Mr. President (39 page)

Jefferson believed one could. The Supreme Court justice Samuel Chase had evidenced clear bias when trying cases under the Sedition Act. He bullied defense attorneys and tried to stack juries; once, he allegedly asked the marshal to remove from the jury panel “any of those
creatures
or people called democrats.” Repeatedly, Chase preached his brand of Federalism from the bench, and his instructions to a grand jury in Baltimore in May 1803 caught Jefferson’s attention. “I can only lament that the main pillar of our State Constitution has already been thrown down by the establishment of universal suffrage,” Judge Chase told the jurors. “Our republican constitution will sink into a mobocracy, the worst of all possible governments…. The modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us.” When Jefferson read Chase’s words in a newspaper, he wrote immediately to Joseph Nicholson, who was then managing the impeachment trial of a Federalist judge who had literally become insane: “You must have heard of the extraordinary charge of Chase to
the Grand Jury at Baltimore. Ought this seditious and official attack on the principles of our Constitution, and on the proceedings of a State, to go unpunished? And to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration, for myself it is better that I should not interfere.” The president’s message to this Republican stalwart was clear: Chase should be impeached, but the president should not be implicated.
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Nicholson and John Randolph, the eccentric Republican “whip” who attended congressional sessions booted, spurred, and with riding whip in hand, drew up eight articles of impeachment, which the House of Representatives readily approved. Yet despite marshaling dozens of witnesses who attested to Chase’s political excesses while serving in an official capacity, Nicholson and Randolph were unable to maintain party-line discipline in the Senate. Had all Republican senators toed the party line, Chase would have been removed from office, but just enough moderates joined with the outnumbered Federalists to acquit Chase on all counts.

Chase’s impeachment trial was both a setback for Jefferson and a rare repudiation of partisanship. While the framers had established high standards for impeachment—“Treason, Bribery, or other high Crimes and Misdemeanors”—they also decriminalized the procedure by insisting that “Judgment in Cases of Impeachment shall not extend further than to removal from Office” and disqualification from holding future offices. While Chase had certainly broken no law, a good case could be made that he had violated his judicial charge of impartiality. Everybody knew, however, that had Chase been convicted, other impeachments would certainly follow. Not only would the judiciary be politicized even more than it was, but it would also become forever beholden to Congress, which could and likely would judge the judges habitually. That’s why several moderate Republicans, fearful of setting a dangerous precedent, balked. (The exact number varied with the eight articles of impeachment.) With Chase’s acquittal, the judiciary became
more
independent of Congress and, indirectly, the president. Jefferson had hoped impeachment would chasten the judiciary for its usurpations, but instead the judicial branch emerged stronger yet. No Supreme Court justice has been tried for impeachment since.

The borderlands between executive and judicial authority were explored yet one more time during Jefferson’s presidency. On January
22, 1807, the president sent a special message to Congress announcing that Aaron Burr, “whose guilt is placed beyond question,” had spearheaded a western conspiracy with “two distinct objects, which might be carried on either jointly or separately, and either the one or the other first, as circumstances should direct. One of these was the severance of the Union of these states by the Alleghany mountains; the other, an attack on Mexico.” The first constituted treason, and the second a violation of treaty and law, since Spain was nominally on friendly terms with the United States. Although two grand juries in the West had failed to return indictments, the president vowed to bring Burr to justice closer to the center of national authority.
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This he did, but the case wound up in the federal district court in Richmond, Virginia, where the presiding judge was none other than Chief Justice John Marshall (at that time, Supreme Court justices presided over lower courts as well), and Jefferson did not trust Marshall or any other Federalist judge to oversee a fair trial. “What loophole they will find,” he wrote to William Branch Giles, “we cannot foresee.” Old wounds had not healed. To Giles the president did not bother to conceal his disdain for Federalist opponents, who “give all their aid, making Burr’s cause their own, mortified only that he did not separate the Union and overturn the government.” If Burr had succeeded in his secessionist efforts, he continued, “they would have joined him to introduce his object, their favorite monarchy, as they would any other enemy, foreign or domestic, who could rid them of this hateful republic for any other government in exchange.” More than six years into his presidency Jefferson was still consumed with venom, but he did have a somewhat rational backup plan should Burr be acquitted. “The nation will judge both the offender & judges for themselves,” he predicted. “They will see that one of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution.” The folly of allowing judges to set traitors free would alert people to the need for reining in the judiciary, which could be done with a constitutional amendment. No longer would judges, with “impunity,” be allowed to “overturn the Constitution.”
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As the proceedings began, Jefferson tried to direct the prosecution by issuing frequent and specific instructions to George Hay, U.S.
attorney for the District of Virginia, who was charged with handling the case. Writing from Washington, he told Hay how to examine witnesses, administer their oaths, and pay them. “Go into any expense necessary for this purpose, & meet it from the funds provided by the Attorney general for other expenses,” the president wrote.
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On June 2, in his third letter within a week, Jefferson told Hay how he should respond to the defense’s citation of
Marbury v. Madison:
“I think it material to stop at the threshold the citing that case as authority, and to have it be denied to be law.” He pointed out the essential inconsistency of the ruling—the Court said how the case should be decided, even though it “disclaimed” authority to rule on it because it did not have original jurisdiction—and then proceeded to argue his side once again to Hay. Since Jefferson, not Marshall, had interpreted the case correctly, and since the Court had transcended its authority by interfering with the internal affairs of the executive branch, the president felt no obligation to follow any aspect of the Court’s ruling, particularly the assumption that it could declare an act unconstitutional. Jefferson’s defiance is worth noting at some length:

Four years after Marshall had asserted final authority in interpreting the Constitution, Jefferson was still claiming that authority as well, and
now the trial of Aaron Burr provided yet another occasion for the chief justice and the chief executive to assert the supremacy of their respective branches. When Burr requested that the court subpoena documents from the president, Marshall considered the matter carefully and then agreed to do so. Unlike the British king, who was said to be above the law and therefore could not be compelled to answer a subpoena for documents, the American president, in the eyes of the law, was still a citizen and therefore subject to the court, Marshall determined. For a Federalist, it was a strangely Republican argument, while the response by the Republican president was more in keeping with Federalist philosophy. Jefferson agreed to submit “whatever the purposes of justice may require,” but as head of the executive branch he alone would determine which documents those might be, and no court could order otherwise. “
Voluntarily
,” he said, he would send the requested documents, but while doing so, he insisted it was “the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom.” During the debate over Jay’s Treaty more than a decade earlier, when President Washington had resisted demands by Congress to hand over documents, Jefferson had protested, but now, as president, he was as willing as any Federalist to fight for the autonomy of his office.
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As Jefferson feared but expected, Burr, like Chase, was acquitted. Marshall accepted Burr’s argument that to prove a person treasonous, the prosecution must first show that an actual act of treason had occurred, and the Constitution stipulated that only “levying War” against the United States or giving “Aid and Comfort” to the nation’s enemies qualified as treason. In this case, there had been no war or armed insurrection, nor had Burr aided an enemy. Whether or not he had hoped, planned, or conspired to do so was not at issue in this trial, Marshall informed the jury, which then had no choice but to set Burr free.

Historically, Marshall was on firm ground. At the Federal Convention, on August 20, the framers had deliberately tightened the definition of treason to prevent political prosecutions. It was “essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of Treason,” Gouverneur Morris said then, and although Madison wanted to give Congress “more latitude” in defining the crime, George Mason’s motion to allow less latitude prevailed, with
only Delaware and Georgia dissenting. None of this had yet been made public, but Marshall was certainly acting in accordance with the intentions of most framers.

To Jefferson, though, Marshall had simply found a “loophole” in order to acquit Burr. Only because the government had intervened had Burr’s treasonous designs not been set into motion. Jefferson was as upset with the suppression of evidence as with the acquittal. Marshall had deemed the testimony of 140 government witnesses immaterial since there had been no actual treasonous act, but Jefferson now insisted affidavits from these witnesses “be laid before Congress, that they may decide, whether the defect has been in the evidence of guilt, or in the law, or in the application of the law, and that they may provide the proper remedy for the past and the future.” Since the judicial branch—“our Foreign Department,” he later called it in disdain—had neglected its proper duty, he would take the matter to the people, through their elected representatives. Accordingly, on October 27, in his Seventh Annual Message to Congress, he submitted for the members’ consideration evidence from the court proceedings “together with some evidence not there heard.” The “framers of our constitution,” he noted, had wished both to guard their government from “destruction by treason” and to protect citizens “against oppression under the pretence of it.” Had those ends been served? In essence, he was asking Congress to evaluate the court’s performance and, if the framers’ goals had not been obtained, to determine “by what means, more effectual, they may be secured.” The president, of course, had already made up his mind on the matter and declared the courts “guilty.” His original draft of the address asked suggestively “whether there is not a radical defect in the administration of the law” and whether the trial did not “induce an awful doubt whether we all live under the same law,” but not wanting to appear heavy-handed, he left this loaded language out of his final version and assumed the evidence would speak for itself.
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True to Jefferson’s request, Congress did hold hearings on the Burr affair, but these failed to produce either a constitutional amendment that would make judges accountable to the people or any other remedy for what Jefferson believed was judicial overreach. To the end of his life, Jefferson considered the failure to contain the judiciary a near-fatal flaw in the Constitution. “It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the
nation,” he wrote in 1821. His answer was a constitutional amendment that would grant judges commissions for defined six-year terms “with a reappointability by the president with the approbation of both houses.” Judges would have to answer to the president rather than vice versa, had Jefferson’s view prevailed.
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In both Burr’s trial and Chase’s impeachment, Jefferson and the Republicans entertained a looser interpretation of the Constitution than did their Federalist opponents, whether Chase and his attorneys or Chief Justice Marshall. Again, this marked a radical reversal in stated principles. Republicans, when resisting what they considered Federalist overreach in the 1790s, had insisted on a tight construction of the Constitution, while Federalists, and in particular Hamilton, had argued that the founding document needed to be interpreted more liberally. On multiple counts, the change in power delivered by the election of 1800 was effecting a sort of polarity shift in ideology, with each side arguing the other’s previous position. Such was, and is, the grammar of politics when power changes hands. In this case, a Republican president defended and tried to expand the executive office more aggressively than a Federalist president, after the problems encountered during Adams’s administration, might dare.