Draft:Burr-trial/sandbox

Burr was charged with treason because of the alleged conspiracy and stood trial in Richmond, Virginia. A Revolutionary War hero, U.S. Senator, New York State Attorney General and Assemblyman, and finally vice president under Jefferson, Burr adamantly denied and vehemently resented all charges against his honor, his character or his patriotism.

In addition to assembling an armed force to take New Orleans and separate the Western from the Atlantic states, Burr sent a military expedition against territories belonging to Spain, resulting in an additional charge against him for high misdemeanor. George Hay, the prosecuting U.S. Attorney, compiled a list of over 140 witnesses, one of whom was Andrew Jackson, who previously invited Burr to stay at his house when he was on the run. To encourage witnesses to cooperate with the prosecution, Thomas Jefferson gave Hay blank pardons containing Jefferson's signature and the discretion to issue them to all but "the grossest offenders"; Jefferson later amended these instructions to include even those the prosecution believed to be most culpable, if that meant the difference in convicting Burr. Witness testimony was inconsistent, and one of the few witnesses to testify to an "overt act of treason", Jacob Allbright, perjured himself in the process. Allbright testified that militia General Edward Tupper raided Blennerhasset Island and attempted to arrest Harman Blennerhasset, but had been stopped by armed followers of Burr, who raised their weapons at Tupper to threaten him. In fact, Tupper had previously provided a deposition stating that when he visited the island, he had no arrest warrant, had not attempted to effect an arrest of anyone, had not been threatened, and had a pleasant visit with Blennerhasset

Burr's trial brought into question the ideas of executive privilege, state secrets privilege, and the independence of the executive. Burr's lawyers, including John Wickham, asked Chief Justice John Marshall to subpoena Jefferson, claiming that they needed documents from Jefferson to present their case accurately. Jefferson proclaimed that, as president, he was "Reserving the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom." He insisted that all relevant papers had been made available, and that he was not subject to this writ because he held executive privilege. He also argued that he should not be subject to the commands of the judiciary, because the Constitution guaranteed the executive branch's independence from the judicial branch. Marshall decided that the subpoena could be issued despite Jefferson's position of presidency. Though Marshall vowed to consider Jefferson's office and avoid "vexatious and unnecessary subpoenas", his ruled to issue the subpoena. was significant because it suggested that, like all citizens, the president was subject to the law.

Chief Justice Marshall had to consider the definition of treason and whether intent was sufficient for conviction, rather than action. Marshall ruled that because Burr had not committed an act of war, he could not be found guilty (see Ex parte Bollman); the First Amendment guaranteed Burr the right to voice opposition to the government. To merely suggest war or to engage in a conspiracy was not enough. To be convicted of treason, Marshall ruled, an overt act of participation must be proven with evidence. Intention to divide the union was not an overt act: "There must be an actual assembling of men for the treasonable purpose, to constitute a levying of war." Marshall further supported his decision by indicating that the Constitution stated that two witnesses must see the same overt act against the country. Marshall narrowly construed the definition of treason provided in Article III of the Constitution; he noted that the prosecution had failed to prove that Burr had committed an "overt act" as the Constitution required. As a result, the jury acquitted the defendant.