• Email
  • Print

Executive Privilege: Jefferson & Burr & Nixon & Ehrlichman

In response to:

The Strange Case of Jefferson's Subpoena from the May 2, 1974 issue

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.

This argument was never again seriously used. Indeed, the Chief Justice rebuked Martin for raising the issue as if it had not been conceded (R i 127); and when he discussed the issue in his ruling, he admitted that the prosecution did not urge this any longer, but that he was entering on the subject to satisfy the scruples of the court itself (R i 182). Wirt, speaking for the prosecution, even spelled out the extent of its concession that there could be no objection to a subpoena duces tecum issued to the President:

The counsel for the prosecution do not deny that the general subpoena ad testificandum, may be issued to summon the president of the United States, and that he is as amenable to that process as any other citizen. If his public functions disable him from obeying the process, that would be a satisfactory excuse for his non-attendance pro haec vice, but does not go to prove his total exemption from the process. [R i 136]

Henceforth all parties agreed to this position. That was the first, ill-considered, quickly withdrawn argument from presidential privilege. Only one other argument of that sort was advanced, by the prosecution lawyer Alexander MacRae.

This was the argument for a confidentiality to be allowed government officers concerning their private dealings on public business (R i 133). But Botts (R i 235) and Martin (R i 128-9) showed that ii—as the prosecution granted—the President could be called to testify, he could be questioned about private conversations; and the same rule should apply to private correspondence, so long as it was relevant and material. Marshall ruled for them (R i 182). Despite a rather feeble return to this point by MacRae (R i 153), Hay never raised it and Wirt specifically disclaimed it, arguing that the only norm for withholding would be immateriality (R i 136-137). These, I repeat, were the only two claims made to privilege; and both were made feebly (one by a lawyer whose argument was very confused), only to be withdrawn by the majority and most important of the prosecution lawyers even before Marshall found against them.

Far more time was spent by the prosecution assuring the court that they were not arguing for any special privilege in the presidency than in advancing the two weak arguments that did make some claim of privilege. It was the strategy of the defense, and especially of Luther Martin (R i 127), to trap the other side in repugnant claims to executive immunity; and even after the prosecution forswore such claims, the defense liked to raise them again. This irked Hay, who said in court:

We admitted that the president might be subpoenaed as a witness, because we always thought so. We never clothed him with those attributes of dignity which gentlemen have accused us of ascribing to him. We know the president is but a man, though among the first of men; he is but a citizen, though the first of citizens. The president too knows that, like the great Cato, he ought to pay obedience to the laws of his country, and obey the commands of its courts of justice. [R 1 149; cf. C i 90]

Hay indignantly said “we had always denied the principle of secrecy” as a matter of the office itself, and only argued that the subpoena “is to be granted or refused, according as circumstances shall appear; that it will be granted, if substantial justice requires it” (C i 91). That is: the argument against a subpoena should be addressed to the nature of the case and of the document, not to who might possess the document—just the point Marshall would make in his ruling (R i 182). The defense went out of its way to insist that it made no special claim for the President as a man or the Presidency as an office, making him or it immune from ordinary laws that touch ordinary citizens (R i 131, 136, as well as 149; C i 75, 82, as well as 90-91). 2

But if they forswore all claims to privilege, what arguments were left for the prosecution to urge against the subpoena? The relinquishing of arguments from privilege becomes all the more striking when we see what weak reeds were left the prosecution after that renunciation. There were only two arguments they made at length and adhered to until the ruling, both of them procedural arguments—one on the proper time for issuing a subpoena and the other on the proper mode for establishing materiality in the documents called for. The principal argument of the principal prosecutor, George Hay, was that a subpoena could not issue yet because Burr had not formally been indicted (R i 122-123). This was the prosecution argument to which Marshall gave the most extensive treatment in his ruling (R ii 177-180); but it never had a chance of prevailing.

The only other argument advanced—though all the prosecutors used it in one form or another—was that Burr’s affidavit claimed the documents asked for “may” be material to his defense, and it should have sworn that they “are” material (R i 132, 136-137). This argument was again easily disposed of by Marshall (R i 188-189), and its underlying plea, that the letter might not be material, was destroyed by the fact that the President himself had referred to it in his letter to Congress as something that made him aware of a conspiracy. These were the arguments advanced by the prosecution and addressed in Marshall’s ruling (where a claim to privilege was also discussed, although the Chief Justice admitted that this was no longer urged by the prosecution).

At this point, we might notice an odd omission on the part of the prosecution—the argument from national security, the public good, or “secrets of state.” This matter had been discussed, and was ruled on by Marshall; but it was usually the defense that raised the possibility of some politically “inconvenient” material emerging as the result of the letter’s production—and then to admit the court’s right to suppress such material.

Luther Martin, the most aggressive of the Burr lawyers, put it this way:

No more of the letter is sought to be used as evidence than relates to the accused. When the letter is produced the court can judge of it, and withhold from the public any secrets which ought not to be disclosed. The mere possibility of its containing state secrets, is no reason why there should be suppression of what is no secret. [R i 165]

The prosecution could not make much of this point for two reasons. First, though Wirt referred to the possibility of loosely calling for any documents at all, even those that might contain “delicate foreign papers” (R i 138), as part of his argument that materiality had not been established, it was the prosecution’s position that no one knew what was in the letter, themselves no more than the defense, and therefore the defense could not establish materiality. This left them no room to claim that state secrets were in the papers. Second, even if there were secrets in the letter, the argument for their deletion was not an argument against a subpoena issuing (the point in dispute), but for making a case against total disclosure upon a return to the subpoena. The defense made this point several times (R i 136, 146, 165), and the prosecution did not (because it could not) respond to it—so Marshall’s ruling was expected, indeed inevitable.

But the discussion of these matters, principally carried on between the defense lawyers and Marshall, is important for the situation that would arise in September, when Hay did possess the November 12 letter, and was averring that matters of the public good made it necessary to delete sections of it. The compromise suggested then by Marshall had been agreed to already in the debate on the first subpoena, and was not a concession to the President’s dilemma at that point, but a matter of principle already arrived at with the agreement of the defense back in June.

Consider the relevant part of Marshall’s June opinion:

There is certainly nothing before the court which shows, that the letter in question contains any matter the disclosure of which would endanger the public safety. If it does contain any matter, which it would be imprudent to disclose, which it is not the wish of the executive to disclose; such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed. [R i 186, italics added]

There were two points to be established, then: first, that the sections to be deleted were immaterial to the case, and that disclosure—unnecessary on legal grounds—would have an adverse effect on the public good. This is exactly the position Luther Martin took in the argument preceding this opinion—“No more of the letter is sought to be used as evidence than relates to the accused [the test of relevance]. When the letter is produced the court can judge of it, and withhold from the public any secrets which ought not to be disclosed [the test of the public good].” Martin rightly distinguished this position—which looked to the nature of the evidence in the letter—from any mere “punctilio to the president” (R i 166), since the same argument could be made for any paper from any person (as this one was from a General), so long as the material was both immaterial and embarrassing to the public order.

This was the settled attitude of the defense, as John Wickham makes clear:

The writ of subpoena duces tecum ought to be issued, and if there be any state secrets to prevent the production of the letter, the president should allege it in his return; for at present, we cannot know that any such secrets exist. And the court, when his return is before them, can judge of the cause assigned. [R i 146]

No member of the defense denied that there were certain kinds of information that might have to be suppressed—but not because of a privilege attaching to the President; only to the nature of the information. The court was to judge. Benjamin Botts spoke for all of Burr’s lawyers when he said:

In a government of laws, where majesty and prerogative [i.e., privilege] are proscribed, and where the authorities of all the public functionaries are to be exercised for the benefit of the people, there are but few instances in which the policy of state secrecy can prevail. In the national intercourse with foreign states, where the relations present subjects fit for privacy, the rare duty of concealment may occur…. At this moment it will not be pretended that the public good can require that colonel Burr should not have the means from the departments required for his justification. [R i 134-135]

Thus there was never a demand for total disclosure of the subpoenaed documents.

When, four months later, the prosecution, in possession of another letter being called for, did assert that public good demanded a deletion of sections not material to the case, George Hay met the standards already established on principle in June. He offered the entire letter to the court, for it to decide on both the applicable criteria (materiality and public good). But the defense backed off from a position it had earlier upheld; it now demanded that Burr, too, be allowed to see the letter in its entirety, even if the court had already seen it and ruled that the deletions were acceptable under the standards required. Though Hay made a further concession, going beyond what was outlined in the June discussion, offering to let Burr’s lawyers see the letter, Burr stuck to his point, and Hay would concede no further. Marshall said he would have to continue the case unless the President would give an affidavit (the “certificate” later delivered) that both the requisite criteria were satisfied on each of the deletions suggested.

Here is the last point at which any pretense can be made for a concession to the presidential office—he is allowed to give this assurance, but not the local prosecutor. But when is the giving of evidence a privilege instead of a duty? And it was granted—indeed argued—by the defense, back in June, that a plea of public good must come from the officer whose area is touched on by the nature of the material. John Wickham, speaking for Burr, made this point at the outset of the debate: “If it is alleged to be a state paper, it must not be refused on the allegations of counsel, but on the oath of the officer” (R i 131). Here the defense is not talking of a privilege, but of a duty that would go to establish the nature of the evidence as affecting the public good. (Remember, all along, that the prior qualification of immateriality is granted by all sides before this question can even arise.)

Wickham is obviously not thinking of a privilege peculiar to the President, but of a requirement on any officer who can swear that the material affects his knowledge of the public business. What is being called for is the testimony of an expert witness. Wickham returned to his point when the debate had reached a further stage, in a passage I have already quoted: “the writ of subpoena duces tecum ought to be issued, and if there be any state secrets to prevent the production of the letter, the president should allege it in his return; for at present we cannot know that any such secrets exist. And the court, when his return is before them, can judge of the cause assigned” (R i 146).

So far from granting a concession to the prosecution, the Chief Justice was later following a procedure first recommended by the defense. The Justice is asking for direct assurance that the deleted portions are privileged because of (a) immateriality, and (b) public good. The latter is not sufficient without the former—which shows that the decision is not in the first place political. And the same passages would be privileged, by these considerations, no matter who possessed them or what officer was competent to assert their “delicacy.” Hay was not allowed to vouch for the sensitivity of the deleted sections, because he was not competent to judge the national implications of things outside his district. Furthermore, let us assume that the procedure agreed to by the prosecution (but not by Burr) had in fact been followed—i.e., that Marshall had been shown the whole letter and asked to delete parts that were both immaterial and might affect the public good. Though he could judge on his own authority the first point (immateriality), that would not end the matter—since no one ever proposed to delete everything that was immaterial; just those things that were both immaterial and sensitive. How was Marshall to decide the second point? By hunch? It was not, any more, a point of law alone, but of governmental prudence. The natural way would have been for him to seek expert assurance from the competent witness—in this case the President. Jefferson, it will be noted, did not object to giving his witness on these points, as the current President has. But it seems stretched to say the performance of this testifying role was a privilege.

We come, then, to the new quotation Professor Malone introduces into the argument. This is taken from a further, third, part of the process against Burr. The issue of a subpoena first arose in the June Grand Jury proceedings that looked to the treason trial; the second subpoena, to Hay, was part of the preliminaries for the misdemeanor trial in early September. After Burr’s second victory, there was an attempt to justify a new treason trial, in hearings at which General Wilkinson testified in late September. Burr’s lawyers determined that Wilkinson had a copy of his own letter and tried to get him to surrender it. Professor Malone’s odd omission of three words from his brief quote (“from General Wilkinson”) obscures the fact that not even the defense was seeking, any longer, to get the letter from Jefferson, nor insisting (as they once had) on the original. They wanted Wilkinson’s copy. Admittedly, Marshall did not, for the moment, demand that Wilkinson produce the copy because of the certificate he had received from Jefferson: “The Chief Justice remarked, that after the President had been consulted, he could not think of requiring from General Wilkinson the exhibition of those parts of the letter which the president was unwilling to disclose” (C iii 254).

But the refusal to press Wilkinson, at this point, for all of the letter was not nearly so absolute as the isolated quote makes it sound. Further in the same discussion, Hay was still offering the whole letter to Marshall, and even Martin inclined to this solution of the matter, but Burr remained uncompromising (C iii 278). The prosecution was not relying, despite Marshall’s concession that the certificate disposed him to grant the suppression of parts, on any argument other than the inability of the defense to prove materiality. Only under this provision were other considerations advanced, even now. William Wirt put it this way: “We hope, that unless the Court be satisfied of the relevancy of this paper, they will not, unnecessarily, violate the sanctity of private correspondence” (C iii 279, italics added). Marshall noted that Jefferson had certified the deletions were immaterial, but he was ready to hear opposing arguments if the defense could produce them:

Chief Justice. The president has certified his reasons for communicating only certain parts of that letter, and he believes that the other parts have no application to the present prosecution…. After such a certificate from the president of the United States as has been received, I cannot direct the production of those parts of the letter, without sufficient evidence of their being relevant to the present prosecution. I should suppose, however, that the same source, which informed you of the existence of this paper [he was speaking to Luther Martin, who alleged to know from a Grand Jury leak what was in the letter], might inform you of the particular way in which it was relevant. [C iii 280-281, italics added]

In other words, Marshall was open to argument still, after receiving the President’s testimony—not argument on the public good, since Jefferson was presumed to be competent on that point; but on the issue of materiality, which must first be satisfied before the other criterion can come into play.

Now what kind of “privilege” is granted to the President, when the whole ground for withholding parts of the letter is just what it was from the onset of the debate—i.e., no indication of the letter’s contents that would prove it material to the defense? So little has the Jefferson certificate settled matters, that Marshall goes on to say that he would probably grant the defense plea to continue the case if this were not a preliminary hearing. Since the rules of strict evidence do not apply, he will let Luther Martin allege what he heard of the letter, and instruct the Grand Jurors that they can consider this in their duty of deciding whether to return a true bill.

Chief Justice determined that the correct course was, to leave the accused all the advantages which he might derive from the parts actually produced; and to allow him all the advantages of supposing that the omitted parts related to any particular point.

That is: Martin could allege what was in the deleted parts of the letter, and the Grand Jury was free to believe him. “The accused may avail himself as much of them, as if they were actually produced” (C iii 281-282). Furthermore, Marshall signaled a willingness to grant a continuance if the case should come to trial, despite the certificate of the President: “If this were a trial in chief, I should perhaps think myself bound to continue the cause, on account of the withholding the parts of this paper; and I certainly cannot exclude the inferences which gentlemen may draw from the omissions” (C iii 284).3

The situation had changed since the beginning of the misdemeanor trial. It was now established that the Grand Jury had seen the whole of the letter, in Wilkinson’s copy; and the defense had some information that might have allowed them to establish relevancy in the trial itself. If so, Marshall indicates he would have considered Jefferson’s certificate an inadequate assurance of immateriality, and it would lose its effect (which was to prevent continuance in the misdemeanor trial), bringing on a continuance in any further treason trial. This is a far cry from the impression Malone’s isolated quote would give us, that Marshall no longer considered enforcing production of the deleted parts after he received the certificate. He did, and he would clearly entertain any argument for production of documents not privileged on the first ground of immateriality.

In summary, then, I think these points emerge clearly from the record of the Burr proceedings:

(1) Any prosecution claims to privilege inhering in the office of the President (rather than in the nature of the documents called for) were only weakly advanced at the outset, and quickly withdrawn, even before being overruled.

(2) The real arguments against issuance of the subpoena were procedural, and these—though not abandoned voluntarily—proved weak and were overruled.

(3) The defense tried to fix the stigma of privilege on the President, while the prosecution heatedly denied he was exempt from rendering material witness.

(4) Marshall ruled that privilege could attach only to the nature of the evidence sought, not to the person possessing it.

(5) There was never any demand for total public disclosure of subpoenaed material, regardless of materiality or political sensitivity.

(6) The dispute in September was over the means for establishing materiality and political sensitivity—on Hay’s word alone (unacceptable to the court), on the court’s inspection of the entire document (accepted by Hay, but not by Burr), on Burr’s and the court’s inspection of the whole letter (unacceptable to Hay), or on the affidavit of the President that both criteria were met in the case of each deletion (the compromise suggested in Marshall’s September ruling).

(7) The Marshall compromise had first been advanced, as a demand not a privilege, by the defense in the June debates.

(8) This was seen on all sides as a matter of procedure, establishing the nature of the suppressed parts as they qualified for privilege, not as an exercise of privilege on the part of the person testifying to their nature. (The court had denied that such privilege could exist; the prosecution had ceased claiming it; the defense had always denied it.)

(9) The President’s certificate was therefore an act of expert witness, not the exercise of an exemption or prerogative.

(10) The Chief Justice did not consider the matter settled even by that certificate, so long as there was any room for legitimate doubt about the immateriality of the deleted portions; and he signaled his intent to force the surrendering of the deleted sections if the case had come to further trial (which did not occur).

I see in all this no serious claim being made to presidential privilege, and certainly none being upheld. So obviously obnoxious would such a claim be to people living that close to the constitutional debates that the prosecution considered it prejudicial for the defense to keep dwelling on the subject. MacRae said:

Elevated as our illustrious president is, yet our principles are, that when life is in jeopardy, he may be summonable like any individual, where he is able to disclose important facts [materiality], and when the national interests will admit of his attendance. As, then, we admit that a subpoena may issue against him as well as against any other man, where was the necessity of expatiating so widely upon his elevated station? [R i 131; cf. C i 75]

Although even the defense admitted that certain “secrets,” on a proper showing, could be suppressed if they were also immaterial, the principle of a secrecy inherent in the government or its offices was raised solely as an accusation, and felt as such by the prosecution. So we get outbursts like Edmund Randolph’s “State Secrets! The very name strikes me with horror!” (R i 157). Answered by an indignant George Hay: “We had always denied the principle of secrecy” (C i 91).

It is interesting, finally, to ask what guidelines the prosecution of the Burr case might suggest in the current legal struggles. As I said earlier, the issue of presidential refusal of material to Congress exercising its impeachment rights is nowhere even raised in the Burr trial. Neither is the rebuff of a special prosecutor whose very existence is predicated on joint White House and congressional assurances of independent power to investigate the executive (cf. Sirica opinion of May 20, 1974). The only close parallel is in the trials of John Ehrlichman and others before Judges Sirica and Gesell. A casual first comparison of the Burr trial with the proceedings would suggest that where Hay denied full disclosure to Burr but offered it to his lawyers, Mr. Ehrlichman has been allowed to look over some of his notes, but his lawyers were excluded from this scrutiny.

But this is a very superficial kind of symmetry. In the first place, not even Ehrlichman was offered full consultation (as Burr’s lawyers were); then, the court has never been offered all the material (as Marshall was, at every step of the proceedings, from June through September); finally, the material being sought is mainly Ehrlichman’s own notes and papers (destroying any claim on the basis of “confidentiality”—Ehrlichman was himself the confider, and responding to his legal request is not a breach in confidentiality). In order for Mr. Nixon to claim the Jefferson precedent, he would have to: (a) first turn over all the subpoenaed material to the court, with a request that certain deletions be made from the public production of the material on grounds both of immateriality and important considerations of the public good, and then (b) discover that, for some reason, the defense would not accept this procedure, and, (c) respond to the judge’s suggestion that he testify in some way on both the immateriality and the public interest stake in each proposed deletion, and (d) abide by the judge’s determination to leave open the possibility that proof of materiality might still lead to a ruling for disclosure.

It is unlikely that Mr. Nixon will adopt Jefferson’s conduct as a “privileged” precedent, for the very good reason that this conduct was not an example of presidential privilege but of presidential responsibility and accountability—something Mr. Nixon seems unable to afford, since the real grounds for privilege (in the nature of the documents requested) cannot be vindicated in his case. That is why it is unlikely that Judges Sirica or Gesell could ever reach some equivalent to steps (b) or (c) or (d) above, because Mr. Nixon refuses to begin with stage (a), a step the Burr prosecutors took immediately and with no misgivings (even offering all relevant material before a subpoena could be issued). They were confident that the deleted sections could establish their own privilege in the court’s eyes, from the nature of the words themselves.

That was the only privilege finally sought or allowed in the Burr trial, and it is best to conclude by repeating the Chief Justice’s own rule on privilege: “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).

  1. 1

    Again I use C and R for the Carpenter and Robertson transcripts of the Burr trial.

  2. 2

    There is, of course, a legal privilege that inheres in persons—not because of their status (political, social, or whatever) outside the particular legal proceedings, but precisely because of their relation to such a proceeding (e.g., fifth-amendment rights). The whole point of equality before the law is that any citizen put in the described relationship to a legal proceeding can claim the privilege. The Burr prosecutors expressly denied that they were trying to make the President an exception to this equality before the law.

  3. 3

    This ruling is applicable to a dispute between President Nixon and the House Judiciary Committee. That committee has formally warned the President that an adverse inference will be drawn from his refusal to surrender evidence called for by subpoena. The President, in a letter to Chairman Rodino delivered June 20, 1974, cites proposed federal rules of evidence that forbid the drawing of such inferences from a valid claim of privilege. But (a) “executive privilege” is not a validly established claim in the law, and (b) the rules of evidence for a proceeding in chief before a petit jury do not apply to the preliminaries of a normal legal proceeding—and certainly not to the preliminaries of the extraordinary proceeding of impeachment. The rule in these circumstances should be that of the first Chief Justice, who would not “exclude the inferences which gentlemen may draw from the omissions.”

  • Email
  • Print