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If Presidents are Immune Then Aren’t Vice Presidents, Too? And Yet…

So, I hate to break it to the Court – who gets a lot of things wrong – they got this one really, really wrong. Some of you may recall that way back in the early days of the Republic, when the Federalists and the Republicans (or maybe they were the Democrats - sometimes the Repubican-Democrats...we're just gonna call them Republicans here) really despised each other (and also some Federalists could not stand other Federalists and some Republicans hated other Republicans). Way back then, there was a notion of honor. Indeed, the signers of the Declaration of Independence pledged to each other their lives, their fortunes, and their sacred honor. It was a thing. A really meaningful thing.


Honor was also a reason to challenge someone to a duel. Duels are idiotic battles where one discusses defending one's honor with just enough words to decide the rules of a battle with weapons instead of actually just talking through the disagreement. At one time, they challenged each other all swashbuckle-y with rapiers which – in the story relevant to today’s post – would have been far preferable but, boy, would history have been different! Anyway, the duel we reminisce today had guns - and some misunderstood rules - and possibly a shot in the air - and possibly a shot at the opponent. In the end, Alexander Hamilton was shot in the stomach by Aaron Burr who happened to be Vice President of the United States of America at the time.


People were outraged. First of all – Hamilton was very smart. I would be lying if I said he was beloved – he was not beloved – but he was respected for his intelligence. He was also a monarchist and a big fan of a strong centralized government which…umm…has its problems, but I digress. Anyway, people were so unhappy with Burr that this duel was not viewed as a genuine battle for honor, but instead (ominous music here) it was considered murder. Burr was indicted and like the coward he was, he escaped to Washington where he performed all of the duties of the Vice President (which at the time consisted of avoiding law enforcement because, honestly, Jefferson did not trust him and he had nothing to do...which was why he was in Weehawken in the first place.)


Aaron Burr rabbit hole: No one will write a musical about Burr (although Gore Vidal wrote a positively brilliant novel about him), but let’s give him his props. He graduated from Princeton at the age of 17 (it was not called Princeton then, but it was Princeton). Like Hamilton, he served in the military during the Revolutionary war; and he was pretty heroic. He was considered to be a brilliant attorney at a time of extraordinarily brilliant attorneys (looking at you, John Adams). He was an intelligent and highly skilled politician who – lest we forget – was almost elected president by the House of Representatives (because that is the way they did things then – it was so cute – so many people, so few actual voters or at least voters who counted which is what some people believe was a very, very good thing - it's not - and they also want to abolish reproductive healthcare and also install a fascist, authoritarian state so maybe pay actual attention to the news because even if you hate the Framers because they owned slaves, they really, truly created a republican form of government but only if we can keep it which, umm, we better...) Burr, in other words, was not dumb. He was not beloved but he also was not so much behated either (please start using behated – it is such a good word I made up all by myself). He was not even really a hothead. He and Hamilton were always at odds, but if we are honest, Hamilton despised Burr more than Burr despised Hamilton. Anyway – he was a patriot until he was a traitor but we are not there yet (this is a little bit of foreshadowing).


Alexander Hamilton rabbit hole: I know a lot of people love him because Lin-Manuel Miranda DID write a musical about him, maybe you’ve heard of it. And here he should get his props – he may very well be the original self-made man in America – born to a single mom and poor, but brilliant beyond belief with the uncanny ability to get himself into positions near power and then impress the hell out of the person holding power. But, he had almost no political sense and very little common sense. His son had died in a duel so it is nonsense to think he did not know people could die in these things and yet he allowed himself to be cajoled into a gun battle with a far superior marksman. I am not victim blaming – I am just being honest. Hamilton never ever ever ever should have allowed himself to be so pulled by emotions that he was facing down a man he abhorred holding a gun. AS mentioned, it did nto end well.

 

Okay – so here we are in July, 1804 (220 years ago this week, in fact) and Burr either believed Hamilton shot at him first or did not care and shot him anyway, killing him. He was indicted for murder in both New York and New Jersey. Not a single solitary person believed he would be immune from prosecution because he was Vice President of the United States and could concoct some crazy story about how killing Hamilton was somehow an “official act” (recall that Burr was a fantastic lawyer – he could have come up with this defense if it were conceivable, which it was not, because it is insane). He hides in Washington D.C. and rides out the furor. During that time, he also presides over the impeachment trial of Supreme Court Justice Samuel Chase.


Yep – that’s right – a justice of the early Supreme Court was impeached in the House for being too political. It’s 1804 and we are still hearing the echoes from Justice Marshall’s pounding gavel in Marbury v. Madison.  President Jefferson – no shrinking violet from partisan politics – hated the decision in Marbury v. Madison (even though he kind of won – hard to say in that split the baby but give the Court the final say decision) and he hated John Marshall and he hated the political power of the Court and he really could not stand Samuel Chase – an ardent, outspoken, unapologetic, highly partisan Federalist. This justice – with lifetime tenure on the Court – had actually campaigned for John Adams against Jefferson. And that is not even the thing for which he would face impeachment.


About that lifetime tenure rabbit hole: So – here’s the thing – during John Adams’ presidency, Congress passed the Judiciary Act which set up many Article III judgeships around the country in lower courts (it is sometimes called the Midnight Judges Act because it came so late in the term and resulted in the appointment of many Federalist judges). When Jefferson took office in a landslide where his party gained majorities in the House and Senate as well as the winning the White House, Congress repealed the Act. And with that repeal, all those judges lost their jobs despite the promise of lifetime tenure when they were appointed. This is one of the things Chase railed against. Yes, he was partisan, he was not a particularly great judge – it would have been better if he were not on the Court, but you can see where he was coming from on this.


At Jefferson’s behest, the House had already impeached Judge John Pickering of the District Court for the District of New Hampshire just weeks before the Chase impeachment started. The Senate convicted Pickering on charges of intoxication and mental instability and he was removed from the bench. The House sent 8 articles of impeachment to the Senate for trial against Chase. After the Pickering conviction, Jefferson believed Chase would get convicted, too. The Senate was overwhelmingly Republican. His own Vice President would preside over the trial.


In March, 1805, with Burr presiding, Chase was acquitted of all of the charges. The very next day, Burr gave his farewell speech to the Senate in which he proclaimed, “This Senate is a sanctuary; a citadel of law, of order, and of liberty; and it is here — it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrenzy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor." (A little foreshadowing of Mitch McConnell's made up rules on when and how to affirm Supreme Court justices there by Burr.)


Shortly thereafter – or perhaps even as he crafted that beautiful speech that made his colleagues weep – things got a little treasony. The story goes something like this: Burr (who at this time is indicted for murder in two different states) traveled West into the newly purchased Louisiana Territory and bought some property there. Along the way he recruited a militia and the support of a variety of political folk including James Wilkinson who was then the governor of said Louisiana Territory and commander in chief or the armed forces therein, a certain wealthy man named Blennerhassett, and a guy named Andrew Jackson who would feature prominently in the near future but for now was commander of the Tennessee militia.


It was unclear what these troops were up to or the purpose of this voyage and talk of a settlement. Maybe it was to defend against Spain but maybe it was to start a whole new country - depends on who you listen to. President Jefferson thought the later and sent a warrant for his arrest for treason. Burr even tried to surrender but the warrant was tossed. Finally, Burr would be hailed into court and tried for treason before Chief Justice of the Supreme Court, John Marshall. Because the Constitution requires two witnesses in a treason trial and there was only one, James Wilkinson, Burr would be acquitted.


For reasons lost to history, he was never tried on the murder indictments. But in theory they remained as open charges against him for the rest of his life.


He certainly never claimed any kind of immunity against any criminal charges as a sitting Vice President or former Vice President. Keep in mind that the lawyers in the case that went to trial were people who wrote and signed the Declaration of Independence; they were people who authored the Constitution. They were literally in the room where it happened from the beginning and immunity never even came up. Granted, Burr was not president, but he was Vice President when he killed Hamilton. He was Vice President when he concocted his weird conspiracy to create his own country in newly acquired American land. And the only difference between President and Vice President is one heartbeat as folks like John Tyler and Andrew Johnson and Theodore Roosevelt and Harry Truman and Lyndon Baines Johnson could attest.


Even Burr – with his facile legal mind and his team of some of the most esteemed lawyers in the country - including Edmund Randolph and Luther Martin, both of whom were at the Constitutional Convention – did not raise any idea of immunity in regard to criminal charges. This is a newfangled idea.  Do not be fooled by the pseudo-history these folks are feeding the nation as they dismantle everything that everyone before them build as scaffolding of law for this country’s foundation of ordered liberty.  


Immunity from criminal charges was not contemplated for Vice President Burr as the Framers and government officials in this new Republic did not think anyone was above the law. Because no one is.

 

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