JEFFERSON, Thomas. Autograph letter signed ("Th:Jefferson") as President, to George Hay, U.S. District Attorney in Richmond, in charge of the prosecution of Aaron Burr, Monticello, 7 September 1807. 1 page, 4to (9¾ x 7¼ in.), integral blank with recipient's docket, folds neatly strengthened from the back, clean repaired tear to blank portion of left-hand margin.
A HISTORIC CONFRONTATION OVER EQUAL RIGHTS UNDER LAW AND THE DOCTRINE OF EXECUTIVE PRIVILEGE: JEFFERSON RESPONDS TO A SUBPOENA AND FURNISHES AN EDITED TRANSCRIPT OF A KEY LETTER IN BURR'S DEFENSE
A highly important letter relating to the trial of former Vice-President Aaron Burr, documenting Jefferson's assertion of Presidential control over critical information subpoened by Chief Justice John Marshall in this highly visible Federal prosecution. The incident, which could have provoked a struggle between the two branches of government, may constitute ONE OF THE EARLIEST PRECEDENTS FOR THE SUBSQUENTLY DEVELOPED CONCEPT OF EXECUTIVE PRIVILEGE.
Writing to Hay, the Federal prosecutor in the Burr case, Jefferson responds to an unprecedented subpoena duces tecum issued to him at Monticello which called upon him to produce a letter sought as evidence by Burr's defense. While carefully avoiding acknowledging receipt of the controversial subpoena itself, Jefferson writes: "Understanding that it is thought important that a letter of Nov. 12. 1806. from General Wilkinson to myself, should be produced in evidence on the charges against Aaron Burr depending in the District court now sitting in Richmond, I send you a copy of it [not present], omitting only certain passages the nature of which is explained in the certificate subjoined to the letter [not present]. As the attorney for the United States be pleased to submit the copy and certificate to the uses of the court. I salute you with great esteem and respect."
After the nearly disastrous election crisis of 1800, Burr had served as Vice-President during Jefferson's first term. In 1805, under indictment for murder in the death of Alexander Hamilton as a result of their celebrated duel, Burr travelled into the western territories. There, in one of the most mysterious episodes of American history, he projected a scheme to instigate war with Spain and seize control of frontier lands to found an independent nation. His grandiose scheme unraveled in 1806 when a fellow conspirator, General John Wilkinson (1757-1825), Governor of Louisiana, revealed the plot. Burr was arrested in the Alabama backwoods in February and consigned for trial in Federal District Court in Richmond. The Federal prosecutor, George Hay (1765-1830), was a committed Republican whom Jefferson had appointed to his post. But the trial venue had one key drawback: as each of the Supreme Court's six judges also served in the nation's six circuit courts, presiding in the Virginia Circuit Court was Chief Justice John Marshall, an ardent Federalist, appointed by John Adams. Marshall's conduct of the trial, which opened on May 22, was perceived by Jefferson from the outset as partisan at best and perhaps part of a pervasive Federalist effort to seriously embarrass him and his administration.
The prosecution's chief witness was Burr's former co-conspirator, Wilkinson. In his special message to the Senate and House on 22 January 1807, detailing steps taken by his administration to suppress the Burr conspiracy, Jefferson had referred to letters from Wilkinson to himself communicating critical information about Burr's nefarious plans (see Messages and Papers of the President, 1:412-417). During testimony before the grand jury considering Burr's indictment on the charge of high treason (for "assembling an armed force, with design to seize the city of New Orleans") Burr's lawyers insisted that Wilkinson's letters to the President, and other documents, might be material to Burr's defense and requested that Judge Marshall issue a subpoena duces tecum to be served on President Jefferson, ordering him to appear as a witness with the documents or to show cause why he should not.
Marshall "was painfully aware of the difficulties...As the head of one coordinate branch of the government, he did not relish having to direct such an order to the head of another branch," and "recognized the right of the national executive to withold from public gaze documents, or portions of them, containing 'state secrets'" (M. Lomask, Aaron Burr: The Conspiracy and Years of Exile, p.246). Yet he affirmed that a President was legally bound to comply with a subpoena, since under the Constitution, a President remained a citizen even while serving as chief executive and was subject to the same provisions under the law. In addition, Marshall asserted, the Constitution stipulated that "any person, charged with a crime, in the courts of the United States, has a right...to the process of the court to compel the attendance of his witnesses." Marshall accordingly issued the subpoena duces tecum on 13 June.
On June 20, Jefferson ostensibly complied with Marshall's subpoena, by furnishing numerous government papers requested by Burr's lawyers. A copy of Wilkinson's letter was given to Hay, but Jefferson declined to appear in person, arguing that his "paramount duties to the nation at large" made compliance impossible. Burr was indicted on two charges, high treason and a misdemeanor (mounting a military expedition against the King of Spain). He was speedily acquitted of the first, more serious charge on 31 August, and Wilkinson's letters never became an issue during the proceedings. But on September 3, in his second trial, Burr specifically demanded that the letter be produced. Hay adamantly refused, citing instructions from the President that certain passages in the letter not bearing on the defense not be made public. Marshall then issued a second subpoena duces tecum without delivering an opinion on whether the President had a right to furnish only a part of the text. Hay accordingly sent the subpoena and the copy back to Jefferson, asking him to return a transcript of the parts of the letter he believed could safely be furnished to the court. Jefferson complied, and, under cover of the present letter, sent back an edited version of the Wilkinson letter. Both the edited text and Jefferson's certificate were read to the court, without eliciting comment. As Malone and others have observed, it appears likely that both the President and Marshall were seeking to avoid a direct confrontation over the issue, such as occurred in 1974 in the case of President Nixon (see lot 193), and modern legal authorities disagree whether Marshall's acceptance of a partial transcript in this instance constituted a recognition of some degree of executive privilege. Malone concludes that Jefferson, "without opposing the course of justice or directly confronting the judiciary," had "declined to recognize the rightfulness of a subpoena to himself" and had "upheld his own right to withhold what he believed the public interest did not permit him to disclose" (Dumas Malone, Jefferson the President: Second Term, pp.343-346). See also Raoul Berger, Executive Privilege: A Constitutional Myth, 1974, pp.358-360. In any case, the notorious correspondence had no real bearing on the outcome of the case and Burr was aquitted on September 15.
Provenance: Anonymous owner (sale, Sotheby's, 13 May 1987, lot 71, with a related letter).