliance against Hay, the defense expressly dropped it—as I pointed out in my review.

It is important to pause here and state the legal situation. Although all sides had assumed, too facilely, that the November 12 letter was covered by the first subpoena to Jefferson, that matter became moot when the second subpoena issued to Hay and enforcement of that subpoena (by holding Hay in contempt) was expressly waived by the defense. At this point, all direct court compulsion to render up the letter ceased. The defense had deliberately forfeited its claims along this channel. Naturally, it had its reasons. Burr did not want the letter; he wanted to continue the case—in effect, aborting it—when the letter, for whatever reason, did not appear.

Since there was no direct court compulsion on Jefferson at this point, he could not, as older scholars wrote, be “defying” or “disobeying” a legal exaction. Malone talks of the President’s partial response as admitted under an absolving “privilege.” But one needs no absolution from a nonexistent order. Jefferson could simply have concurred with the defense, as Hay wanted him to do, and the case would have lapsed. The only compulsion on him was internal—his desire to keep the case against Burr alive. His response, then, was not a defiance (however limited) to a legal demand, but a compliance with the judge’s suggestion for a compromise. The process, when Jefferson re-entered it at this point, was one of negotiation, not enforcement, and all sides had suggested compromise: Jefferson took the court’s suggestion.

Malone seems to think that for the court to suggest that compromise was an act of deference to the president’s office, granting the office some kind of “prerogative.” Malone now admits that this is not “executive privilege” in the technical sense (i.e., the right to deny internal communications of the executive branch to Congress), since Congress was not involved in the Burr trial; and he rightly says the term was not used in his book. But I quoted Malone’s use of the term from his letter to The New York Times, written after completion of the book and applying the book’s analysis to current events. At any rate, Malone still argues for some kind of undefined privilege parallel to the mythical “executive privilege”—i.e., one attaching to the President himself, by virtue of his office.

His assistant even relates to the “doctrine” of executive privilege one sentence of Marshall’s September 4 ruling: “I do think that a privilege does exist to withhold private letters of a certain description” (R ii 536; cf. C iii 36-37).¹ But this, even on the face of it, does not describe a privilege inherent in the presidency, merely one proper to the document and its contents. In fact, that is the only kind of privilege Marshall would admit; in his June 13 ruling he laid down this principle: “The propriety of introducing any paper into a case, as testimony, must depend on the character of the paper, not on the character of the person who holds it” (R i 182). This was generally admitted by all parties in the discussion. Indeed, the Burr defense kept raising the spectre of presidential privilege—as an accusation hastily rebuffed by the prosecution.

Only twice, early in the discussion of the first subpoena, did the prosecution tentatively bring up the matter of a privilege inherent in the presidency—apparently because they were rather desperate at first for ways to counter the unexpected demand from Burr. Both claims were voluntarily withdrawn long before Marshall refused to allow them. Marshall noted in his ruling that Hay at first admitted that a general subpoena could be issued to the President, but not a subpoena duces tecum—alleging the inconvenience of a busy President’s having to attend in person (R i 180). But the defense lawyers quickly surrendered the demand for personal attendance, and said all they wanted were the papers described (so Luther Martin at R i 116, and Wickham at R i 121-2, 124). Marshall gave a preliminary expression of support for the defense at R i 127, and the prosecutors abandoned the assertion that no subpoena duces tecum could reach the President because of his office.