Burr Conspiracy - Trial

Trial

Burr was charged with treason because of the alleged conspiracy and stood trial in Richmond, Virginia. He was acquitted due to lack of evidence of treason, as Chief Justice Marshall did not consider conspiracy without actions sufficient for conviction. A Revolutionary War hero, U.S. Senator, New York State Attorney General and Assemblyman, and finally Vice President under Jefferson, Burr adamantly denied and vehemently resented all charges against his honor, his character or his patriotism.

Burr was charged with treason for assembling an armed force to take New Orleans and separate the Western from the Atlantic states. He was also charged with high misdemeanor for sending a military expedition against territories belonging to Spain. George Hay, the prosecuting U.S. Attorney, compiled a list of over 140 witnesses, one of whom was Andrew Jackson. It is said that, to encourage witness participation, Thomas Jefferson gave Hay sheets of blank pardons.

The case was controversial from the beginning. The high misdemeanor charge was dropped when the government was unable to prove that the expedition had been military in nature or directed toward Spanish territory.

Burr's trial brought into question the ideas of executive privilege, state secrets privilege, and the independence of the executive. Burr’s lawyers, including John Wickham, asked Chief Justice John Marshall to subpoena Jefferson, claiming that they needed documents from Jefferson to accurately present their case. Jefferson proclaimed that as President, he reserved the right to decide “what papers coming to him as President, the public interests permit to be communicated to whom.” He insisted that all relevant papers had been made available, and that he was not subject to this writ because he held executive privilege. He also argued that he should not be subject to the commands of the judiciary, because the constitution guaranteed the executive branch’s independence from the judicial branch. Marshall decided that the subpoena could be issued despite Jefferson’s position of presidency. Though Marshall vowed to consider Jefferson’s office and avoid “vexatious and unnecessary subpoenas,” his ruling was significant because it suggested that, like all citizens, the President was subject to the law.

Marshall had to consider the definition of treason and whether intent was sufficient for conviction, rather than action. Marshall ruled that because Burr had not committed an act of war, he could not be found guilty. Because the First Amendment guaranteed Burr the right to voice opposition to the government, “merely suggesting war or engaging in a conspiracy was not enough to require a conviction.” To be convicted of treason, Marshall ruled, an overt act of participation must be proven with evidence. Intention to divide the union was not an overt act: “There must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.” Marshall further supported his decision by indicating that the Constitution stated that two witnesses must see the same overt act against the country. Marshall narrowly construed the definition of treason provided in Article III of the Constitution; he noted that the prosecution had failed to prove that Burr had committed an "overt act," as the Constitution required. As a result, the jury acquitted the defendant. Marshall's rulings led to increased animosity between the President and the Chief Justice.

The historians Andrew Burstein and Nancy Isenberg write that Burr "was not guilty of treason, nor was he ever convicted, because there was no evidence, not one credible piece of testimony, and the star witness for the prosecution had to admit that he had doctored a letter implicating Burr." In contrast, lawyer and author David O. Stewart concludes that Burr's intention included "acts that constituted the crime of treason, but that in the context of 1806, "the moral verdict is less clear." He points out that neither invasion of Spanish lands nor secession of American territory was considered treasonous by most Americans at the time, in view of the fluid boundaries of the American Southwest at that time, combined with the widespread expectation (shared by President Jefferson) that the United States might well divide into two nations. (David O. Stewart, "American Emperor: Aaron Burr's Challenge to Jefferson's America," (2011), pp. 302-03).