Misuses of “traitor” for opponents and “constitutional crisis” for the president’s defying congressional subpoenas are needlessly inflammatory.
Early in our history, John Marshall, the fourth chief justice of the United States, addressed both the definition of “treason” and enforcement of subpoenas. Marshall served for 34 years between 1801 and 1835. With remarkable wisdom and unanimity, his court gave definition to the new Constitution.
In 1806, Aaron Burr, who was President Jefferson’s former vice president and political opponent, sought to revive his fortunes after his duel with Alexander Hamilton with a venture beyond the Appalachians. Convinced that Burr aimed to form a new nation of western states, President Jefferson had Burr prosecuted for treason before Marshall.
At first, Marshall ruled that the evidence was insufficient to meet the definition in the Constitution, which specifically states, “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort,” and must be shown by the testimony of two witnesses to the same overt act in furtherance of treason, or a confession in open court. Marshall stated treason “is the charge most capable of being employed as the instrument of those malignant and vindictive passions … of contending parties struggling for power.” Jefferson had already publicly declared Burr guilty and was incensed. He complained that only the “tricks of judges” saved Burr from hanging. He unsuccessfully urged Congress to initiate an amendment to the Constitution so that federal judges could be voted out.
Marshall eventually agreed a grand jury would decide if Burr should be tried for treason. The grand jury indicted Burr. Meanwhile, obsessed, Jefferson gave his attorneys pardons signed in blank for them to use with witnesses against Burr. Burr’s attorneys sought a subpoena for the president’s records needed for Burr’s defense. Marshall granted the subpoena over Jefferson’s lawyers’ protests of executive privilege. Marshall firmly ruled that it was the court, not the president, who would decide what would be produced.
Jefferson then declared he would “voluntarily” comply, but reserved the right of the president to independently decide what papers to produce and to whom. Burr was acquitted.
The issue of executive privilege arose again in 1974 when the Supreme Court unanimously held that President Nixon had to obey the court’s subpoena for the Watergate tapes that sunk his presidency.
Today House committees have subpoenaed the records of the president’s accountant, and the president’s records with Deutche Bank. Noting the broad subpoena power of Congress in carrying out its oversight role and in legislating, lower federal courts have upheld the subpoenas, which rulings the president has appealed and are likely to reach the Supreme Court. The House Ways and Means Committee has also subpoenaed six years of the president’s tax returns, but he refuses to comply. The House may hold administration officials in contempt of Congress for disobeying subpoenas. Speaker Pelosi has even mentioned arresting and jailing administration officials in the capitol basement.
However, the court is the branch of our government charged with deciding if the subpoenas are enforceable. The existence of a dispute between the president and Congress over subpoenas is not a crisis, but the refusal of either to comply with the court’s decision will be. A crisis would exist if, for example, the the speaker ignored the court and, asserting an independent authority, sent the capitol police and sergeant-at-arms to arrest and jail administration officials.
A crisis would also exist if the president refused to obey the Supreme Court’s order. The court’s marshals are no match for the forces protecting the executive. With his supporters already inflamed, the president might assert that judges were now among the “traitors” besetting the land and declare martial law. Would the military or some faction thereof obey their commander-in-chief?
Because of founders like Marshall, our institutions have been carefully designed to resist such horrors, but they are not foolproof. Jefferson, and even Nixon, understood that design and those horrors. Our institutions depend on leaders and citizens who are educated in our history and that design. When asked as he left the Constitutional Convention in 1787 whether the convention had delivered a monarchy or a republic, Benjamin Franklin responded, “A Republic---if you can keep it.”