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 …

This article is available to subscribers only.
Please choose from one of the options below to access this article:

Print Premium Subscription — $94.95

Purchase a print premium subscription (20 issues per year) and also receive online access to all all content on nybooks.com.

Online Subscription — $69.00

Purchase an Online Edition subscription and receive full access to all articles published by the Review since 1963.

Letters

Executive Privilege: Jefferson & Burr & Nixon & Ehrlichman July 18, 1974