We’re going to see a lot in the news about executive privilege as the Bush administration seeks to protect those who are guilty of torture and other repugnant offenses.
And as my hero, Rachel Maddow, has pointed out, we have a government that is not only based on laws, but also on precedents.
One of the earliest precedents related to executive privilege occurred during the treason trial of Aaron Burr under Thomas Jefferson, and it concerned executive orders that were considered relevant to Burr’s defense.
Were they? Chief Justice John Marshall upheld the supoena (duces tecum) but he was a Federalist and a foe of Jefferson, so you be the judge:
Burr was apprehended in Louisiana after a bit of gunplay — no one injured — part of which was included in the indictment against him, as evidence of his treasonous conduct.
Burr wanted to offer in evidence the fact that the party arresting him had been given orders that stated they should “shoot to kill.”
I think that’s relevant to his defense, don’t you? Considering he surrendered himself as soon as it was safe to do so, and considering also that he was on trial for his life? Jefferson refused the supoena on the grounds of executive privilege.
I fail to see how complying with the court’s order would have jeopardize in any way the safety of the United States, especially considering that a man’s life was on the line.
The case against Burr and his codefendant Harman Blennerhassett fizzled when the War of 1812 broke out and everyone in government had something better to do, so we never got a definitive answer on the question of executive privilege. Both men were acquitted, justly, I believe, and life went on.
But what if the president of the United States wanted to withhold evidence that could set someone free, or conversely, help convict someone guilty of a crime? This issue remains to be decided.
If you’re interested in the Burr trial, email me. I have a wealth of amusing anecdotes. For example, did you know that Aaron Burr founded the Chase Manhattan Bank and Tamany Hall AND was convicted of adultery at the age of 80?