On Aug. 3, 1807, in Richmond, Va., Chief Justice John Marshall opened the trial of former vice president Aaron Burr. The charge: treason against the United States. Burr was accused of plotting an armed insurrection against the government.
More than two centuries later, potential treason is being discussed again following the latest twists in the Justice Department's investigation of former president Donald Trump, including the revelation that the FBI discovered a top-secret document about a foreign nation's nuclear capabilities at Trump's estate in Florida. Former federal prosecutor Glenn Kirschner recently said on MSNBC that Trump's role in igniting "an armed attack on the Capitol … may actually amount to treason." So far, the Justice Department hasn't indicated what charges, if any, might result from its probe, though Trump is facing at least eight criminal and civil proceedings.
Only about 30 people have ever been charged with treason in the United States, and Burr was the highest-ranking official to go on trial. By 1807, he was an outcast from both political parties. He had turned off many Democratic-Republicans when, as Thomas Jefferson's presumed running mate in 1800, Burr had tried to claim the presidency after both men received the same number of electoral votes. Then, as vice president in 1804, Burr shot and killed Federalist Alexander Hamilton in a duel. Burr also presided over the controversial 1805 impeachment trial of Supreme Court Justice Samuel Chase.
After Jefferson won reelection in 1804 with a new vice president, George Clinton, Burr took several trips to the U.S. southwest and launched the "Burr Conspiracy." He assembled an armed force, allegedly to capture a part of Mexico (now Texas) from Spain and to take control of New Orleans in the U.S. Louisiana Territory, and then to persuade western states to join an independent nation he would head.
In December 1806, Jefferson warned that "sundry persons" were conspiring to form an illegal military expedition. In January, he named Burr as "a prime mover" of the treasonous conspiracy and said Burr's guilt was "placed beyond question." Meanwhile, he pressed Congress to pass what became the Insurrection Act of 1807, which gave the president the authority to send in troops to quell uprisings.
In February 1807, Burr was arrested in Alabama and taken by military guard on horseback about 900 miles to Richmond, then a town of about 6,000 people, of whom more than 2,000 were enslaved. Burr was put under guard at the city's Eagle Tavern hotel. Public testimony before a grand jury began on May 22 in Richmond's federal circuit court.
Crowds of people swarmed into Richmond. "They were so numerous that the trial had to be held in the legislative chamber of the State House, which was fitted with sandboxes to catch the flying tobacco juice," wrote R. Kent Newmyer, author of "The Treason Trial of Aaron Burr." Newspapers reported that one street orator was future president Andrew Jackson, who berated Jefferson for "persecuting his innocent friend." Others called for Burr to find justice at the end of a rope. "May his treachery to his country exalt him to the scaffold, and hemp be his escort to the Republic of dust and ashes," a Baltimore man wrote.
At the time, the Supreme Court's six justices sometimes presided over circuit courts. Chief Justice Marshall, who lived in Richmond, took the lead on the Burr case, which featured a dazzling array of legal talent. Leading the prosecution were George Hay, a son-in-law of future president James Monroe, and William Wirt, a future U.S. attorney general. Defense lawyers included former secretary of state Edmund Randolph, former attorney general Charles Lee and Luther Martin, a delegate to the constitutional convention.
But the defense's primary leader "was Burr himself," wrote Joseph P. Brady in his 1913 book "The Trial of Aaron Burr." "He was keenly alive to every proceeding" and "no move was made, or point conceded, without his sanction." Jefferson provided guidance to the prosecution. At Burr's request, Marshall took the unprecedented step of issuing a subpoena to the president to provide certain documents and even to appear in court. Jefferson, citing the Constitution's separation of powers, never complied.
The government's key witness was army commander Gen. James Wilkinson, the Louisiana Territory's first governor, who had joined in Burr's early plans before turning on him. Wilkinson, dressed in his military uniform, "strutted into court . . . swelling like a turkey-cock," novelist Washington Irving wrote in a newspaper. Wilkinson's testimony led to Burr's indictment for treason. Burr, who had been free on bail, was put in the nearby federal penitentiary.
The treason trial began at noon on Aug. 3. Prosecutor Hay presented a broad interpretation of treason to the 12-man jury, expanding on the indictment's charge that Burr had begun forming a military force on Blennerhassett Island in the Ohio River near Marietta, Ohio. On Dec. 10, 1806, the indictment alleged, up to 30 people were assembled, "armed and arrayed in a warlike manner" with "guns, swords [and] other warlike weapons," being there "unlawfully, maliciously and traitorously" and preparing to make war against the United States, starting with an attack on New Orleans. Hay conceded Burr himself was in Kentucky that day.
The treason clause of the U.S. Constitution sets a high bar. It reads in part: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
Marshall, who had been appointed to the Supreme Court in 1801 by lame-duck Federalist President John Adams, leading Jefferson to accuse the Federalists of stealing the seat, adopted a strict interpretation of the clause. In his three-hour summation and instructions to the jury, he sided with defense arguments. He said an "overt" act of war must be "proved by two witnesses. It is not proved by a single witness." He added, "No man can be convicted of treason who was not present when the war was levied."
Marshall left the jury little choice. After 25 minutes, the jurors returned with a verdict: not guilty.
Jefferson was furious. "It now appears we have no law but the will of the judge," he fumed. Effigies of Marshall and Burr were hung in several cities. Burr was soon a free man.
Historians still debate just how serious the Burr insurrection was, but he was widely considered a traitor at the time. He moved to England for five years, then returned to New York. In 1833, he married a wealthy widow who was 19 years his junior and who soon saw her husband losing her money in costly land speculation.
Burr died at age 80 on Sept. 14, 1836 — the same day his divorce was finalized. His former wife's divorce lawyer was Alexander Hamilton Jr.
Ronald G. Shafer is the author of "Breaking News All Over Again: The History Behind Today's Headlines," a collection of his Washington Post Retropolis columns.