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 What Really Happened to the Jefferson Subpoenas
by Irwin S. Rhodes

While counsel and courts in the Watergate Tapes
Case relied for their opposing positions on the
rulings of Chief Justice Marshall in the Burr case,
they didn't go beyond the reports of that case in
Federal Cases. By failing to do adequate research,
they missed the contemporaneous shorthand
reporting of the case. This account demonstrates
that Marshall ruled that the courts may not review a
president's assertion of executive privilege.

A

N OUTSTANDING feature of the Watergate Tapes
Case, 360 F.Supp. 1 and
F. 2d
. has been
the reliance of both sides and the courts that decided
the case-the United States District Court for the
District of Columbia and the United States Court of
Appeals for the District of Columbia Circuit-on opposing views of the historically famous case of United
States v. Burr. This diversity of views may be attributable to the failure of counsel on either side to present
the true and complete record of that case and to, the
temerity of the courts in claiming adherence to that
ease while relying on the same incomplete record.
Counsel and courts apparently confined their study
to the limited recording of the Burr case found in Federal Cases (25 Fed.Cas. 2-209 (Cases Nos. 14,692d14,694)). At least, those who may have gone beyond
that point failed to uncover the complete contemporaneous reporting of the case taken in shorthand by
Thomas Carpenter, probably under orders of President
Jefferson, and published in three volumes under the
title The Trial of Aaron Burr, etc., in the year of the

trial, 1807.
They also failed to find the recorded copies of the
original documents of the case that have been preserved in the record books of the old United States
Circuit Court of Ohio, now at the Chicago Center of the
National Archives and Record Service. The court
records of the original trial in Richmond were destroyed
during the Civil War, but copies of much of the documentation fortunately survived in the Ohio court where
they were sent for the further prosecution of Burr. Included in these records are true copies of the controversial letter of General Wilkinson to President Jefferson,
parts of which Jefferson refused to disclose, together
52

American Bar Association Journal

with a copy of Jefferson's reply to the subpoena, in
which he states his adamant position on presidential
privilege.
The records of Congress also contain considerable
documentation, including a limited account of the trial
submitted by President Jefferson on November 23,
1807.
In the Watergate Tapes Case the briefs for President
Nixon in opposition to the order to produce the tapes,
while contending for the actual conclusion of the Burr
case, failed to reach its authoritative rulings and asserted that historical records of them are nonexistent
and covered by "a veil of 166 years." Those in favor
of the order asserted and reasserted with great assurance
that the Burr case is "but a specific application of two
historic constitutional principles," the subjection of the
executive to the so-called rule of law as announced and
enforced by the judiciary, a proposition for which
the Burr case most assuredly does not stand, either alone
or in combination with Marbury v. Madison.

Judge Sirica Does Little to Honor Marshall
Chief Judge John J. Sirica in the district court accepted the interpretation of those in favor of the order
and supplemented it by asserting the right of the court
to order presidential submission and to review and revise the president's judgment in the exercise of executive
privilege, a power that Chief Justice Marshall disavowed
in the Burr case. Judge Sirica does little honor to Marshall by concluding the opinion with a paraphrase of the
latter's words to establish a diverse conclusion.
The members of the court of appeals, majority and
dissenting, followed essentially the same reasoning.
Counsel and judiciary who limited nr opposed the
absolute character of presidential privilege departed from
the rulings of Chief Justice Marshall in the Burr case,
and those who argued for the privilege were unable to
support their position except by conjecture.
The proceedings against Aaron Burr for alleged
treason in conducting acts of war against the United
States and for misdemeanor in waging war against a
power at peace with the United States (Spain) were
conducted at Richmond in 1807 before the United
States Circuit Court presided over by Chief Justice
John Marshall. The proceedings were in four stages:
commitment during grand jury inquiry, trial and acquittal on a charge of treason, trial and acquittal on

 Jefferson Subpoenas

a charge of misdemeanor, commitment to the United
States Circuit Court of Ohio on a misdemeanor charge.
Jefferson Agreed to Issuance of Subpoena
The first of these extended from May 22, 1807, until
June 24, when the grand jury returned indictments. On
June 11 Burr made application to the court for issuance of a subpoena duces tecum on President Jefferson to produce the military orders of the War and Navy
Departments for the seizure of Burr and his men, and
also to produce a letter dated October 21, 1806, from
General Wilkinson, the commander of the western
forces of the United States, to the president concerning
his information on Burr's intentions, which letter the
president allegedly had mentioned in his report to
Congress calling for prosecution of Burr. The only
objection presented by William Hay, the United States
district attorney, and other counsel was to the personal
appearance of the president, the alleged prematurity
of the subpoena, the inadequancy of the affidavit as to
relevancy, and the like. To the issuance of a subpoena,
the president, in keeping with his previous stand on that
question, readily agreed, as also to the submission of
the letter and documents.
Despite the lack of substantial contest on the subject,
Chief Justice Marshall saw fit on June 13 to issue a
lengthy opinion on the power of the court to subpoena
the president, at the same time overruling the objections
to the subpoena. He mentioned the necessity of the
president's making a return to, the subpoena in which
he would assert his desire to refuse to comply on
grounds of executive privilege. He also somewhat ambiguously adverted to what action the court would take
on the return, any uncertainty as to which he clarified
by subsequent word and action.

President Asserted His "Executive Privilege"
On June 17 the president wrote to Hay acceding to
the request, at the same time asserting his exclusive
privilege, as executive to submit or withhold documents
other than those of a formal or official nature and
denying the right to demand his personal attendance.
The orders and later a copy of the letter of Ocober 21,
which had been lost, were submitted.
The treason trial itself extended from August 3 to
September 1 and resulted in a verdict of not guilty
based on Chief Justice Marshall's famous ruling that
to constitute treason by acts of war the principal must
be physically present at the place of committing the
acts, in this case at Blannerhasset Island, a requirement
the testimony could not meet.
The trial for misdemeanor followed immediately, and
on September 3 Burr for the first time denmanded a
second letter from Wilkinson to the president dated
November 12. 1806, concerning the alleged Burr conspiracy, his fears of an attack on New Orleans, and th6
complicity of Governor Claiborne of Louisiana and his

A Cincinnati lawyer, Irwin S
Rhodes is the author of "Legal

Records as a Source of History,"
which appeared in our June,
1973, issue (page 635). He has

filed an extensive brief in the
United States Court of Appeals
for the District of Columbia Circuit on the true rulings of Mar-

shall in the Burr case.

secretary, Cowles Meade, in the conspiracy. Claiborne
was a trusted appointee of Jefferson, who was adamant
that the charges against Claiborne and his aide not be
made public. A subpoena issued on the president for

the letter.
The November 12 letter being then in the hands of
Hay, a further subpoena duces tecu'n issued on him,
to which he answered with a copy of the letter with
the portions referring to Claiborne and Meade deleted
under the alleged discretion vested in him by President
Jefferson to exercise his constitutional power, together
with an assertion of the irrelevancy of the omitted
part. Burr's counsel moved for a continuance of the
case until the letter was produced.
Marshall: The President Himself Must Respond
Thereupon Chief Justice Marshall rendered an
opinion the main thrust of which was that the president
could not delegate to his attorney a discretion to exercise executive privilege in, withholding parts of the
letter, but if he desired to rely on the privilege he
must respond himself. This Jefferson did on September
9 by submitting through Hay a deleted copy of the
letter and a certificate asserting under his executive
power the right to withhold the omitted parts, which he
claimed the national interest forbade being made public. In addition, he stated that the omitted parts were
not relevant to the conviction or acquittal.
In this condition the trial continued under serious
limitation of the government's evidence: by rulings
similar to those in the treason trial. A motion to suppress further evidence was filed by the defense, an
opinion rendered by the court, and on September 15
the jury was instructed to return a verdict of not guilty.
The misdemeanor trial thus concluded without a definitive ruling on the president's right to withhold the
letter.
The hearing then proceeded on a motion by the
government to commit Burr to the appropriate district

January, 1974 0 Volume 60

53

 Jefferson Subpoenas

for further trial on charges of treason and misdemeanor.
On that same day, September 1.6, Burr reasserted his
demand for the November 12 letter, saying that "the
court ought to make no question how to proceed on
it," undoubtedly referring to his prior motion to continue the case.
The hearing proceeded without event until September 29, when Wilkinson on the stand admitted that
a copy of the November 12 letter had been produced
by him to the grand jury. Burr's counsel then demanded that it be entered in evidence. Hay opposed
the demand on grounds, to quote Carpenter's report,

Details of I.B.A. Meeting Announced

T

HE FIFTEENTH Conference of the International
Bar Association will be held in Vancouver, British
Columbia, Canada, from July 28 to August 2, 1974.
Six plenary sessions are planned on these topics:
Topic I "The Right to Practice and of Establishment Abroad." This subject was discussed in 1972 in
Estoril at a meeting of the I.B.A. and the Union Internationale des Avocats, and the recommendations regarding practice in or the establishment of law offices
in other countries will be considered. (See the article
"Problems and Developments in Foreign Practice," by
Sir Thomas Lund, in the October, 1973, American Bar
Association Journal, page 1154.)
Topic f-"Delays in Trial Procedure," prepared and
presented by Robert H. Hall and Richard A. Green
of the United States.
Topic 3 "The Extraterritorial Application of the
Law," prepared and presented by the I.B.A. Section on
Business Law, with Dr. Arved Deringer as chairman.
Topic 4-"The Relative Merits of the Adversary and
Inquisitorial Systems of Trial," prepared and presented
under the chairmanship of George S. Cumming of
Canada.
Topic 5-"International Legal Problems in Connection with the Drafting and Proving of Wills," prepared
and presented by David Pyott and Barry Lock of the
United Kingdom.
Topic 6-"Freedom of the Mass Media versus the
Right to Privacy."
In addition, two seminars will be conducted. One
will consider aspects of legal education and is being
organized by Prof. James M. MaceIntyre of the University of British Columbia. The other will deal with
the rights of women under family law and will be presented by the National Association of Women Lawyers
of the United States. Several sections and committees
of the I.B.A., as well as the International Legal Aid
Association, also are planning open meetings.
For persons in the Americas and the Caribbean, registration forms and travel and accommodation details
may he obtained from Travel Consultants, 1025 Connecticut Avenue, Washington, D.C. 20036.

54

American Bar Association Journal

that "the president was consulted on the subject and
has excepted such parts as he thought it would be
improper to produce." Marshall thereupon ruled that
"he could not think of requiring from General Wilkin-

son the exhibition of those parts of the letter which
the president was unwilling to disclose."
Counsel for Burr asserted that submission of the
letter to the grand jury constituted a waiver of the
privilege, entitling Burr to the right to call for the
letter, but to no avail.
A few days later Burr repeated his contention of
waiver, to which the chief justice replied: "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 application."
Marshall Emphasized President's Characterization
The chief justice placed considerable emphasis on
the president's assertion of irrelevancy of the parts
withheld, stating that in order to make further demand
for the letter Burr must give "sufficient evidence" of
relevancy. He recognized that if Burr could prove the
relevancy of the material withheld and if the proceedings were a prosecution in chief, he might discontinue the case, but in the absence of that proof and
circumstances he refused further steps other than allowing Burr to make the most favorable inference of
the omitted part.
Rather than ruling, as alleged, that a court may
question the assertion of the president to executive
privilege by reviewing the withheld data in camera or
otherwise and weighing relevant interests, Chief Justice
Marshall's acts and rulings were the exact opposite.
He repeatedly sidestepped or ignored suggestions by
one or the other of the parties to examine the letter
and determine the validity of the president's assertion.
He stated at one point that the contents of the letter
"I never ought to have heard at all, and which I must
treat as though I have never heard. I cannot, therefor,
speak from any knowledge I have of the letter."

Is Watergate a Rerun of Burr?
The arguments and issues of the Waiergate Tapes
Case are so similar to those of the Burr trial as to be
a virtual replay with, however, the substitution of a
different ending.
It is eminently clear that President Jefferson never
submitted the contents of the withheld material to, the
court or Burr and that his, claim to an exclusive exercise
of executive privilege, unreviewed and unreviewable
by the courts, was upheld by Chief Justice Marshall.
The assertion of supervisory power by the courts in
the Watergate case is not following but denying the
rulings of Chief Justice Marshall in Burr.

Courts cannot be unduly criticized for departing
from precedent for stated reasons. Insofar, however, as
they depart from precedent under assertions of perpetuating it, the law as well as history is not well
served. A