Today we're opening our new series on famous trials in the Federal Courts. In this case, United States v Burr, the judge and jury had to decide whether to convict former VP Aaron Burr for the crime of treason.
Taking us on the journey are Christine Lamberson, Director of History at the Federal Judicial Center, and Nancy Isenberg, professor at LSU and author of Fallen Founder: The Life of Aaron Burr.
This trial has everything: Washington Irving, epaulets, a subpoenaed president, and a letter hidden in a shoe.
Education Resources:
The Federal Judicial Center has numerous resources to teach this case, to students or to judges! Click here for their archive of activities and handouts.
Transcript
Archival: Whenever you're ready, Mr. Chief Justice. And may it please the Court and please the Court. Mr. Chief Justice. At least the facts of this case appeared in 1777 in Philadelphia...This case concerns the federal drug conspiracy statute...This case presents to this court the questions of whether Miranda versus Arizona and Westover versus.
Nick Capodice: Hannah. It's no secret. You know, I'm a little bit obsessed with Supreme [00:00:30] Court history.
Hannah McCarthy: Just a little. Yeah, yeah, I know.
Nick Capodice: The robes, the oyez chant,
Archival: Oyez, oyez!
Nick Capodice: Two advocates in a room debating cases with nine justices. It's almost a philosophical exercise.
Hannah McCarthy: It makes you very emotional.
Nick Capodice: But it's not the entire picture of our judicial system. Now, you've pored over dozens of landmark Supreme Court cases, and don't you dare deny it. [00:01:00] You're a big fan of courtroom dramas.
Hannah McCarthy: Yep.
Nick Capodice: So tell me what is missing from the hallowed sessions in the highest court of the land that you get in those courtroom dramas?
Hannah McCarthy: I mean, everything everything is missing, right? It's it's the laws that are on trial, not the human beings. There's no jury. There's no cross examination, no gavels, which, like, they could at least throw in some gavels. No one's like shouting. I object. Although apparently that doesn't actually happen very often in court. No surprise witnesses. [00:01:30] There's no presentation of evidence. There's no ruling by the judge right then and there. Come to think of it, the people involved in the cases usually aren't even in the.
Christine Lamberson: Every once in a while, like Plessy versus Ferguson. I used to teach U.S. history. So you actually talk about who Homer Plessy was, but you hardly ever talk about the students in Brown versus Board.
Nick Capodice: This is Christine Lamberson. She works at the Federal Judicial Center, which is the Research and Education [00:02:00] Agency of the federal courts. And earlier this year, I spoke to her and some folks from the American Bar Association who asked, hey, why haven't you done any episodes on federal court cases? This is where the action happens. This is where people and the courts meet. And this is Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And this is the first in a series about historic federal court cases. Today, we're going to talk about the trial of [00:02:30] the century, one of the first cases ever related to something very serious. Article three, Section three in the Constitution, treason.
Hannah McCarthy: Okay, before we get into treason, why are federal courts the place to examine it?
Nick Capodice: Right. Here's Christine again.
Christine Lamberson: First of all, the vast majority of cases that go through the federal courts are not going to make it to the Supreme Court. The Supreme Court; certainly currently this is especially true. The Supreme Court currently hears 100 [00:03:00] to 150 cases per year, whereas thousands, tens of thousands of court cases are heard by courts of appeals, hundreds of thousands by district courts.
Hannah McCarthy: This is a good point. I mean, much like the executive branch is not just the president, but also 4 million other Americans. The vast majority of the judiciary is in these lower courts.
Christine Lamberson: Historically, I think also we can get a sense of how [00:03:30] people interact with the courts. When you're looking at a trial, for example, as opposed to a Supreme Court case at the trial, you are going to have individual Americans who are not lawyers arguing about the law, coming and telling their stories and talking about their experiences and interacting with the federal legal system. So if you're looking at a trial, we're going to be able to get a sense of how individual [00:04:00] Americans throughout history were interacting with the legal system that we don't tend to get when we look at the Supreme Court level decisions.
Nick Capodice: And to remind you, the Supreme Court was not always the body who made these decisions on what was and was not constitutional. Yes, they do that now. But initially they had another job and it was in our circuit courts of appeals. You lose a case, you can appeal it up to your circuit court.
Christine Lamberson: So if you're looking at a federal trial [00:04:30] from 1830 or something, it was probably heard in the circuit courts. So they were the main trial courts. They also heard some appeals from the district courts and then the Supreme Court heard appeals from both of those. So it's a little bit of a different system. At that point. The Supreme Court was required to hear a lot of appeals, which is no longer the case. The judges for the circuit courts were the Supreme Court justices writing circuit, and then the district court judges. They didn't have their own judges until late [00:05:00] in the 19th century.
Nick Capodice: And today's case, U.S. v Burr is going to go back to that earlier time when Supreme Court judges rode circuit.
Hannah McCarthy: Right. This is when justices traveled the country in carriages and got stuck in swamps and got sick and basically put their life on the line for the job, right?
Nick Capodice: Yeah. That's the time period. One judge was robbed by highway bandits, broke his leg and died from circuit exhaustion before he was 48 years old.
Hannah McCarthy: Circuit exhaustion. Did you make that up?
Nick Capodice: No. It's a real thing. [00:05:30] It's what it said. I read it on a website.
Hannah McCarthy: Okay. And you said Burr v us. Are we talking about the Burr?
Nick Capodice: The Burr. Indeed we sure are.
Archival: Pardon me. Are you Aaron Burr, sir? That depends. Who's asking. Oh, well, sure, sir.
Nick Capodice: That is the depiction of Aaron Burr in the wonderful, enormously popular musical Hamilton. Come on the show anytime to set us straight if we mess this up, Mr. Miranda. But this treason trial is not due to the famed duel where he killed Alexander Hamilton.
Hannah McCarthy: All right, [00:06:00] let's do a quick crib notes on Aaron Burr. What did he do, Nick?
Nancy Isenberg: Yeah, Aaron Burr was an extremely important politician in the early republic, particularly in New York. And what we have to understand about politics in the early republic is that your connection to your state was essential to be a player in federal politics.
Nick Capodice: That's Nancy Isenberg. She's a professor at Louisiana State University and author of Fallen founder The Life of Aaron Burr. Burr was a lawyer [00:06:30] in New York and he lived with his wife, Theodosia. Theodosia dies in 1794 after a long illness and in seven. In 1797 Burr is elected to the U.S. Senate. And as Nancy pointed out, your position as a player in your state was far more important than it is today.
Hannah McCarthy: Why was your state connection so powerful back then?
Nick Capodice: Well, for one thing, there were fewer states. Burr was one of 32 U.S. senators, not 100. And when it came to the House. [00:07:00] New York had ten seats out of 104 in the House of Representatives. So your state wielded a lot more political power. And Aaron Burr, backed by that power, ran for president in 1800.
Hannah McCarthy: Oh, that election.
Nick Capodice: That was such a bonkers election.
Nancy Isenberg: During the election of 1800. As you know, there's a tie. And that means the decision has to be made in the House of Representatives and there's negotiations.
Hannah McCarthy: Is this the only tie so far in U.S.. history
Nick Capodice: So far it is. What [00:07:30] happens is written out in the Constitution, Article two, Section one,"If there be more than one who have such majority and have an equal number of votes, then the House of Representatives shall immediately choose by ballot, one of them for president," and that choosing by a ballot was contentious. They voted 36 times in the House without picking a winner.
Nancy Isenberg: And at that moment, people start accusing Burr of trying to steal the election, which he did not do, and all the evidence that exists, one of the key players who was [00:08:00] a federalist and had thrown their support to Burr thinking they could work with him better than Jefferson admits that Burr would never work with them. But what that does is it creates a climate of distrust. And Burr and Jefferson were never really that close. They they respected each other. But Jefferson is really Virginian, you know. He trusts people who are like him, people from Virginia. So what happens is that starts rumors.
Hannah McCarthy: What kind of rumors are we talking about?
Nick Capodice: Rumors that Burr was [00:08:30] trying to steal the presidency from Jefferson. But in the end, Jefferson won. And because Burr did not win, he served as VP for four years. Burr then ran for governor of New York in April 1804. He lost. And here's where the trouble really starts for him. It came out that his political rival, Alexander Hamilton, apparently said some bad stuff about Burr at a dinner party.
Hannah McCarthy: What did Hamilton say?
Nick Capodice: According to someone who attended the dinner? Hamilton referred [00:09:00] to Burr as a,"dangerous man."
Hannah McCarthy: Whoa.
Nick Capodice: And a feud, a feud of letters between Byrne Hamilton escalated to a duel in Weehawken, New Jersey, where Burr fired a bullet that lodged in Hamilton's spine, killing him, which I first learned about, interestingly, from a got milk commercial in the nineties.
Archival: (commercial)
Nick Capodice: Anyways. [00:09:30]
Nancy Isenberg: But essentially that led to the duel. And then the duel. What happens is that Hamilton's reputation before the duel had really dropped because of the Reynolds scandal, the adultery scandal. He was no longer influential in the Adams administration. And suddenly, after the duel, he's turned into a martyr. And then New York and New Jersey decide that they're going to [00:10:00] try to prosecute Burr for murder for the duel. New Yorkers eventually drop it. New Jersey pushes it, and it's all because it's Hamilton's friends who push for that. So Burr has to leave New York, and this is when he begins to think about the filibuster.
Hannah McCarthy: The filibuster?
Nick Capodice: Yeah.
Hannah McCarthy: Aaron Burr is thinking about reading Green Eggs and Ham to block a bill from being passed.
Nick Capodice: No, no, no. Not that filibuster.
Nancy Isenberg: Filibuster does not mean an effort [00:10:30] to stop the passage of legislation in Congress. This was the older it comes from the Dutch and the Spanish, and it refers to organizing a private army as a way to essentially trigger some kind of rebellion and then have the regular army move in or as a way to appropriate more land.
Hannah McCarthy: Okay. So people would raise a private army to incite political turmoil [00:11:00] in other countries lands. Take that land and sell it to the US government.
Nancy Isenberg: Yeah. And you may think, well that's outrageous, but in fact it wasn't illegal. Which tells us something about how different the early republic was and that Americans acquired so much land trying to provoke conflicts. This is actually how the Mexican war was started. This is remember what the Texas independence [00:11:30] was, not Texas independence. It was a group of Americans who invaded and then created rebellion. So this unfortunate pattern was quite common, and Jefferson and Madison were not opposed.
Nick Capodice: Burr starts filibustering out West in 1805, but the trouble for him starts when the district attorney in Kentucky, Hamilton Davies, tries to arrest him.
Hannah McCarthy: So there's another Hamilton in this story.
Nick Capodice: Yeah, there is Joseph Hamilton Davies, who was very upset about the duel with the other Hamilton. [00:12:00]
Nancy Isenberg: So he goes after Burr and tries to prosecute him because he's angry. And I have this seen this in his letter. He's angry because Burr killed Hamilton. But Burr's defended by Henry Clay and himself, of course. So he escapes Kentucky. He's also arrested in Mississippi territory. The jury also finds him not guilty. But the the real danger that I highlight is that the reason that there [00:12:30] was so much of a response to what Burr was doing and people were following his actions, and then it gets exaggerated. In the newspapers, like in Kentucky, they were they began to claim he has an army of 2000 and it's in the newspapers. Unfortunately, Jefferson believes the newspapers. He believes it probable that this news of an army being led by Burr is real.
Hannah McCarthy: Okay. While on principle, I'm not sure how I feel about filibustering, I'm not entirely sure why it's a problem for [00:13:00] Burr to be filibustering and leading an army if a bunch of other people were doing the exact same thing.
Nick Capodice: Yeah. The trouble is, rumors of Burr's army are that it is very large. And Hamilton Davies writes Jefferson to say that Burr intends to form a new independent nation. Now, Thomas Jefferson dismisses these accusations at first, but then he gets a letter from a guy who had been working with Burr: General James Wilkinson.
Nancy Isenberg: General James... He was he was a real [00:13:30] wheeler and dealer. He actually sent a messenger to Jefferson with the secret note hidden in his shoe, supposedly giving him this this very important intelligence.
Hannah McCarthy: A secret note hidden in a shoe? What is this, Nancy Drew?
Nancy Isenberg: I mean, talk about spycraft. This is essentially who Wilkinson was. And unfortunately, he ensnared Jefferson. And then Jefferson goes too far.
Nick Capodice: Jefferson issues a proclamation that various and sundry people [00:14:00] are, quote, conspiring and confederating. And when Congress pressures him to be a little more specific who he's talking about, he finally names Aaron Burr as the prime mover of it all. Burr is eventually brought to Virginia under escort, where he is to be put on trial in the Fifth Circuit Court for treason.
Hannah McCarthy: Why Virginia?
Nick Capodice: Well, the supposed crime of Burr raising an army happened in a place called Blennerhassett Island, which was part of Virginia. Now it's in West Virginia. [00:14:30]
Hannah McCarthy: Blennerhassett.
Nick Capodice: Blennerhassett. I could go on at length here about a speech given at the trial called Who Is Blennerhassett, which was recited in public schools for a century later, oddly enough. But I'm going to just skip it all and say that's where the supposed treason took place.
Hannah McCarthy: All right. Real quick, can we define treason?
Nick Capodice: Yes. Article three, Section three, in the US Constitution says treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid [00:15:00] and comfort. Now, there's also a second part, Hannah, which turns up in this case that, quote, No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or a confession in open court. So we get to the trial. But first, quick break.
Hannah McCarthy: And before that break, just a reminder that we make something called extra credit. It's a newsletter. It is delivered every other week into your inbox, and it's where we put all of the good stuff. That we want to put in the episodes, but our editor makes us cut. You can subscribe [00:15:30] at our website, civics101podcast.org.
Hannah McCarthy: Okay. We're back, Nick. Let's get to the trial.
Nick Capodice: The trial, United States versus Aaron Burr. 1807. Here we go. The charge, one count of treason, one count of high misdemeanor for, "unlawfully, falsely, maliciously and traitorous Lee intending to raise and levy war on the US." The [00:16:00] prosecution team, which was led by sitting President Thomas Jefferson, included William Wirt and George Hay.
Hannah McCarthy: I just want to make sure I understand. Jefferson paused his presidential duties to run a trial.
Nick Capodice: Well, he wasn't there exactly, but he directed the moves of the prosecutorial team from the White House.
Hannah McCarthy: Okay, so that's the prosecution side. Who was on the defense?
Nick Capodice: Here's Nancy Isenberg again.
Nancy Isenberg: Burr's defense team is what we can call a dream team. First of all, he played a role in his own defense, acting [00:16:30] as his own counsel. And Burr was an extremely talented lawyer. Secondly, he had the Virginian, Edmund Randolph, who had been Washington's attorney general and the secretary of state, part of the Randolph dynasty. He, the person who was the real brains on the dream team was a man by the name of John Wickham, who you've probably never heard of. He was the most important and influential lawyer in Virginia at the time.
Nick Capodice: There was a jury, a grand jury, and the judge who ran the show, [00:17:00] none other than chief justice of the Supreme Court, John Marshall. Riding that circuit.
Hannah McCarthy: That Marshall is everywhere. And by the way, if anyone wants to know more about Justice John Marshall, listen to our episode on the judicial branch. He was chief justice in Marbury v Madison. Or we've got a whole episode on just Marshall.
Nick Capodice: Remember, Marshall needs two people to testify that Burr planned to levy war on the U.S. and here is where things start to fall apart for the prosecution.
Nancy Isenberg: What happens is the [00:17:30] trial begins and several things happen. First of all, Burr admits at the very beginning, he says, Yes, I was basically engaging in a filibuster. And then what ends up being proven is one of the star witnesses, a guy named William Eaton.
Nick Capodice: Eaton was also engaged in filibustering and he testified that Burr was going to lead an army to create a new government. But then Burr's defense is like, Hey, Eaton, isn't it true that the federal government gave you $10,000 after [00:18:00] your deposition for this case? And Eaton was like, Yeah, but that was for something else. And his testimony loses a lot of credibility.
Nancy Isenberg: And then they move on to another witness who ends up being a witness for Burr, saying, I never heard Burr ever say anything about trying to topple the West. And then Eaton's charges were that Burr was going to come east and conquer the whole United States and even cut Jefferson's thought. So you can understand why Eaton ended up being a very unreliable witness. [00:18:30]
Nick Capodice: The Keystone witness for the prosecution was that shoe secret smuggler General James Wilkinson, who had evidence a letter in cipher in code from Burr to him that laid out the whole plan.
Nancy Isenberg: So Wilkinson, the star witness, ends up being a complete failure. Well, first of all, as the editor of the Burr Papers discovered, the letter wasn't even written by Burr. It was written by Jonathan Dayton, who is a friend of Burr, [00:19:00] who was involved in the filibuster, senator from New Jersey. And then on top of it, it's quite clear when Wilkinson hands over the letter that he's doctored it. That's because he tried to remove the part where he's implicated.
Hannah McCarthy: This is not going well for the Jefferson team.
Nick Capodice: It's not. There's even a funny moment when Wilkinson comes in the courtroom. It was written about by a man reporting on the trial. Washington Irving.
Hannah McCarthy: Like the author of The Legend of Sleepy Hollow.
Nick Capodice: Yeah!
Hannah McCarthy: This trial has everything. So what happens when Wilkinson [00:19:30] shows up?
Nick Capodice: Irving said General Wilkinson moved into the courtroom, quote, swelling like a turkey cock.
Nancy Isenberg: And he gives this incredible description and he wore this elaborate uniform that his wife had made for him with epaulets and make him look like he's really important when he walks into the court. Washington Irving describes how there's kind of a pause, and then suddenly someone says something to Burr. He looks [00:20:00] at Wilkinson, and this is what Irving says he gets. He gives gives one of his classic stares, you know, his his he basically looks at Wilkinson and dismisses him and then turns around and continues conversing with his defense. So Wilkinson's grand entrance is deflated.
Nick Capodice: Wilkinson, even though he had that nice uniform his wife's sewed, never got to testify because he had doctored the deciphered letter. So [00:20:30] it is a shambles. But before I tell you the verdict, there is one civics feature in this case I want to bring up. Something that's been in the news in the last few years, the notion of executive privilege. Aaron Burr said that for this trial to be fair, President Jefferson had to provide documents and evidence. This is the shoe letter, among other things. And Justice Marshall had to decide, can a president be subpoenaed?
Hannah McCarthy: What did he decide?
Nick Capodice: He says they can. [00:21:00] And you can see Burr's subpoena to President Jefferson in the Library of Congress. But Marshall also said that a president can withhold certain information based on their privilege. So what Jefferson did is he gave some evidence, but not all of what Burr asked for. And this question of can a president withhold specific evidence was brought up again in the wake of Watergate and U.S. v Nixon in 1974.
Archival: In fact, we go back to Chief Justice Marshall's [00:21:30] opinion in the Burr case, where exactly the same suggestion was made by the United States attorney in opposing the subpoena that Burr hadn't specified which portions of General Wilkinson's letter. We're really going to be material...
Hannah McCarthy: All right. I have a pretty good idea of the outcome of the trial, but give it to me.
Nick Capodice: The jury came back pretty quickly with the following verdict. We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty. [00:22:00] What's interesting is they don't say he's not guilty. They say based on the evidence provided to us, we can't say he's guilty.
Hannah McCarthy: Well, that's technically how it should always go.
Nick Capodice: Yeah, that's like...
Hannah McCarthy: It's based on the evidence.
Nancy Isenberg: And this is what's interesting. I think Marshall realized he realizes that all of this, the hubbub around Burr had been created by gossip and rumor that what the newspapers printed and [00:22:30] then it circulates. And he basically said he was unwilling to allow rumor to convict a man of what he called the most atrocious crime of treason. So he did this was this was a very important thing separating the difference, fact versus fantasy, something Americans need to learn today. This is what John Marshall was saying. It has to be based on evidence. You have to have real witnesses. It has to be compelling evidence, particularly if you're going to make the incredible charge that he has committed treason. Because [00:23:00] what is the punishment for treason? Death.
Hannah McCarthy: All right. So Burr's found not guilty. What happens next?
Nick Capodice: Aaron Burr realizes he's not going to have much success. He's not going to have a big comeback politically. He goes to Europe for four years. He becomes best friends with the philosopher Jeremy Bentham.
Hannah McCarthy: You're kidding me. The philosopher Bentham?
Nick Capodice: Yeah, the very same. And Burr has dreams about filibustering again in Mexico or Florida, but that never comes to [00:23:30] fruition.
Nancy Isenberg: The weird thing about Burr is, given everything that's happened to him, he doesn't kind of go into a depression. He maintains connections. He has a disastrous second marriage, which was a major mistake for him, where he thought he was going to be able to recoup some of his clients. He's always struggling with finances, as they all were. Like Hamilton, Jefferson, struggling with debt. He's but he's never a player again. He's never going to [00:24:00] wield political power, run for office. That whole part of his life is over. If we think about this trial, it's a perfect example of how a president abuses their power. Jefferson and most scholars agree with this. Jefferson stepped over a line. As I said, even John Adams was shocked by Jefferson's declaration that Burr was guilty.
Nick Capodice: Jefferson, [00:24:30] who was not a fan of Chief Justice Marshall and decidedly not a fan of the decision to acquit Burr. After the trial, he proposed an amendment to the Constitution where a president could remove federal judges by order of Congress. The Constitution, as written, says that judges can only be impeached by a vote in the House and then removed by a trial in the Senate. Jefferson wanted to make it easier than that, and he claimed that these judges were acting, quote, independent of the nation. Now, this [00:25:00] didn't happen. Marshall was not impeached and removed, but Jefferson tried.
Hannah McCarthy: What's interesting to me about this case is that we have a contested election. Allegations of treason, overreach of executive power, and a president who feels the judicial branch has too much power. 220 years have passed and all of this is still going on.
Nick Capodice: Yeah. And Nancy said to me that if there's one thing we should focus on, it's Jefferson's involvement in the case. You [00:25:30] got a president targeting a political enemy and telling the American people that that person is guilty.
Nancy Isenberg: So when the president makes that kind of public declaration, they can provoke violence or in this case, bias the entire proceeding, which is what it ended up working against Jefferson because of Burr's legal team that they were so effective in just shooting down the really weak case that the prosecution had. But [00:26:00] it could have gone if it had been someone else. And it's one of those rare moments on the courtroom proceedings really work the way they should, as opposed to just people following their confirmed biases or their distorted way or just following Jefferson's lead.
Nick Capodice: That’s it for this episode on our first federal treason trial, special thanks to the American Bar Association for suggesting this series, visit the page for this episode on our website civics101podcast.org (also a link in the show notes) to see some wonderful teaching resources for this trial courtesy of the Federal Judicial Center. This episode was written and produced by me Nick Capodice with Hannah McCarthy, our staff includes Jacqui Fulton, Christina Phillips is our Senior Producer and Rebecca Lavoie our executive producer. Music in this episode by Chris Zabriskie, Bonnie Grace, Margarita, Peter Sandberg, Strom, Nylonia, Christian Anderson, Stationary Sign, Jahzaar, Needledrop Records, Blue Dot Sessions, Dyalla, Scott Holmes, and Kevin McCloud. Civics 101 is a production of NHPR New Hampshire Public Radio [00:27:00]
Nick Capodice: BLENNERHASSETT
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