With this week’s arraignment of former President Donald Trump, who has been charged with multiple violations of the Espionage Act, the United States joins over 78 other countries — from Italy and Israel, to France and South Korea — that have charged their former heads of state or government with criminal offenses.
It’s a dicey proposition. On one hand, no one is above the law, as everyone from the American Civil Liberties Union to former Vice President Mike Pence has observed in recent days. But if former heads of state face retaliatory prosecution each time a change of parties occurs — as happened several years ago in Brazil, where a conservative government jailed former President Luiz Inácio Lula da Silva in an effort to bar him from running for office again — democratic rule of law crumbles. It is unsurprising that Trump himself has likened his indictment to a political witch hunt, despite mounds of evidence to the contrary. That’s happened in other countries as well. But when GOP leaders echo his claim repeatedly, leading many Americans to believe it, our political system comes under serious strain.
Part of the problem is that while other countries have navigated these concerns, for the United States, it is largely uncharted territory. Two former American presidents arguably presided over criminal enterprises that might have merited arrest and conviction — but Warren G. Harding, whose administration was knee deep in grift and self-dealing, died before the law caught up with him, and Richard Nixon received a pardon from his successor.
But history does offer two proximate examples that could offer a glimpse into how the Trump indictment might play out. The first involved a former vice president, Aaron Burr, who in 1807 stood trial for treason. The second concerned the former “president” of the Confederate States of America, Jefferson Davis, who was similarly arrested on charges of treason against the United States. Both men ultimately went scot-free.
As with the Trump documents case, there was little disputing the facts behind both cases. Had the defendants been ordinary citizens, they would probably have been convicted and faced severe punishment. (Certainly, we know this is the case today, as ordinary citizens have faced years in federal prison for doing exactly what Trump appears to have done.) But both cases sputtered out. In a technical sense, they foundered on serious constitutional questions about the legal definition of treason, but more broadly, Americans were simply queasy about imprisoning former high officials.
Both trials may presage the days to come, as politicians and ordinary citizens debate the severity of the charges against Trump, and the implications of sending a former president to prison. It’s nice to say that no one is above the law. But history suggests that may be a good theory that doesn’t always work in practice.
Any theatergoer knows the story of the duel between Vice President Burr and former Treasury Secretary Alexander Hamilton in 1804 on the bluffs of Weehawken, N.J. Less well-known were Burr’s subsequent machinations. Seeking to recoup his political fortunes, the disgraced politician began conspiring with a former Revolutionary War general to recruit disgruntled military officials in the western territories in a bizarre scheme either intended to break off Texas and West Florida from Spain and fold them into the United States (thereby giving his public reputation a much-needed makeover) or, more likely, break U.S. territories in the west away from the government in Washington, D.C., combining them with conquests from Spain and forming a new country.
Whatever Burr’s intentions, President Thomas Jefferson, a longtime foe, suspected a “deep, dark, and wide-spread conspiracy.” He ordered Burr arrested and brought to trial for treason.
What followed was a long, drawn-out process that Chief Justice John Marshall, who presided over the trial, declared “the most unpleasant case which has ever been brought before a Judge in this or perhaps in any other country which affected to be governed by laws.”
In a strange reversal, it was Marshall, a Federalist, who argued for an extremely tight and restrictive interpretation of treason, whereas Jeffersonian Republicans effectively demanded Burr’s head on a pike and were happy to apply a broader standard.
Years earlier, it had been the Jeffersonians who objected to the liberal use of treason statutes to prosecute organizers of the Whiskey and Fries rebellions. Now, it was a Federalist judge who argued that conspiring to commit treason (which no one really disputed that Burr had done) was different from actually carrying it out. “Conspiracy is not treason,” Marshall reasoned. However much Burr might have plotted and schemed, such actions, occurring prior to the “actual assembling” of troops, did not meet the legal standard. (Never mind that Burr had assembled a force of roughly 60 men and moved them toward New Orleans.) In the end, bound by Marshall’s legal interpretation, the jury acquitted Burr.
Republicans were furious and accused Marshall of authoring a “Treatise on the best way of committing treason without detection or punishment,” while Jefferson himself fulminated against the founders’ “original error of establishing a judiciary independent of the nation.” But in a divided nation, and amid disagreement over just what laws Burr had broken, if any, the acquittal closed the door on a truly bizarre chapter in American history. Disgraced yet again, Burr fled to England, only to return to the U.S. years later, where he lived out his final years in obscurity.
Even by John Marshall’s tight standard, surely there was little doubt that Jefferson Davis, a onetime U.S. Senator and War Secretary, committed treason against his country. He was, after all, the president of the Confederacy and responsible for a civil war that ultimately claimed 750,000 lives.
Or was it that simple?
In the immediate aftermath of Abraham Lincoln’s assassination, Davis was a wanted man. The new president, Andrew Johnson, issued a proclamation declaring that the attack on Lincoln, as well as Secretary of State William Seward, had been “incited, concerted, and procured by and between Jefferson Davis, late of Richmond, Virginia” and “other rebels and traitors against the government of the United States.” Johnson ordered Davis’ arrest and placed a $100,000 bounty on his (roughly equivalent to $2 million in today’s money). On May 10, 1865, the former rebel president was captured by federal troops and remanded to a prison cell at Fort Monroe, in Virginia, while government officials debated whether to try him by military tribunal or in a civilian court.
The problem was, could the government indict Davis for treason? His attorneys thought they could, and they welcomed the charge, as they were eager to argue that secession had always been a legal act, and that Davis could not have committed treason against the U.S. because he effectively renounced his citizenship upon becoming the Confederate president. Administration officials, meanwhile — even Andrew Johnson, who would soon prove no great friend to the Republican party that elevated him to the vice presidency — were eager to establish that secession had always been illegal, and that the Confederacy was a fiction.
Davis’ lawyers had a point. Lincoln’s administration had in fact treated the Confederacy as a real country, both by blockading it (an act of war against a belligerent nation, according to international law) and by expropriating land and enslaved people (through the Emancipation Proclamation) as a war necessity — something the government could not do to its own citizens, who presumably continued to enjoy their constitutional rights.
By this point, the stakes were mostly theoretical. But not entirely. In a strange twist, some radical Republicans — notably, Thaddeus Stevens, the fiery antislavery member of Congress and “dictator of the House” — jumped to Davis’ defense. Stevens even offered to represent him in court. Since the war’s end, Stevens had argued that the Southern states were “conquered territories” — won through war, without the cloak or protection of the Constitution. Reducing the South to a vanquished territorial state would enable radicals to seize rebel land and redistribute it among former enslaved people and loyal whites and deny Southerners representation in Congress until they extended the franchise to Black men. Stevens didn’t particularly care whether Davis went free. He needed a legal pretense for his laudable designs to remake the South.
Political concerns also came into play. In the same way that many observers worry that Judge Aileen Cannon, a Trump appointee who has been assigned the case, is operating from a position of partisan bias, the judicial system that decided Davis’ fate was hardly removed from politics.
In the 1860s, Supreme Court justices served as the chief judges of the federal circuit courts, and Virginia fell under the jurisdiction of Chief Justice Salmon P. Chase, a perennial officer seeker who was, according to a contemporary, “possessed by the desire to be President even to the extent of honestly believing that he owed it to the country and the country owed it to him.” Chase intended to make another run at the presidency and had no interest in alienating voters in the North, who demanded Davis’ conviction, or those in the South, who demanded his acquittal. The chief justice more or less refused to preside over a trial and dragged the proceedings out for two years, while Davis languished in jail. (He was later given a set of rooms, where his wife joined him in residence — but he was still under federal custody.)
In the end, Davis was freed in accordance with a general amnesty proclamation that Johnson issued, effectively granting presidential pardons to all former rebels. Neither he nor any other member of the Confederate government was ever convicted of a crime.
Aaron Burr was not a former president, though he came close, and Jefferson Davis was only kind of a former president. But their cases are instructive, nevertheless. They suggest that many Americans are queasy about putting their former leaders in the dock — that prosecuting a former vice president or president is a high-risk, low-reward game — and that when the stakes are this high, people often disagree about the constitutional standards that apply to the alleged crimes.
It’s little wonder that Trump and his supporters claim that his prosecution is politically motivated. Former heads of state who find themselves in the hot seat have made this argument in other countries as well, including some, like Israel, where there is a strong tradition of peaceful government transitions, absent political retribution. And it’s certainly Trump’s prerogative to mount a strong public and legal defense. Many of the former president’s supporters argue the case is much ado about nothing.
In the end, it will come down to whether the American judicial system is willing to treat a former president the same way it treats everyone else, and for that matter, whether the way everyone else has been treated is just or fair. A Trump acquittal, after all, could have bearing on the government’s ability to prosecute similar crimes when the defendant is not an ex-head of state. If he faces no consequences for his actions — if the system determines that the government tends to over-classify documents, or that the Espionage Act is too blunt an instrument, or that the “crime doesn’t fit the punishment” — should anyone else?
The charges against Trump are fairly cut and dried. But so were the charges against Burr and Davis. As was the case then, the process is as much political as it is legal, and politics will inevitably color the outcome.
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By: Joshua Zeitz
Title: What Aaron Burr and Jefferson Davis Tell Us About the Trump Indictments
Sourced From: www.politico.com/news/magazine/2023/06/16/trump-indictment-precedent-burr-davis-00102291
Published Date: Fri, 16 Jun 2023 03:30:00 EST
