After losing the 1796 presidential electoral vote to John Adams 71-68, with Adams winning the northern states and Jefferson winning the southern states, Jefferson recognized that the key to victory over Adams in 1800 would be to win the swing state of New York. This he accomplished brilliantly by choosing Aaron Burr as his running mate, Burr being the most influential New York politician. With Burr delivering all 12 of NY's electoral votes, Jefferson prevailed 73-65.
But this set up an electoral college tie between Jefferson and Burr, since the Constitution at that time provided tht electors vote for two candidates, without distinguishing between president and vice-president. This threw the election into the House, with each state casting one vote. The Federalists voted for Burr, feeling that he was less of a rabid anti-Federalist compared to Jefferson. After 35 rounds of balloting over five days, the vote remained unchanged: eight states for Jefferson, six for Burr, and two deadlocked. Burr steadfastly refused to bargain for votes, while Jefferson gave the following assurances, according to Wheelan: "To maintain the federal financial system, to preserve the Navy, and not to conduct a wholesale housecleaning of Federalist appointees, other than Cabinet members". After receiving these assurances, a number of Federalist Congressmen abstained, resuting in a vote of ten states for Jefferson, four for Burr, and two deadlocked. Wheelan is quite clear that he believes that Burr handled this whole mess with more integrity than did Jefferson.
Jefferson did not trust Burr with any significant duties during his first term. Burr presided over the Senate with a high degree of professionalism, making procedural improvements which survive to this day.
Near the end of his VP term Burr was tasked with presiding over the impeachment trial of Supreme Court Justice Samuel Chase, a significant proceeding which remains to this day the only impeachment of a Supreme Court justice. Chase was impeached for actions undertaken while serving as a trial judge in lower cuircuit courts. After a year-long inquiry, eight Articles of Impeachment were voted out by the House on December 4, 1804. The political nature of this impeachment is obvious from the voting; all 33 of the Federalist House members voted against impeachment on every article, while the votes against impeachment by the 85 anti-Federalists (or Democratic-Republicans, as they were now called) ranged from only one to a high of thirteen.
The trial took place in the Senate in early 1805, expertly and even-handedly presided over by VP Burr. The Democratic-Republicans in the Senate outnumbered the Federalists 25-9. so the former could lose two votes and still reach the required 2/3 needed for conviction. However, at least six Democratic-Republicans voted with all of the Federalists for acquittal, and Chase was acquitted on all eight counts.
It is impossible to overstate the importance of the Chase acquittal. This case esablished the principle that a successful impeachment must involve serious wrongdoing, and not just mere political differences of opinion. Also, the case went a long way, in conjunction with the 1803 Marbury v. Madison opinion, to establish the independence of the federal judiciary.
This impeachment principle was applied in the 1868 impeachment of Andrew Johnson, which also involved mere political differences. As in the Chase case, the Johnson case involved a Congress heaviy controlled by the impeaching party. With ten southern states still not represented, The Republicans had a lopsided 45-9 majority in the Senate, meaning that the Republicans could tolerate nine defections and still achieve the 36 votes needed for conviction. Leading up to the final vote, nine Republicans were known to be opposed to conviction, leading to Kansas Senator Edmund Ross tipping the scales to acquittal with a last-minute decision to acquit. This courageous decision was one of the "Profiles in Courage" which John F. Kennedy wrote about in his Pulitzer Prize-winning book in the 1950s. The title of the Ross chapter was "I looked down into my open grave", which was how Ross described his decision to vote for acquittal.
The 1999 impeachment of Bill Clinton was another misguided poitical vendetta by the Republicans. With the GOP holding only a 55-45 majority in the Senate, there was no chance for conviction. In the end, five Republicans joined all 45 Democrats to acquit on one of the counts, and ten Republicans defected on the other count.
What these three impeachments all have in common is that in each case some members of the majority party were willing to buck the party line in order to do the right thing and oppose conviction. And how do we know what is the "right thing"? The answer lies in an exchange which occurred during the 1787 Constitutional Convention. When a delegate proposed "maladministration" as a basis for impeachment, James Madison replied that that would be equivalent to a president serving "at the pleasure of the Senate". This ended the discussion, and the higher standard of "high crimes and misdemeanors" was adopted.
The two impeachments of Donald Trump differed from the cases just discussed, in that the Trump impeachments were legitimate impeachments which did involve serious wrongdoing. Consequently, the defections here went the other way; one Republican (Romney) voted for conviction in the first impeachment, and seven Republicans (Burr, Cassidy, Collins, Murkowski, Romney, Sasse and Toomey) voted for conviction on the second impeachment, which was based on the January 6th insurrection.
Returning to our main narrative, Jefferson never did like or respect Aaron Burr, and Burr's patronage suggestions fell on deaf ears. By January of 1804, it had become obvious that Jefferson was not going to choose Burr as his running mate for a second term. Consequently, Burr decided to run for Governor of New York. This race was doomed from the start, as Burr was opposed by Jefferson and the Virginians on one side, and Akexander Hamilton and the radical Federalists on the other side, and Burr lost badly in the April election.
A few weeks before the election, Hamilton made some derogatory comments about Burr at a dinner party, and word of this leaked back to Burr. Wheelan says that "Burr's cordial requests to Hamilton for an explanaton of his remarks indicated that he was willing to resolve the matter peacefully; he gave Hamilton ample latitude to either retract his words, disavow them, or apologize". Hamilton refused these overtures and adopted a defiant tone, resulting in the infamous duel on July 11th, in which he was killed.
Burr stayed in Washington to serve out his VP term, but then he had to figure out what to do next. He couldn't go to New Jersey, where he faced murder charges for the duel, and he couldn't resume his New York law practice, for fear of extradition to New Jersey.
Seeing no future for himself in the East, Burr decided to head West, "where Hamilton had never been popular and where dueling bore no stigma". He bought a 60-foot-long houseboat in Pittsburgh and headed down the Ohio River.
At Marietta, Ohio, Burr learned of a wealthy Irish immigrant and his family who lived on a lush island in the middle of the Ohio River. He was given a microscope to deliver to the man, Harman Blennerhassett. Burr reached the island on May 6, 1805, and was warmly welcomed by Harman and his wife Margaret. They spent a pleasant evening together and Burr continued on his journey downstream the next morning.
In late June Burr reached New Orleans, finding a fascinating mixtue of French, Spanish, Creoles, and Americans. The city was simmering with discontent. From New Orleans Burr headed east through Mississippi and Alabama and then north into Tennessee.
By September Burr was back in St. Louis meeting with General James Wilkinson, who Jefferson had appointed to be governor of the newly-acquired Louisiana Territory. They pored over maps, planning for a joint venture of making war on Mexico. Burr returnd to Washington in November, finding a city buzzing with rumors about his strange journey. The stories were that Burr planned not only the war against Mexico, but also a scheme whereby the western states would secede from the United States.
By March of 1807 Burr had been arrested and was charged with treason in Richmond, Virginia, with Chief Justice John Marshall presiding (in those days the Supreme Court justices "rode circuit"). Interest in the case was so intense that Justice Marshall moved the proceedings from the courtroom to the Virginia House of Delegates, the largest venue available.
Right at the start Justice Marshall was presented with a monumental issue, when Burr and his legal team moved to subpoena documents from President Jefferson. Two days of bitter argument ensued. On the third day the U.S. Attorney prosecuting the case announced that he had heard from Jefferson, and that the president was willing to turn over the documents, after deleting portions that he (Jefferson) felt were not relevant or that contained state secrets. Marshall ruled that the documents must be turned over intact, and the court would decide what could be releaed to the public. Marshall made clear that the president was not above the law, that he could be subpoenaed like any other citizen. However, the president would not have to appear in person, provided he turned over the requested documents. This was the first time that the issue of Executive Privilege came up in the U.S. court system, although that particular term was not used in this instance.
On June 13th General Wilkinson appeared to testify before the grand jury, which was the body considering the case at this point. Wilkinson was universally disliked for the brutal way he had been administering the city of New Orleans, imprisonng his enemies and denying basic human rights at every turn. Wilinson provded a letter from Burr which supposedly supprted the claim of treason. The letter was written in code, but Wilkinson had mistranslated the code to omit evidence of his own involvement in the plot. Unfortunately for Wilkinson, the grand jury broke the code and discovered the translation errors.
On June 24th the grand jury announced indictments of Burr and Harman Blennerhassett for treason, punishable by death. Wilkinson was not indicted, to the consternation of the grand jury foreman, John Randolph, who wrote to a friend that "Wilkinson is the only man that I ever saw who was from the bark to the very core a villain". Randolph was able to get only seven of the sixteen jurors to vote to indict Wilkinson.
The grand jury indictment of Burr and Blennerhassett was for a December 10th gathering on Blennerhassett Island, in which thirty armed men allegedly made plans to capture New Orkleans and then invade Mexico. This took place months after Burr's visit to the island.
Between the indictment and the start of the trial on August 17th, Marshall wrestled with the issue of what evidence would be needed to prove Burr guilty of treason, which the constitution defines as "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." The issue was whether planning for a treasonous act is sufficient to constitute treason; or, to put it another way, is there such a thing as "constructive treason". In Britain there was, which is to say that merely wishing the King dead was enough to be guilty of treason. As Marshall pondered this, it became obvious to him that our Founders deliberately adopted a stricter standard by requiring an overt act, testified to by two witnesses.
After two weeks of testimony, Marshall spent the weekend crafting a long opinion on how the treason law applied to the facts of the case. His 44-page opinion was delivered on Monday, August 31st. His opinion stated that the required overt act "is not proved by a single witness". The mere assembly of a group did not qualify as "levying war" against the United States, no matter what the motivations of the group were for assembling. The jury was sent out to deliberate with this guidance, and within minutes returned a not guilty verdict.
My main takeaway fronm this whole sorry episode is that my opinion of Jefferson has taken quite a tumble. I used to think he was one of our two or three best presidents, but his vendetta againt Burr shows him to be of much lower character than I had previously thought. For the Burr treason trial the government brought in 140 witnesses, at great expense as most came from great distances. Jefferson monitored the trial daily, showing an inordinate interest in the case. Burr and Blennerhassett were left impoverished by the whole ordeal.
General Wilkinson was long thought to be a Spanish spy, and was paid vast sums by Spain for his information. His spying activity was verified beyond a doubt by documents discovered ninety years later in Cuba after the Spanish-American War. And this is the nefarious character whose information Jefferson relied on to pursue charges against Burr. Jefferson never did have Wilkinson charged, although in 1807 he did remove him as governor of the Louisiana Territory and replaced him with Meriwether Lewis.
Jefferson spent the remainder of his time in office unsuccessfully seeking ways to limit the power of the federal judiciary. Wheelan's summary says that "By any measure, Jefferson's crusade againt Aaron Burr, John Marshall, and the Judiciary was a debacle...Jefferson's actions during 1807 marred an otherwise superlative presidential record.
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