A guest blog post from Hoyce McGurgle

I find it awfully interesting that there is so much discussion about the ludicrous claims Donald Trump and his lawyers are making about him essentially having total immunity because he used to be President of the United States. Full disclosure, I’m not a lawyer, but I do have a degree in History and I feel like a pretty important precedent was set on this kind of thing already in our history. Gather ‘round, folks. It’s story time!

Let me tell you a tale about a member of the executive branch at the highest levels of power blatantly committing the highest of crimes and facing the consequences for it. No, I’m not talking about Richard Nixon — he wisely bowed to reality and resigned before being hit by that particular legal freight train. No, there’s an even better precedent in our nation’s history. We need to go back waaay further than the Nixon Era though. All the way to 1804, in fact. I’m talking about Aaron Burr. 

Most folks today know who Aaron Burr was because of the spectacular musical Hamilton. Or, if they’re old enough, perhaps from a famous Got Milk commercial that was aired a lot in the 90’s. But a lot of history nerds like me already knew about him. For those who have somehow missed the musical (you’d be forgiven for missing or forgetting about the commercial) a brief recap. 

Aaron Burr was an orphaned scion of a rather well respected family. He served in the Revolutionary war and was considered a bonafide war hero. After the revolution he went into the legal profession and, eventually, politics where he ran in the election of 1800 against Thomas Jefferson to be the third President of the United States. He lost, of course, which is why you’ve never heard of President Burr. However, back then the Constitution called for the runner up in the Presidential Election to be Vice President under the guy who had just beaten him. (As an aside, even the Founding Fathers realized this maybe wasn’t the best idea and it was promptly amended in time for the election of 1804.)

Vice President Burr was awfully salty about his loss and blamed Alexander Hamilton for it, as Hamilton had supported Jefferson in the election despite the fact that the two had always been political enemies. This was compounded when Burr, realizing Jefferson would not select him to be his running mate under the new VP selection process, ran for Governor of New York and was defeated, thanks again in part to Hamilton. This naturally led to the famous duel where on July 11, 1804, a sitting United States Vice President shot a man and killed him (probably with less singing involved than Lin-Manuel Miranda implied, though). It was the 18th century equivalent of standing on Fifth Avenue and shooting a man. 

And so it came to be that the Vice President of the United States became a fugitive. The states of New Jersey (where the duel took place) and New York (where Hamilton subsequently died) both issued warrants for the arrest of Burr, who decided it would be a fine time to visit his daughter in South Carolina for an extended period of time. Burr would go on to be officially indicted by a New Jersey grand jury. 

Burr never saw trial for the death of Hamilton though because he still had enough friends in high places to pull strings and because there was a legal complication of the circumstances. New York had strict laws against dueling, but the duel had taken place in New Jersey which didn’t. Not to mention that by this point, three years had passed and Burr was facing a whole heap of new legal trouble and had been arrested for his part in a conspiracy to secure a chunk of American and Mexican territory and proclaim it as a new nation backed by England. So, in the face of actual treason, the legally complicated murder trial was just kind of forgotten about. 

All this is to say that it seems pretty clear by Burr’s legal woes that the answer to the question of “can the highest levels of executive power be held responsible for crimes committed” is a pretty clear and definitive “YES.” Burr was subject to arrest, indictment, and trial for crimes committed as Vice President AND after he left office. The only time any arguments of executive privilege came up was in Burr’s treason trial when the defense wanted documents from President Jefferson’s administration and Jefferson cited Executive Privilege … and lost! Justice John Marshall famously denied Jefferson’s claim and ordered the president to supply the requested documents.

At no point did anyone claim that Burr should have immunity for crimes he committed while in office or afterwards just because he used to be Vice President. In fact, Justice Marshall’s ruling that Jefferson had to produce the subpoenaed documents was specifically viewed as setting the precedent that the President himself is not above the law and needs to accede to the judiciary. 

And it’s not like a whole lot of interpretation of the Constitution was left to guesswork back in those days. There wasn’t a whole lot of “oh, what did the Framers mean when they wrote this?” This was 1807, the Framers of the Constitution were still alive (the biggest hint of that is the fact that the guy who wrote the Declaration of Independence was President at the time.) Surely they’d have chimed in with their two cents if the interpretation wasn’t what they intended. Or even changed things afterwards like they did with the process of electing a Vice President!

The arrests and trial of Aaron Burr told us 220 years ago everything we need to know about the ludicrous claims of immunity for Donald Trump today. No one is above the law, no matter what their office. Period.

I’m just hoping that nobody tries to write a hip-hop musical about this mess though because the thought of someone rapping in Trump-speak is making my brain hurt. 

Hoyce is a Boston-based transplant from the Pocono Mountains. Although he has a degree in History with an emphasis in Political Science, most of his writing tends to be for fantasy gaming or occasional posts on Facebook.