In response to:

A Special Supplement: Impeachment from the June 28, 1973 issue

To the Editors:

Before considering the main subject in his review essay on “Impeachment” [NYR, June 28], I. F. Stone investigated whether less drastic means were available to obtain evidence in a court of law from a president of the United States. He found a precedent in the trials of Aaron Burr in 1807 for treason and misdemeanor, during which Chief Justice John Marshall issued two subpoenas to President Thomas Jefferson requiring the submission of documents in executive hands. Unfortunately Stone lacked vital information on the trials and therefore mistakenly concluded that “Marshall laid down the law, but was unable to enforce it against a recalcitrant President.”

Although it may well be true that “even on impeachment a President cannot be compelled to testify,” the subpoena episodes in the Burr trials do not provide examples of presidential defiance of the judiciary, but rather of co-operation with it. Jefferson complied with the requests of the court, which were actually less than Stone indicated. This conclusion is based on a fresh account of the Burr conspiracy and trial presented in the fifth volume of Dumas Malone’s biography of Thomas Jefferson—Jefferson the President: Second Term—which will be released by Little, Brown and Company early in 1974.1

On June 9, 1807, Burr, guiding his own defense, requested that a subpoena duces tecum be issued for certain excutive papers, and that it be directed to Thomas Jefferson as chief executive. George Hay, the district attorney in Richmond, the site of the trial, immediately wrote to Jefferson in Washington informing him of the motion. Jefferson replied to Hay, before learning of Marshall’s ruling on the motion, that he reserved the “necessary right” as president to decide what papers the “public interests permit to be communicated, & to whom,” but was otherwise ready “voluntarily to furnish on all occasions, whatever the purposes of justice may require.” He indicated that he would comply with Burr’s request.2

Jefferson did have reservations concerning the propriety of a subpoena directed to the chief executive, which he discussed in a letter to Hay written on June 17. Although he offered to give testimony by deposition, he did not believe he would be obligated to appear in person at the trial, since he had “paramount duties to the nation at large.” However, Jefferson did not have to face this problem. The defense clearly stated in court that only documents were desired. It was even written on the subpoena duces tecum, that neither the personal attendance of Jefferson nor of his subordinates was required. Therefore, in this episode it is difficult to discover any overt defiance or recalcitrance on his part.3

While Jefferson was not disturbed by the request for papers he was disturbed on June 19, after he read in a newspaper Marshall’s opinion granting the subpoena duces tecum. In the opinion, Marshall went far beyond the limited issue raised by Burr of the right in this case to subpoena documents from the president. Marshall declared that under the American Constitution a president had no rights superior to those of any other citizen and therefore could be compelled by subpoena to appear in court.4 As in the case of Marbury vs. Madison (1803), Marshall was availing himself of an opportunity to set forth a doctrine of judicial superiority over the executive and legislative branches of government. Yet he was shrewdly avoiding any confrontation by presenting his doctrine as obiter dicta—statements not bearing directly on the issues and therefore not tested, and not actually acquiring the force of law.5

Jefferson informed Hay in a private letter how he viewed Marshall’s opinion. Two basic issues seemed involved. First, “if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these?” And second, “would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience…?” Jefferson did not believe a president could be subject to a subpoena.6

However, Hay did not discuss these issues when in September the defense again requested papers and moved that a second subpoena duces tecum be sent to Jefferson. Hay did maintain the right of the executive to withhold irrelevant parts of correspondence which if released might be damaging to the public welfare or to private individuals. He actually offered to allow the counsel for the defense to view the complete letters if they would agree to keep them confidential, but since they were unwilling, Justice Marshall was forced to rule on the issue. Marshall’s opinion proved to be ambiguous. He agreed with the government’s position that the president “may have sufficient motives for declining to produce a particular paper,” and also said that “in no case of this kind would a court be required to proceed against the president as against an ordinary individual.” But he still maintained that the president was “subject to the general rules which apply to others.” Marshall gave Jefferson the authority to select what should be released of the requested letters.7

Jefferson again complied with the court’s request, but he did not officially acknowledge the subpoena. His basic position was that among the branches of government, trust rather than force had to be exercised.8 A president could not be compelled to present papers, but he was obligated to present them upon request of the legislature or the court. While Jefferson denied that executive officials in that era of slow transportation could be called upon to testify anywhere or any time that a defendant might ask for them, he was not denying an obligation to serve as witnesses when they could “without interruption to their executive duties.”9

How all this should be applied to the Watergate investigation is difficult to determine. The parallels are not particularly close. While the Burr trials provide an example more of executive co-operation than of executive privilege, they do not provide a precedent for compelling a president to present evidence. As Jefferson said, we must depend on his “candor & integrity,” when it comes to that.10

Steven H. Hochman

Assistant to Dumas Malone

University of Virginia

Charlottesville, Virginia

I.F Stone replies:

Mr. Hochman has just fought his way, inch by inch, through a wide-open door. If he had stopped to read my article carefully before rushing into battle, he would have seen that the whole point of my discussion of the Burr case was to show that it wasn’t much of a precedent either for the judicial power to subpoena a president or for the executive privilege to resist one. Marshall asserted the power but did not press his luck by trying to serve his subpoena on the president; Jefferson asserted executive privilege (at least sotto voce in a private letter to the prosecutor) but actually supplied the document the defense wanted. Far from claiming (in Mr. Hochman’s words) that I had “found a precedent” for subjecting a president to subpoena, my discussion deflated the expectations aroused by a footnote to Mr. Justice White’s decision last year in the Caldwell case. This cited Marshall’s ruling in the Burr trial for the proposition that even the president, much less a lowly newspaperman, was subject to subpoena.

Part of the reason for the stand-off in the Burr trial is that Marshall and Jefferson had worked themselves into politically embarrassing situations. Marshall, in his dislike for Jefferson, found himself propounding the Jeffersonian doctrine that, unlike kings, presidents are not immune to judicial process. Jefferson, in his hatred of Burr and his dislike for Marshall, had adopted federalist doctrine in claiming a presidential right to resist subpoena. The mutual inconsistency did not escape ironic notice at the time.

Mr. Hochman says that I, “following Leonard Levy,” have been “overly willing” to accept the argument of Burr and his counsel that he was being persecuted by the Jefferson Administration. Mr. Hochman’s reference is to Mr. Levy’s iconoclastic Jefferson and Civil Liberties: The Darker Side which infuriated many present-day Jeffersonians but demonstrated the heady effect of the presidency even on so justly revered a civil libertarian as Jefferson. Jefferson’s own special message to Congress just before Burr’s trial is the best evidence for Burr’s contention. When the president, on the eve of a man’s prosecution for treason, sends Congress a message declaring his guilt “placed beyond question,” that hardly helps to set the stage for fair trial. Mr. Hochman’s letter seems to reflect what Macaulay so often diagnosed with derision as the occupational disease of biographers—their tendency to fall in love with their subjects.

This Issue

October 4, 1973