• Email
  • Single Page
  • Print

The Strange Case of Jefferson’s Subpoena

Jefferson the President: Second Term, 1805-1809 (Volume Five of “Jefferson and His Time”)

by Dumas Malone
Little, Brown, 704 pp., $14.50

Last October 26, in a press conference, President Nixon treated us to a little history lesson:

You remember the famous case involving Thomas Jefferson where Chief Justice Marshall, then sitting as a trial judge, subpoenaed a letter which Jefferson had written which Marshall thought or felt was necessary evidence in the trial of Aaron Burr. Jefferson refused to do so, but it did not result in a suit. What happened was, of course, a compromise in which a summary of the contents of the letter which was relevant to the trial was produced by Jefferson and the Chief Justice of the United States, acting in his capacity as Chief Justice, accepted that. That is exactly, of course, what we tried to do in this instant case.

For accuracy, that statement conforms to the Nixon average: the letter mentioned was not written by Jefferson but to him by General James Wilkinson, who tried to implicate Burr in a conspiracy to dismember the union; it was Burr who argued this letter’s relevance; Marshall never sat on the case “in his capacity as Chief Justice”; and no “summary” of a letter was ever delivered. Most of these errors are probably inadvertent, though the words have all the marks of a Nixon lie: when he is trying to put something over on us, he none-too-subtly affects to be repeating what everybody knows (“you remember…famous case…of course…of course“).

But on one point Nixon seemed to have a case. Scholars as respected as Henry Adams and Edward Corwin have maintained that Jefferson disobeyed and defied Justice Marshall’s subpoena. By last October, President Nixon’s lawyers had used the Jefferson precedent in arguing against Judge Sirica’s subpoena of White House tapes before the Court of Appeals, where they convinced two judges (MacKinnon and Wilkey) that their version of the Jefferson incident was the correct one.

Although the other five judges on the panel disagreed with this reading, Nixon was growing fond of the episode he now elevated to the status of a “rule.” At Disney World on November 17, he expatiated:

I could just say in that respect, too, that I referred to what I call the Jefferson rule. It is the rule, I think, that we should generally follow, a President should follow, with the courts when they want information and a President should also follow with committees of Congress when they want information in his personal files. Jefferson, as you know, in that very, very famous case, had correspondence which, it was felt, might bear upon the guilt or innocence of Aaron Burr. Chief Justice Marshall, sitting as a trial judge, said that—held that Jefferson as President had to turn over the correspondence. Jefferson refused. What he did was to turn over a summary of the correspondence—all that he considered was proper to be turned over for the purposes of the trial—and then Marshall sitting as Chief Justice ruled for the President. Now why did Jefferson do that? Jefferson didn’t do that to protect Jefferson. He did it to protect the Presidency. And that’s exactly what I will do in these cases.

Apparently the President had done some homework since his last use of “the rule.” The letter is no longer by Jefferson in this version, and Marshall does not argue its relevance (though he still, for some reason, sits as Chief Justice). The most significant thing, however, is Nixon’s extension of the rule to cover relations with Congress (something never at issue in the Jefferson incident). God knows what that rule would be covering by now if the greatest living authority on Jefferson’s life had not intervened. Dumas Malone, in a letter to The New York Times—it appeared nine days after the Orlando press conference—took the President to task. Jefferson, he explained, “cannot rightly be said to have rejected it [the subpoena].” This letter seems to have had its effect—Mr. Nixon no longer confidently cites what we all know and remember about “the rule.”

The Malone letter had an interest that ran beyond its immediate purpose. The Burr episode fell within the announced scope of the next volume in his monumental life of Jefferson. Malone gave us a preview of the contribution he meant to make to this incident’s historiography:

The fact does not seem to be generally known that two subpoenas duces tecum were issued to Jefferson on Burr’s motion…. The second subpoena called for the delivery of another letter from Wilkinson. This contained certain passages which, in the opinion of the prosecution, should not be made public. After a good deal of argument, Marshall ruled that the prosecution might not do the deleting but implied that the President himself might. Jefferson struck out passages that reflected on other persons and attested their immateriality. The document was accepted without comment. Thus there was an assertion and recognition of a degree of executive privilege….

So, even though Malone would not let President Nixon get away with a statement that Jefferson rejected the subpoena, he did side with the third President against John Marshall, treating this incident as an early assertion of “executive privilege.” His account of the second subpoena is fresh, concise, and relevant to several controversies. The only thing wrong with it is that it is wrong. The “second subpoena” referred to was not issued to Jefferson, did not concern “another” (a different) letter, and was not the direct subject of Marshall’s ruling.

How could a man of Malone’s stature be wrong on such a point? Was he saying something other than what a first reading might indicate? The next glimpse we had of his treatment just reinforced the first version. Writing to The New York Review of Books (October 4, 1973) to explain this affair, again on the basis of Malone’s research, Steven H. Hochman, Malone’s assistant, told the same story: “In September the defense again requested papers and moved that a second subpoena duces tecum be sent to Jefferson…. Jefferson again complied with the court’s request, but he did not officially acknowledge the subpoena.”

Now we have Malone’s book itself, which singles out for “detailed consideration” the whole subpoenaing of a President. Two chapters are devoted substantially to this one point, and again we are given the Malone version: “the issuance of another subpoena duces tecum to the President…[who] returned the subpoena” without responding to it. And I repeat: that version is wrong.

The proceedings in court were not as confused or confusing as Malone makes them appear. But we have to remember that there were two 1806 letters from James Wilkinson in dispute (that of October 21 and of November 12), two subpoenas issued in 1807 (on June 13 and September 4), and two relevant opinions delivered (on June 13 and September 4). Since the subpoenas and the opinions were delivered on the same dates, and the first letter was primarily at issue on that first date, while the second was being discussed on the second date, it is easy to be tempted toward a reductive symmetry, to say that the first letter was demanded in the first subpoena, the second in the second.

But it is not as simple as that. Burr argued that the first subpoena covered both letters (R ii 502);1 George Hay, the government prosecutor, never contested this particular point, and Marshall referred to it as established in his second opinion (C iii 35, R ii 534). So a question naturally suggests itself—if the letter at stake had already been subpoenaed, why duplicate that earlier subpoena? Now we see why, for reasons other than symmetry, Malone must save the second letter for a separate subpoena: his two subpoenas, which are directed to a single person, are differentiated only by reason of the documents they demand. He ignores the fact that Marshall’s second ruling made a further subpoena superfluous.

The Chief Justice described the situation the court faced on a Friday, September 4, that was to be a very busy one: “Upon an affidavit made by the accused, a subpoena duces tecum has been awarded to the president of the United States, requiring the production of this [i.e., the November 12] letter” (R ii 534). Marshall is not talking of a new subpoena just issuing, but of the first one, as his next sentence indicates: “In consequence of this process the letter was transmitted to the attorney for the United States, accompanied with a communication from the president, authorizing the attorney to exercise his discretion in the case” (ibid.). Hay admitted to possession of the November 12 letter as a consequence of the first subpoena (which called for all the documents relied on by Jefferson when writing his message to Congress about the Burr conspiracy), and he offered to show the complete letter to Burr’s counsel and the court, but insisted on deletions before it could be shown to Burr or read in public.

At this point Benjamin Botts, on Burr’s team of lawyers, moved that a subpoena be issued to Hay, forcing him to surrender the letter (C iii 23-24, R ii 507). This is the action that is debated in the next few pages, until the subpoena is actually served (C iii 27, R ii 513). Hay responded, on the spot, by turning over a copy of the letter with deletions. Burr called this inadequate compliance (C iii 28, R ii 514). Botts argued that the normal course would be to move for the “attachment” (arrest) of Hay, but that he did not want to take such an extreme course—instead he moved that the “cause stand continued” until the letter could be produced in its entirety (C iii 28, R ii 514-519).

This motion led to considerable argument (cf. Wickham for continuance, R ii 525-528, Wirt against continuance, R 528-530)—and it was on this subject that Marshall delivered his opinion, as the opening words of his ruling indicate: “It is not without regret that I find myself constrained to deliver an opinion on the present application. To overrule the motion may, at least, have the appearance of imposing a hardship on the prisoner, and to grant it may occasion delay in a case which all must desire to terminate (R iii 538). The “present application” is for “continuance,” for suspension of the trial until the next court term. At C iii 35 Marshall says, “It is necessary, before the Court could order a continuance of the case, that it should be well satisfied of the materiality of the evidence asked for and refused….”

Malone seems to be confused by Marshall’s ruling because he reads it as an opinion on the issuing of another subpoena, instead of on a request for continuance. But there was no task a subpoena could perform here—the one to Hay had been delivered and responded to, and the defense had dropped the further pursuit of Hay for contempt; and the letter was already covered, so far as the President was concerned, by the first subpoena. What Marshall decided was that there was not sufficient evidence of materiality to grant the motion of continuance, but that the defense was blocked from proving materiality by the prosecution’s refusal to show the letter to the defendant. “It is a very serious thing to proceed to trial [the result of denying continuance] under such circumstances” (R ii 536). “The Court would be very glad to hear farther testimony on the subject, in order to determine properly upon the materiality of the paper called; but that is not offered” (C iii 37). After discussing the various justifying grounds that the President might have for withholding immaterial sections of the letter, he said that these must be presented by the President himself:

  1. 1

    There are two stenographic reports of the trial, one by Thomas Carpenter, and one by David Robertson. I shall refer to them as C and R, respectively.

  • Email
  • Single Page
  • Print