The issues raised by Trump’s retention of presidential documents (“It’s not theirs, it’s mine”) – state secrets, executive privilege, and national security – are not new but few people know that some of these very same issues were raised by Aaron Burr during his trial for treason in 1807. The context was different: Jefferson was the sitting President and was not being investigated. The incident nonetheless reveals the fundamental flaws in Trump’s logic.
Jefferson was in power and was managing the trial through the prosecutor. During the trial, Jefferson refused to produce documents requested by Burr for his defense. The prosecution argued that the materials requested were “confidential,” they contained “state secrets,” and the president was privileged to withhold them.
In his response to the subpoena, Jefferson argued that as the president of the United States, he alone had the right “to decide independently of all other authority, what papers coming to him as president the public interest permits to be communicated and to whom.”
Burr pointed out that “the president is not the keeper of any public papers,” that “He has no public office and can keep no public papers. There are certain departments established by law to keep all public papers and documents over which certain officers preside, but it would be censurable, it would be criminal [for the president] to retain any public papers. They should all be distributed in the offices of those departments.”
Jefferson assured the court of his “readiness,” under the aforementioned restrictions, “voluntarily to furnish on all occasions whatever the purposes of justice may require.”
Jefferson believed he alone, not John Marshall who was presiding, had the absolute right to determine what justice or the public interest required. Trump appears to believe the same thing. But this question was already settled in 1803 in “Marbury v. Madison,” wherein the Chief Justice famously declared that it was “emphatically the duty of the Judicial Department to say what the law is,” establishing the doctrine of judicial supremacy.
Jefferson disagreed with Marshall. The President wrote to the prosecutor that “the gratuitous opinion in Marbury v. Madison” should be “brought before the public & denounced as not law.” Jefferson explained that, in his opinion, the powers of the president existed “against any control which may be attempted by the judges in subversion of the independence of the Executive & Senate within their peculiar department[s].” “On this construction,” Jefferson wrote, “I have hitherto acted, on this I shall ever act.”
Jefferson felt so strongly about this that only a few months before he proposed to a Senator from Virginia to “amend the error in our constitution which makes any branch independent of the nation,” since he believed that “one of the great coordinate branches of the government” (the judiciary) had set itself “in opposition to the other two” by “protecting” Burr.
Astoundingly, Jefferson added that if Justice Marshall’s alleged “protection of Burr produces this amendment it will do more good than his condemnation could have done . . . [and] if [Burr’s] punishment can be commuted now for a useful amendment of the constitution, I shall rejoice in it.”
The author of the Declaration of Independence wanted complete independence and absolute power to decide for himself what was in the public interest, he thought that the system of checks and balances was an error in the Constitution, and he was willing to “commute” Burr’s prosecution if that error could be corrected by constitutional amendment.
Clearly we cannot follow the lead of our beloved Founding Father here. Our system of checks and balances does not permit a president to prosecute or not based on whether he has or does not have absolute power, or to amend the Constitution to prevent courts from doing their duty – or to alone decide what documents to keep on the basis of privilege, state secrecy.
When Burr’s prosecutor stated that President Jefferson “had reserved to himself the province of deciding what parts of the letters ought to be published and what parts required to be kept secret,” Burr’s counsel declared: “In a government of laws, where majesty and prerogative are proscribed and where the authorities of all the public functionaries are to be exercised for the benefit of the people, there are but few instances in which the policy of state secrecy can prevail.”
And indeed in such a system – “where majesty and prerogative are proscribed and where the authorities of all the public functionaries are to be exercised for the benefit of the people” – there are no instances where a former president may decide that state secrecy or executive privilege can be transformed into “It's not theirs, it's mine.”