• We The People Podcast

What Happened After the Burr/Hamilton Duel?

July 11, 2019


July 11 is the anniversary of the 1804 duel in which Alexander Hamilton was fatally shot by Vice President Aaron Burr. On today’s episode, we pick up where the musical Hamilton left off, and explore what happened to Vice President Burr in the aftermath of the duel. Why wasn’t Burr prosecuted until after he left office in 1807? What happened during his treason trial? And what relevance does his treason trial have for executive privilege and indictments of executive officers today? Two leading experts on the life and legacy of Aaron Burr—Nancy Isenberg and Kevin Walsh—join host Jeffrey Rosen in studio to discuss.



Nancy Isenberg is the T. Harry Williams Professor of History at Louisiana State University. She is the author of Fallen Founder: The Life of Aaron Burr as well as numerous other acclaimed books including the 2016 bestseller White Trash and 2019’s The Problem of Democracy: The Presidents Adams Confront the Cult of Personality.

Kevin Walsh is Professor of Law at the University of Richmond School of Law where he teaches constitutional law. He is also President of the John Marshall Foundation, which produced the play “The King of Crimes” about the Burr trial. The King of Crimes was filmed and televised on Virginia’s PBS stations.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

This episode was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich, Ellinor Rutkey, and Zoe Dettelbach.

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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president, and CEO of National Constitution Center. Welcome to We The People, a weekly show of constitutional debate. The National Constitution center is a non-partisan non-profit chartered by congress to increase awareness, and understanding of the constitution among the American people. Today July 11th is the anniversary off the dual in which Alexander Hamilton was fatly shot by vice president Aaron Burr in 1804.

 On today's episode we pick up where the musical Hamilton left off, and explore what happened to vice president Burr after the dual. Why wasn't he prosecuted until after he left office in 1807, and what relevance does his treason trial have for executive privilege, and indictments of executive officials today?

 We're thrilled that joining us here in studio, in Philadelphia, at the National Constitution Center are two of America's leading scholars of the constitution of Aaron Burr, and of American history to explore these fascinating questions. Nancy Isenberg is T. Harry Williams professor of history at Louisiana State University. She is the author of Fallen Founder: The Life of Aaron Burr, as well as many other acclaimed books, including the 2016 best seller White Trash. Also, her latest book co-authored with Andrew Burstein, whose also here with us in studio, is The Problem of Democracy: The Presidents Adams Confront the Cult of Personality. Nancy, it is wonderful to have you here at the NCC.

Nancy Isenberg: [00:01:35] Well, thank you, I enjoyed the last podcast that we did together.

Rosen: [00:01:38] It's great to have you back. Another returning champion, and great friend of the Constitution Center, Kevin C. Walsh is professor of law at the University of Richmond school of law. He is also president of the John Marshall foundation, which produced the play, King of Crimes about the Burr trial. The Kind of Crimes was filmed, and televised on PBS. Kevin, thank you so much also, for advising us for the Constitution Center's exhibit about the constitutional legacy of John Marshall. It is wonderful to have you back as always.

Kevin C. Walsh: [00:02:07] Well thank you, Jeff.

Rosen: [00:02:09] Great, well let us begin when the musical left off. Aaron Burr kills Alexander Hamilton, his term as vice president expires, he's heavily in debt at the time of his forced retirement from politics, and he heads out west on some suspicious business ventures that lead to his treason, and indictment. Nancy, tell us what he was doing out west, and what happened to him that got him into so much trouble.

Isenberg: [00:02:37] Well, before he went out west, one of the jokes that he made, he wrote to his daughter, he said that New York and New Jersey were battling to determine which shall have the honor of hanging the vice president. That's because there were indictments, both the state of New Jersey and the state of New York indicted him for murder. On top of that, what's interesting is that dueling was legal in New Jersey. This is why everyone from New York went over to Weehawken to engage in duels. In fact, in New York, even though they had an anti-dulling law essentially no one had ever been prosecuted.

 Henry Brockholst Livingston, who would end up on the supreme court killed a man in a dual, in New York in 1798 and was never prosecuted. So, Burr was concerned the governor of New York did not want to press charges, but he didn't wait for the coroner's report, decided to get out of New York, because his second went into hiding. Two of his friends had been arrested. He ended up going to Philadelphia, and staying with his good friend Charles Biddle who was a relative of Nicholas Biddle. Then he ended up going down to Washington, and as many people thought was at first many Hamilton supporters were shocked that he was presiding over the Samuel Chase impeachment trial. But, in fact at the end of that, they ended up praising him as one of the greatest presiding officers that they've ever seen, because he handled the impeachment by being fair, and impartial, including all of the senators. If there was a court of law to be debated, and even though Jefferson had wanted Samuel Chase to be charged with sedition, and they impeachment vote had gone in that direction, by the end, he was acquitted of impeachment.

Rosen: [00:04:38] Kevin, at some point after presiding over the Chase trial, Burr headed out west on business ventures according to the Burr conspiracy on the Senate website. His most ambitious scheme was contingent on the outbreak of war with Spain, still in possession of the west. Burr planned an assault on Mexico, and anticipated the western states would leave the union to join in a Southeastern Confederacy under his leadership. Tell us more about what he had in mind, and why it got him into legal Jeopardy.

Walsh: [00:05:09] Well if we could know exactly what he had in mind, it would be a less interesting story because part of the treason trial that eventuates is what was he trying to do? So, after he leaves the capital, gives his farewell address, it causes people to tear up. Then he kind of goes out west, and he is traveling down the Ohio River, and the Mississippi River. What is he doing? He's meeting with politicians, he's meeting with different people. He's gauging attachment to the union, he's gauging people's sympathies. He is developing connections, he'll meet a young lawyer named Andrew Jackson, for example during this time. He was just a man of action, very charismatic.

 He's developing some sort of followers. It's not clear what he was doing. He may have been putting together a group to take on Mexico if there had been war with Spanish, then take opportunity to march on Mexico. He may have been trying to separate the territories beyond the Alleghenies from the union. We're not really sure. We do know though, that Jefferson was aware of the different things that he was doing. He wasn't sure of it, because remember, this is a guy without a real job at that point. He is trying, perhaps, to get an appointment from Jefferson. He's maybe going to be Chief Justice of the Pennsylvania Supreme Court. He's sensing different things, seeing where fortune would take him, but what he's doing is suspicious enough that a federalist district attorney… so federalist being the party that's different from the Jeffersonian Republicans. There's a federalist district attorney who instigates grand jury procedures against him, because you're not allowed to start wars with countries that were at peace with. One of the things that he's trying to get him on is a violation of the Neutrality Act.

 Those grand jury procedures go nowhere. So, we don't know exactly what he was thinking. Another thing that's worth knowing, is that at the same time he was dealing with both the foreign minister of Britain, and of Spain. He's playing them against each other, and we only found this out later on. So, he's up to no good, but we don't know the precise nature of it.

Rosen: [00:07:48] So Nancy, the neutrality prosecution doesn't go anywhere, but at some point he's charged with something even more serious, which is treason. Who charges him with that, what's the definition with treason, and how does this legal Jeopardy evolve?

Isenberg: [00:08:02] Well the first thing I have to clarify is that what Burr was actually doing was engaging in a filibuster. These were extremely common, in fact Alexander Hamilton wanted to support Francisco de Miranda who had this grand scheme of basically organizing a filibuster into Mexico. This is in the 1790s. This is how the United States acquired western Florida during the war of 1812, because James Madison looked another way, and a Virginian engaged in a filibuster. This is how Texas acquired its independence, was from a filibuster. This is what Andrew Jackson did when he kind of goes into Florida and get support of John Quincy Adams. He's also engaging in a filibuster.

 What's a filibuster? Not what we think about where there is an effort to prohibit debate in Congress. It's a private army. This is where the law is unclear, because there is… and this is what John Wickham during the treason trial, and the misdemeanor trial for violating the Neutrality Act brings up this point, that essentially it had been practice, and it continues to be practiced that during times of war filibusters are permitted. Now John Marshall doesn't end up supporting that, but during the treason trial this is what Wickham puts forward.

 The other thing is, we have to put this in even bigger context because it's all about American Western expansion, and expansionism in general. Land property was the major source of wealth. One of the things Burr does when he goes out west, he ends up investing in a piece of property. It's called The Bastrop property. Kevin is right, he's making contacts with a bunch of ex-senators, and senators. There's a lot of evidence that all of these people are interested, and not only filibusters, but interested in acquiring land from Mexico. That's because Bo Jefferson and Madison, and all of his supporters like Andrew Jackson basically believe that Mexico is weak, James Madison refers to it as kind of being a weak woman whose boundaries are permeable. Essentially they believe that acquiring land by any means possible… as Burr will say during the trial where he admits that he was engaging in a filibuster, that it would be useful to the United States.

Rosen: [00:10:28] Great. So, thank you for defining that unconventional understanding of filibuster, and Burr is engaging in one, raising a private Army, but somehow then he gets indicted for treason. Kevin, who invited him for treason, and what is the definition of treason?

Walsh: [00:10:43] It's his old political ally, and now enemy, President Thomas Jefferson who ultimately commands that he be indicted for treason. Now, we have to back up a little bit because we've talked about how we're a little uncertain how exactly, what Burrs intentions were. There was a way he could have used his private army legally. But, that requires there being a war ongoing. So, the Neutrality Act problem comes if you attack a nation that were at peace with. Well, he had a co-conspirator in whatever the conspiracy was, a fellow by the name of General Wilkinson. Wilkinson is the military commander in New Orleans, and the Louisiana territory. Now, there are other high level people. But, Wilkinson is key to this because he's got military and he's got to be the one that engages in the war with the Spanish troops, but that never happens.

 So, the Spanish troops come out of Mexico, but then there's some sort of stomach ailment, or dysentery, they end up sort of retreating before any shots are fired. In the meantime, Burr's friend Johnathan Dayton, a fellow Princetonian, send this letter to Wilkinson outlining the broad strokes of what they're trying to do. Wilkinson, now this is a letter that's under cipher. It needs to be decoded, so it needed to be kept secret. Wilkinson gets cold feet. He's worried about whatever they were going to do. He Alters the content of the cipher letter to take out any notion that he was responsible for anything. He sends that up to Jefferson, Jefferson declares Burr a traitor.

 He declares him guilty of treason, this is the president of the United States saying that his former vice president is guilty of treason. There's been no trial, in fact the grand jury procedures that have been tried against him for other things, hadn't gone anywhere. This tells you that there is a lot going on here. Nancy had mentioned earlier, the letter that for had written to Theodosia about the jostling over who was going to hang him, whether it's New York or New Jersey, well it's Jefferson who raises his hand, because whatever Burr was up to, it almost certainly… the cleanest thing they could have gotten him for was a violation, or an attempted violation of the Neutrality Act. Treason, under the US Constitution, in article three section three, is the only crime defined in the Constitution, and it's limited. It says that treason shall consist only of levying war against the United States, or adhering to our enemies giving them aid and comfort.

 Now, what's important is what that leaves out. It leaves out things like encompassing the death of the king, or, it doesn't say anything about constructive treason which will turn out to be a complicated concept. That's something that we can maybe get into a little bit later. So, to answer your question Jeff, it's Jefferson who charges him with treason, and the idea is he's levying war against the United States. So this then becomes a problem for showing how was Burr actually levying War.

Rosen: [00:14:07] Wow, well thank you for that answer, and I have to give you a shout-out for reciting the trees and clause from memory, nearly word perfectly. That was incredibly impressive.

Walsh: [00:14:16] I'm an article three guy, Jeff.

Rosen: [00:14:17] Nicely done, sir.

Isenberg: [00:14:19] Well that's why you have to have two witnesses.

Walsh: [00:14:21] That's right.

Rosen: [00:14:21] Yes.

Walsh: [00:14:22] Two witnesses in open court.

Isenberg: [00:14:23] Right.

Walsh: [00:14:24] To the same act.

Rosen: [00:14:26] Since I actually have the text right in front of me, I'll read the second sentence. Kevin read the first one perfectly. No person shall be convicted of treason, unless on the testimony of two witnesses of the same overt act, or on confession in open court. The Congress shall have the power to declare the punishment of Treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

 Okay Nancy, March 30th 1907, in the US circuit court for the District of Virginia at a special session at the Eagle Tavern in Richmond, Aaron Burr is brought before chief justice Marshall to hear charges of treason, and misdemeanor. What happens next, and how does Marshall evaluate the treason charges?

Isenberg: [00:15:10] Well I just have to back up a little bit and mention about General James Wilkinson, because where Burr is first accused of being a traitor is actually in the newspapers. This is really important, because they're drumming up the same charges that had been used against him in the election of 1800. There's lots of concerned that Burr… one of the other things is, that he's creating a new political party. He is called emperor of the quids which means thirds. That somehow this is going to break apart Jefferson's party. So, there's lots of rumors, and in fact in Kentucky… when he is brought on trial in Kentucky, the editor of the newspaper that was spreading all these rumors has to admit that he didn't have any facts, and he was lying. So, this is kind of where… and even John Adam said that during the trial, one of the things that made Jefferson's declaration of Burrs guilt… where he said it was beyond question, was so wrong because John Adams refers to how there was a lying spirit at work.

 This is the dangerous side, that there were so many rumors, and misinformation. Then General James Wilkinson, once he decides that there isn't going to be war, and he's the one who pulls back from war, essentially he creates chaos in New Orleans. He starts arresting Burr's colleagues, sends them to Washington, he throws a judge in jail. He essentially wants to impose martial law. He claims that Burr has an army of 7,000 that are going to descend on New Orleans. So, he creates this atmosphere. Because what he has to do, because he is rumored to be a conspirator with Burr, he has to create Burr as the enemy to protect himself. Because, with Wilkinson I can't go into detail, he has an incredible reputation for violating the law, eventually he's going to be brought up in court Marshall dealing with the Spanish. I refer to him as a Machiavellian, because essentially he is always trying to manipulate the scene. He ends up manipulating Jefferson that leads to, as you said, the March 30th hearing.

 It just lasts three days, essentially John Marshall… Burr arrives with his defense attorneys. At that point for himself he's acting as one of his defense attorneys because he is one of the best lawyers in New York. He is joined by John Wickham who is really the most brilliant legal mind in Virginia at that time. He has a lot of influence, I think, in shaping Marshall's reaction to the trial and the proceedings, and then he's also joined by Edmund Randolph who had been George Washington's attorney general and Secretary of State, also, was an incredible legal mind.

 So, during this initial hearing at Eagle Tavern one of the things that becomes very clear, is that with all these charges, that there is an Army, and the rumors expand, it goes from 7,000 to 20,000. This is what happens in Ohio. So, essentially one of the issues that comes up is if it's an overt act of war, you have to have evidence that this army actually exists. There ends up being no one testifying to seeing this Army. When Burr is actually arrested, and he's arrested in Mississippi Territory, he's discovered to have a hundred young men, and a couple of boats. The boats aren't filled with arms, but they're filled with books. So, by the time it gets to Virginia, people are already concerned that Wilkinson has drummed up a false alarm. That he's manipulated Jefferson, and it has created this environment that sets up the treason trial, and the persecution feel that they've been put into a very difficult situation because of Jefferson's Reliance on Wilkinson.

Rosen: [00:19:08] So on April 1st, Marshall holds that there is probable cause for committing Burr on a misdemeanor charge for carrying a military expedition against the territories of Spain. But, not on the treason charge. Then on May 22nd the court term commences again, grand jury is sworn, Marshall delivers a charge to the grand jury, and then there's a dispute about a subpoena. Kevin, tell us why Burr wants to issue a subpoena to President Jefferson, and what Marshall decides about whether or not he can issue The subpoena.

Walsh: [00:19:41] Well, Jefferson, remember, has already declared Burr guilty. Burr wants to know what Jefferson knows. He wants to say hey, what was your basis for doing that? What is it mister president that you know? What are the documents in your possession? So, some of this is building his defense. Just what did Wilkinson send him? Because, for example, it turns out that the cipher letter version that Jefferson received, was altered. By Wilkinson. Wilkinson almost goes to jail himself, or ends up in trouble himself. He escapes barely. So, Jefferson has suggested he has knowledge of things, and he's the president of the United States, and he has special information. He's the one who ordered all of this to happen, and we should also say that Burr knew that Jefferson was behind the charges.

 You mentioned that there were two different charges, the misdemeanor of the violation of the Neutrality Act, and then treason. Well, think about the punishments for a misdemeanor, versus treason. Treason was a capital crime. It was known as the king of crimes. The subpoena is in part to gain evidence, and it's in part to continue the public opinion wars that are going back and forth. Nancy mentioned that all of this started in the newspapers. Some out west, and there was a lot of angling for a public opinion, and part of the defense strategy, right? Sometimes layers talk about in these high profile cases, they talk about an inside strategy, and an outside strategy. Right? Your inside strategy is your legal one. The one that goes in the courtroom, the one that gives reasons that can show up in a Judicial opinion, or that a jury can rely on.

 The outside one is what shapes perception everywhere else. When Burr ends up in Richmond for trial, the city of Richmond doubles in population. This is the trial of the century, this is the young Republic at sort of… it's in crisis mode. This is not just a regular defendant, and it's not just a regular sort of prosecutor. Jefferson stays in DC, he doesn't come down personally. But, he is sending very detailed directions about what to do, and this is really interesting because we talk about presidential power. The president has the power to pardon. Nancy mentioned, we need two witnesses, and we need an overt act. How do you get Witnesses? How do you flip people? Especially ones who are conspirators.

 Well, what about dangling a pardon in front of them? A presidential pardon? So Jefferson, he hasn't responded to the grand jury yet, I'll get to that in just a second. But, one of the things he does is he sends down blank pardons to his prosecutor to use in order to gain witnesses. So, subpoena comes in, what does he do to that? We know he's happy sending papers down, does he send down everything Burr asks for? Well, he instructs George Hay who's the prosecuting attorney to say no at first. Then Marshall says, “Well, are you claiming privilege or not? You actually have to give me an answer before, you can't just say I'm not allowed to issue the subpoena. I will issue the subpoena and you can't stop me from issuing it. Then, if you claim privilege, we'll deal with it when you claim privilege.”

 There's this sort of delicate dance back and forth, Jefferson never defies the subpoena, Marshall and never has to enforce it. For our listeners, subpoena is Latin meaning under pain, under pain of penalties of law. So, he doesn't put Jefferson to the pain, right? He doesn't say, “You have to do it.” So, each of them delicately avoid a direct head-on collision. But, Marshall's reasoning about Burr's entitlement to evidence development of his defense, will become influential, and picked up in American constitutional law that matters to this present day.

Rosen: [00:24:06] Thank you for that great summary. As you say, Jefferson and Marshall accommodated each other on a question of executive privilege. Jefferson never asserted that he could keep all documents from the court, but only those that weren't material. Marshall didn't say the Judiciary had an absolute right, but the executive could withhold certain information if it wasn't material. Nancy, tell us how, and in what spirit Jefferson turned over the material. I guess he never acknowledged the subpoena, but he did turn some of the material over, how was that relevant to the case, and how did that lead to what came next?

Isenberg: [00:24:40] Yeah, I think Jefferson was clearly working with Marshall on this. It's odd, because of course they hated each other. They had a long-standing dislike on a personal level, and politically they didn't agree with each other. By the end of the trial, basically Jefferson is going to be blaming Marshall for getting Burr off the hook. So, there's a lot of bad blood there, but clearly they understand their official rules, and Jefferson, in this instance knows he has to respect the courts. Marshall makes it quite clear that this is… especially if Burr is convicted of treason, he can be executed, so this is a serious crime, and therefore withholding evidence in this case is not to be treated lightly.

 The other thing, the bizarre thing about the conspiracy of the treason part of the trial, the other big problem is that the prosecution… and the reason ends up being tried in Richmond is because, the prosecution decided that the overt act of war happened on Blennerhassett Island. Which, is an island that is part of Virginia. It's no longer part of Virginia, now it's part of West Virginia. But, especially where they get into a tangle, because they insist to adhere to the terms of the constitutional terms of treason that you have to show an overt act, they end up focusing on Blennerhassett Island, and the problem is Burr is not there. You know? He is not present, he's in Kentucky at the time, and when they end up… Jefferson is going to end up paying over $100,000 to bring in witnesses for the treason trial. They provide a lot of evidence against Harmon Blennerhassett, who was also put on trial for treason, but they get themselves into this bind, because of insisting on this location.

 Then they're going to end up changing gears, because what I think is so fascinating about the treason trial, and this has to do with a debate that is waged primarily between John Wickham, and William Wirt who ends up being added to the defense team, is that rather than focusing on the issue of the overt act, because they can't prove that without kind of resorting to constructive treason, they end up focusing using the rhetorical language about giving aid and comfort. Which, is really talking about seduction. Wickham breaks up all these old legal cases about wives in England, taking from David Hume's history, being convicted by relation. Like a wife of a traitor can then be accused of treason. Then the more famous part of the law that Wickham brings up is that under English law, you cannot have sex with a relative of the king without his permission, if you do you can also be tried for treason.

 So he brings this up, it might be saying it's very racy, but he brings up the fact that, well what if the person who was the co-conspirator happens to be a woman? Can a woman rape another woman? So, the sexual language is not only met in fun, but it's raising this seduction issue about treason, and this is what's going to lead to the most famous speech ever given in the Burr treason trial, is who is Blennerhassett? Which, is by William Wirt where he portrays basically Burr as this seductive Satan, and Blennerhassett Island is like the Garden of Eden. Somehow, he seduced not… there were rumors that Burr has seduced Blennerhassett's wife, but he had seduced Blennerhassett. That he was Burr's puppet, because they have to say, they have to reject the idea that Blennerhassett is the main figure, and it's Burr who was really the Puppeteer.

 This whole rhetoric of treason really gets out of hand, and the prosecution is forced to make an argument really about constructive treason. They're forced to attack Burr's personality, they're forced to move away from the overt act of war to this idea of seduction, because as Kevin mentioned, this is also a battle that is going on, that's being covered by newspapers, it's being covered in the Press. So, Who Is Blennerhassett by William Wirt ends up being a speech that is recited by school children well into the 20th century, because it's a rhetorical masterpiece, but legally it's very flawed.

Rosen: [00:29:19] Wow I cannot wait to find it, and to recite it myself. Kevin, it sounds like the legal question at the center of the first part of the trial was should evidence unrelated to Burr's conduct on Blennerhassett Island be excluded? On August 31st 1807, Marshall delivered the principal opinion, the trial granting the defendants motion to exclude all of that collateral testimony. Tell us about Marshall's decision, and the fact that it effectively killed the treason indictment.

Walsh: [00:29:59] The question that was addressed seemed like a very narrow issue, right? Should there be other evidence omitted? Marshall… It was something like a 27,000 word opinion, a really long opinion. He would deliver multiple opinions, not all of them all that long, thank goodness. He is pouring through common law from England. He's trying to figure out how these different things apply in the different legal environment of the United States of America. Ultimately he says “Look, you framed your indictment very specifically.” He doesn't mention, or he kind of brushes the fact that they framed it that way, because of an earlier opinion he had delivered in a case called Ex Parte Bollman.

 Bollman was one of the people swept up by Wilkinson, and ultimately brought… he had habeas partisan that was ultimately heard by the Supreme Court. In that opinion for the court, Marshall gives really, the first sort of overlay on the Constitution definition of treason, which it sounded like if people assembled together, than anyone who conspires with them in that assemblage of war is guilty. That's why Jefferson framed the indictment the way that he did. But, Marshall then sticks it to him, and says that's how you chose to plead your case in the indictment, that's the only evidence that you're going to be allowed to present. They had a lot of other people, the question was, was anyone going to turn on Burr? Or was anyone going to testify?

 They couldn't get anyone to testify to the overt act, they needed two witnesses, and legally they weren't able to import this doctrine of constructive treason that… I'm going to oversimplify and just say, even though he wasn't there, he was part of it. That should be enough, Marshall says no, no, that's not good either. This kills the prosecution because there's nothing more to give to the jury. The jury then comes back with this really, really unusual verdict. This verdict is one that is keyed right to the evidentiary ruling, and also to the indictment. I think it's worth reading the exact thing because everyone is looking at this, and saying what does this mean? They said quote Burr was, now I quote, “Not proved to be guilty under this indictment by any evidence submitted to us.”

 Now, what's going on there? They are saying under this indictment. Maybe under another indictment he is a traitor, or under this evidence. Maybe some other evidence, if we weren't stopped from hearing it, maybe he is. So, Marshall gets this, and I'm paraphrasing but he says, well I'm going to write that down as not guilty. So, not guilty.

Isenberg: [00:33:07] Because Burr insist that he does it.

Rosen: [00:33:11] Burr is declared not guilty of treason, but he is separately tried for the misdemeanor of levying war against Spain in violation of the Neutrality Act, and that occurs after he is found not guilty on September 1st, and then indicted on the misdemeanor trial on September 9th. Nancy, I have to stop now to ask, why was Burr, a former vice-president amenable to indictment at all? Does that tell us anything about the amenability of presidents, or vice presidents to prosecution today?

Isenberg: [00:33:43] I think this issue obviously is in the news. But, as I said what is so striking is, that after the duel with Hamilton as I noted, both New Jersey and New York issue indictments for murder. So, they, in no way think that even though Burr is still a lame-duck vice president, that essentially he is protected from estate indictment. On top of that, what is interesting is that this is, like I said, this is why Burr kind of leaves New York even before the coroner's report comes out. During the Chase impeachment trial, a group of Democrats from Washington sent a letter to the governor of New Jersey, that's Governor Bluefield. They send a letter to him appealing to him, basically saying that this indictment is essentially ludicrous. It's ludicrous because like I said, dueling was legal in New Jersey. It had only been pushed forward by some friends and supporters of Hamilton. That they insisted on this indictment.

 So, there's clear evidence in this case that if you are… the state's felt no sense that because he was still vice president that they should not indict him for this crime, and he also ends up, when New York decides to drop the murder indictment, they still indict him for violating the dueling act. So, I think we have to take that into consideration.

 The other thing I'm going to mention about what Kevin Walsh mentioned, is that what's so interesting, the reason that there's this confusion in the treason trial, about what testimony should be allowed, is that one of the major people to testify against Burr as a man by the name of William Eaton. His reports had been published in the newspapers, and he ends up being essentially made into a fool, because he had been involved in his own filibuster. Which, is connected to the Tripoli War. He came back and he's demanding to be repaid money from the government, $10,000.

 One of the things that Burr points out when he's finally brought to testify again, he's allowed to testify initially, and he makes these outrageous charges not only that Burr attempted to separate the western states, and form his own country, and establish monarchy, but he goes on to say that Burr was then going to mobilize an army that would invade Washington, and is going to assassinate Thomas Jefferson. Then his response, this is why Wilkin went after Eaton, his response was to go to Jefferson and say, “Well give Burr a foreign appointment. Give him a high post to just get him out of the country.” Then he makes some ridiculous toast against Burr as if that's going to stop all the charges that he's claiming, that Burr is going to kill Jefferson, and create his own country, and reestablish monarchy.

 So, this is where it becomes an issue, because the prosecution wanted to just repeat the same evidence that they had earlier, they wanted to do it in a chronological fashion, and this is what Marshall says, he says, “I'll let you present the evidence, but I'm going to have the right to intervene and say what is considered valid testimony, and what isn't considered valid testimony.” So, with Eaton he basically says, “You're not going to be able to claim that Burr essentially was trying to assassinate Thomas Jefferson. That's off the table.” That's where you see Marshall taking a much more interventionist role in controlling what testimony, what evidence can be put forward in order to limit the most exaggerated, and the most outlandish testimony.

 With Eric Bollman, what's interesting about him is he's the one who does get a pardon dangled in front of him, and this becomes a key dramatic moment where he denies the pardon of Jefferson. Everything seems to be going against the prosecution, and then eventually it is John Randolph who is on the jury, and he calls Wilkinson a mammoth of an equity. Of iniquity, because he initially sees Wilkinson as the real power, the real person who is kind of behind this issue, and he can't believe that Jefferson has been fooled by Wilkinson. So, that's why even with… the response at the end is that Randolph and the jury, they were thinking about indicting Wilkinson. That's what they really wanted to do. There was a vote on that, but they didn't get enough votes. They wanted to kind of have him on the list of people who were indicted, not just Burr, not just Blennerhassett and some of his other associates who end up being part of the indictment.

Rosen: [00:38:59] So, we have these two final parts of the trial. There's the trial on the misdemeanor which begins on September 9th, Marshall excludes the evidence that it doesn't directly prove the charges related to the Neutrality Act, and the jury returns another not guilty verdict within 20 minutes. Then finally there's a motion to try Burr on another federal court, on charges of treason on October 20th. Marshall refuses to commit Burr for treason, but orders for him to stand trial in Ohio on a trial of impairing and providing the means for a military expedition against Spain. So, Kevin just wrap us up about what happened with that final charge, why Burr was so easily acquitted on the Neutrality Act charges as well, and basically whether he got off on technicalities, or might have been guilty on any of these charges.

Walsh: [00:39:52] Well this second phase, I think it's worth saying a couple things about. So, the jury is constrained in the Neutrality Act violation by the same evidentiary ruling as they are on the treason one. William Wirt would later say that John Marshall came between Aaron Burr and death. He would attribute this, you blame the judge, you lost your case, you blame the judge. He may not give that entire credibility because he lost that case, although William Wirt was a big admirer of John Marshall, but also undercutting the credibility is this second act. So the government says, “You know while we have him here, we think we have a case against him in Ohio.” Now, who is not in Ohio? John Marshall. Right? To preside over the judge, and Marshall says, “Yes, you do on this further misdemeanor.” So his final act is to send Burr off, and say “Yep, you're subject in Ohio.” The administration, for reasons I don't fully understand, they end up not pursuing it.

 Perhaps, just a speculation, they kind of had lost the momentum, there was nothing to be gained any more from it. Jefferson comes out of this wounded. He seems vindictive in certain ways, but in other ways he comes out a winner, because he's able to rally public opinion, not only against Bur, this traitor who has escaped on a technicality, as he would put it, but also against this court. The court that twisted the law in Jefferson's telling, in order to embarrass the president. For Jefferson, the personal, and the political really merge together. Marshall is not super popular because opinion breaks down largely along partisan lines. But sort of in the eyes of history there are… and not just of history but also of lawyers, and law professors, and political scientist analyzing this. There is a split of opinion as to whether Marshall twisted things or whether he played it straight.

 The two competing things for folks who are interested, I think Edward Corwin is probably the one who treats the Burr trial as a blemish on Marshall's record, and Robert Falkner's response to Corwin on this point is probably the best on the other side. I have to cast my lot with Falkner on this one. I just thought I'd share, for how personal this trial was for all of these men, and they were all men. They were strutting their stuff, the chief who was there presiding as a trial judge, because he was riding circuit, and this was his circuit, he ends up… when you read some of these things you can feel the humidity coming through judicial opinions which you often don't see.

 But, in one of the rulings when all this public opinion was swirling around, here's what he wrote in his opinion. It really gives you a sense of the struggle that's there, and it's just rare that a judge lays it out so clearly. He says, “That this court dare not use our powers most true. That this court dare not shrink from its duty, is not less true. No man is less desirous of placing himself in a disagreeable situation. No man is desirous of becoming the popular subject of calumny. No man, might he let the bitter cup pass from him without self reproach would drain it to the bottom. But, if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty, or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace.”

 He is laying it all on the line there, and for the judiciary in the long-term, the Burr trial is seen as a victory for a due process, a victory for judicial impartiality. A victory for the rule of law. It vindicates in some ways, John Adams' criticism of Jefferson. Remember this all began when Jefferson publicly pronounced him a traitor when John Adams had said, “Mister Jefferson has been too hasty. Even if his guilt is clear as the noon day sun, the first magistrate. The president of the United States ought not to have pronounced it before a jury so tried him.” There was a jury trial, people fight about whether they were properly instructed, where they got all the evidence, but Burr was acquitted of the capital crime. He still had to face things in Ohio, but the administration gave up on that.

Rosen: [00:44:47] Thanks so much, that was beautifully read. For the final round I'm going to ask you, Nancy, what are the contemporary lessons of the Aaron Burr trial? You and your co-author Andrew Burstein who is here in the studio have an (inaudible) in the Washington Post today, it's time for Congress to take power back from the presidency, lawmakers should start by reclaiming the powers of Investigation. You don't talk about Bur, but you do cite the example of President Adams and others, who Kevin just mentioned. If you had to distract some lessons from the Burr trial about the amenability of the executive to oversight by the Judiciary, and Congress, what would it be?

Isenberg: [00:45:23] I think that the crucial issue was insisting that the subpoena, that require Jefferson to hand over these crucial… what he wanted was a letter from Wilkinson, this crucial letter that was seen as supposedly Wilkinson providing evidence of this act of treason. But, this was a very crucial letter. That is essentially in a case of this nature, such a serious nature, where if Burr had been convicted of treason he would have been executed, that the president does have to essentially provide this information, provide these papers. I think that is a really important point. The fact that we have to realize that the president is not above the law. That this is one of the problems I think we face, which is very different from how the founders imagined the executive branch, because the founders were deeply concerned that they did not want the executives to have the same powers as a king.

 In fact, this is one of the problems we face today, because executive privilege really comes from an older tradition of royal prerogative that was granted to a king. We've seen the increasing power of the presidency in the 20th century, and essentially the founders, this is why Congress is the first branch that is established under the Constitution under Article one. This is why Jefferson, when he is Secretary of State under Washington defends the idea that Congress is a quart of inquest. So, we have to take this idea, and this is the idea where John Adams is so central. This idea that the founders did want… everyone sort of thinks this is a cliche, but this idea of a balance of power, and for Adams, one of the key themes that he said is that the executive, that the powers that are shared not only is it a balance of power, but there must be a respect for moderation and humility when it comes to the exercise of authority and power.

 I think this is another really important lesson, because even though Jefferson and Marshall are at odds, they don't like each other, they don't respect each other, essentially they know their official rules, and they know the limits. They respect those limits.

Rosen: [00:47:56] Kevin, last word to you, what are the lessons of the Burr trial for battles between the Judiciary and the Congress, and the executive today?

Walsh: [00:48:05] Let me start with the law professor point, which would be just as a matter of the law, of executive privilege, we will see the Burr subpoena issue cited as authority in the Nixon tapes case. So, there's this legal point that the ability of a defendant to gain access to evidence for an ongoing criminal prosecution is not trumped by a blanket invocation of executive privilege. So, that's the lawyerly answer, and that's the sort of doctrinal point. I think more broadly, we're thinking about what lessons there are for a judicial impartiality. This was kind of a set of different kinds of enemies. Now, we've talked about the rival between Marshall and Jefferson, but remember, Marshall was of the same school as Hamilton and Washington. He was a federalist. Here, this is the man who killed his great political ally Alexander Hamilton, and he has this obligation to be, and to appear to be as impartial as possible.

 That's really, really hard then, it's really hard now. Partisan swirls around all sorts of things. It's not just independent courts that matter, Good lawyers matter. Right? Good lawyers making good legal arguments lead to better outcomes for judges. Whether you think the ultimate verdict was correct or not, the process mattered. The idea that someone convicted in a court of public opinion, of a capital crime can still mount an effective defense, and live to fight, if not filibuster another day, I think is an important lesson that still matters today.

Rosen: [00:49:58] Thanks to both of you for your eloquent closing statements. Now as promised, I have to allow myself the privilege of reading the passage that Nancy mentioned. This is an excerpt from William Wirt's defense of Harmon Blennerhassett in the Burr trial, and I just found it online, here it is.

 Who is Blennerhassett? A native of Ireland, a man of letters who fled from the storms of his own country to find quiet in ours. On his arrival in America he retired even from the population of the Atlantic states, and sought quiet and solitude in the bosom of our western forests. But, he brought with him taste, and science, and wealth and lo! The desert smiled! And yet, in the midst of all this piece, this innocence and this tranquility, this feast of mind and to this pure banquet of heart, the destroyer comes. He comes to turn this paradise into a Hell. Yet the flowers to not wither at his approach, a stranger presents himself, it is Aaron Burr. Then it goes on.

 Thank you very much Nancy, for having called our attention to that power piece of rhetoric, and now just let me say thank you so much Nancy Isenberg and Kevin Walsh for a riveting discussion of the Burr trial on its anniversary here at the Constitution Center. It was synchronicity that brought you both here to have this debate in person, and I was so honored to be part of it. Nancy, Kevin, thank you so much for joining.

Isenberg: [00:51:19] Thank you.

Walsh: [00:51:20] Thank you, Jeff.

Rosen: [00:51:22] Today Show was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich and the Constitutional content team. Today's homework dear We The People friends, identify who spoke this immortal phrase during the Burr trial referring to Jefferson's pronouncement of Burr's guilt ahead of the trial. “He has assumed himself the knowledge of the supreme being himself, and pretended to search the heart of my highly respected friend. He has proclaimed himself a traitor in the face of that country, which has rewarded him. He had let slip the dogs of war, the Hell hounds of persecution to hunt down my friend.”

 Wow, that is great writing, and if you can tell me who said it, email me at [email protected] Also, if you enjoyed today's episode please come visit the National Constitution Center's exhibit, Hamilton: The constitutional clashes that shaped a nation. We highlight the clashes between Burr and Hamilton as well as Madison, Adams and Jefferson on constitutional grounds, and we have the writing desk on which Hamilton wrote The Federalist as well as the original letters in which Hamilton and Burr established the dual that led to Hamilton's Doom. So, please come to Philadelphia and visit, if you're here for We The People podcast, then let us know.

 Please rate, review and subscribe to the podcast on Apple Podcasts and recommend the show to friends. Always remember when you wake, and when you sleep that the National Constitution Center is a private nonprofit. We rely on the generosity, passion and devotion to lifelong learning and superb live debates like this one. People like you who are inspired by are non-partisan mission of constitutional education and debate. You can support our mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate. If you liked today's episode, donate a dollar and let us know on the web that you've done so. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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