Who Really Won the Marshall-Jefferson Standoff?

your side. In an essay entitled it must be nice to have Marshal on your side, a riff from a song from the Broadway hit Hamilton's constitutional law professor Josh Blackman writes that the Chief glossed over some important facts in the standoff between President Thomas Jefferson and Chief Justice John Marshall over letters Jefferson had that Aaron Burr wanted for trial. So did Marshall really win the standoff over

the documents or did Jefferson? Josh Blackman joins me. Now he's a professor at the South Texas College of Law. Josh explain why Chief Justice John Marshall still looms so large at the Supreme Court. John Marshall is the first great Chief Justice, and he said many of the Court's most important precedents. In Marvey versus Madison, he expands the power of the courts to declare laws on constitutional In

Gibbons the Odden, he'd defined the meaning of commerce. In mccullochy Maryland, he defined what are congress is what are called necessary and proper powers. In all these cases, Marshall set the first precedent, and to this day the Court looks back at him as the sort of oracle of American constitutional law. So if you read Chief Justice John Roberts majority opinion, he refers to Marshall's rulings from Aaron Burr's treason trial. For what general propositions is he referring

to them? During the Aaron Burr treason trial or the former vice president who was famously killed, Alexander Hamilton's in a duel. Burr sought certain documents from President Jefferson. He thought those documents would help his defense. Jefferson didn't want to turn them over, so Marshall issued a subpoena. There's a request from a course produced a document, and Chief Justice Roberts saw the subpoena issue to Jefferson as the

basis for the tax return cases. In other words, if Jefferson was subject to a subpoena, then Trump's tax returns could also be requested. And Jefferson asserted the now famous the president has immunity from subpoena's argument, right. Trump argued that he was absolutely immune from a subpoena, that these documents cannot be requested at all, and the court looked to the Aaron Burr trial as evidence to the contrary that the president can be subject to the judicial process.

You're right that in Robert's decision he didn't mention a few things, or he glanced over them. He didn't mention that. In the beginning of the dispute, Jefferson agreed to provide the documents voluntarily. Explain why that's important. You know many people. Last week we're watching on Disney Plus the Hamilton's Musical, which presents a beautiful story that's mostly historically accurate. It's somewhat sanitized to gloss over some rough spots in history

from Hamilton's Washington, Jefferson and others. I view John Roberts's rendition of the facts as the most of the Hamilton musical. It tells a great story with a happy ending that skips all the bumpy parts. As it turns out, Jefferson ignored Marshall's subpoena. He didn't follow it. He said, I will voluntarily provide a redacted copy of the document that as a pocket, the document that had parts crossed out, that these sounds confidential. Marshall demanded that Jefferson comes to

the court in person. Jefferson said, screw that. He didn't send anyone in his place. He never provided the documents requested as they were requested. So if you look at this history, in this battle between Jefferson and Marshall, I think Jefferson one. I think Marshall looks dumb in hindsight. He sort of issued his order that was ignored. But in the court's t rendition of facts, Marshal is the king.

He could do no wrong. And I think it's mistakes with so much weight in a precedent in which the court was basically ignored at first second trial, he received a copy of the October letter that he wanted, and he wanted the original. Did he ever get the original. No, he never got it. And let me just make this point clearly, Burrow was on trial for apparently the facts are murky, but Jefferson alleged that Burr was trying to take over part of the western United States. It's a

very bizarre plot. One of the pieces of evidence was a letter that this general wrote to Jefferson General Wilkinson, and this letter alleged that Burrow was basically a foreign agent. Now the irony is that Wilkinson was a spy. He was actually paid by the Spanish new setting up Burr, so the entire case was bunked. That's not really relevant. Burr wanted the original copy of the Wilkinson letter. Now why original? There were no photo copy machines back then, right,

there were people copying documents by hand. And as every one knows, when you copy something by hand, you can make mistakes deliberately or extentally. And Burr worried that parts might be left out or omitted, so he wants to the original. Jefferson would only give a copy, and if that, he gave a copy with turn parts cut out. And those are portions that Jefferson thought would pertain to national security, Burr said, I want the original, I want to complete document,

and he never got it. If we could analogize, this would be like Trump handing over tax returns, but the line that says total income would just be you know, blacked out. You know, we don't want to put the bottom line. Stuff beco embarrassing. In the beginning of the process, before Marshall had issued any orders, Jefferson wrote a note saying he would voluntarily comply. How did it disintegrate from there? In the history of our republic, the political branches found

a way to get along voluntarily. It said, it's good for the country if we go along with process. I think there's a big difference between voluntarily complying versus complying. At the point of in the order, the reason why it is a voluntary compliance, there's given take. Marshall asks for X, Jefferson gives why. Okay, it's not exactly what he wanted, as close enough, and both sides can feel like they worked it out. But when the court orders to do X and only X, then there's no given take.

There's no play in the joint and that's far less desirable. There have been many clashes between the President and Congress before right with the Congress wants documents and the President doesn't want to give them. But historically they've been able to work out some sort of middle arrangements, they've been able to figure out a deal. In recent years, that period of compromise has largely died for It's novel about the New York Attorney's case Virus Vance is that it

wasn't a request from Congress. It was a requests from a state prosecutor, which is novel. So even if the Bird trial provided some precedent that was in a federal court, Vance case was in a state court. And do you think that makes some difference. It didn't make a difference to the court, but I think there is a distinction there. Does the case also stand out because Chief Justice Roberts had to go all the way back to the eighteen

hundreds to come up with this precedent? Well, I think Chief Justice Roberts went back to the eighteen hundreds to make it seem like he wasn't doing that much. Chief Justice Roberts, before he was on the court with a lawyer, and he was a good one, and he was a brilliant writer. I think he's probably the best writer in the court today. He has such good writing skills as remarkable. But I think Roberts's greatest skill is to do a lot without making it seem like a lot of work. Right.

He reached a very important conclusion, but does it in a calm, nonchalant fashion, as if there's no big deal. What's the big deal? You know, we've been doing this all along, he says, Look, I'm not doing anything new. I'm only doing what John Marshalls is two years ago, because everything is normal. And I think what you have to recognize is that this was an expansion far beyond what Chief Justice Marshall did two years ago. And if you look at the history, Marshall is largely ignored, and

that's kind of strong footing. To rely on the Chief Justice offers what I call a sanitized version of history, and it's one that only tells the judiciary side of the story. It doesn't tell the executive side as a story. If we look at this clash, truly the executive prevailed.

But this sort of fixation on John Marshall, what I call this obesent blind the court to the fact that governance is more complicated, and you can't just look at John Marshall's one sided account just to look at what happened after the fact, the actual clash, not the court speckless order that was ignored. When Jefferson ignored Marshall's orders, Marshall did nothing to ensure compliance at that point. He just sort of dropped it. Well, there were a couple

of orders. But if I can grossly summarize, Jefferson was willing to give either a copy of the document, not the original. He was willing to have a redacted version of another document, or have one of us to boarders to go to the court. He was not willing to give the original, not willing to give the unredacted document, and not willing to physically go to Richmond and deliver it as Marshall requested. You know, you may say all

that Josh's close enough. Well, general, when a court says jump, you say, how high right, you don't get to negotiate. But Jefferson basically negotiated after the fact, which shows that you don't have this sort of strict compliance with the judicial process, that there's some playing the joints when the presidents involved. In other words, that whatever the standard is for regular folk. The president has a little bit more discretion because his unique office. Roberts has said that he

considers Martial a model for a chief justice. Does he refer to him in many opinions all the time, all the time. It's an obsession, it's a sycophantasm. S if you will. Roberts often speaks of the great Chief Justice. You're allied on Marshal in his famous Obamacare decision. He's relied on him in many other cases where he talks about restraints. It's just sort of veneration, this hero worship of a person. And I don't blame him. Marshal's remarkable juris.

I don't want to minimize it. I mean, in this Bird trial lasted a couple of months. You are hundreds of pages of opinion to inter pages by hand with a quill, right by himself. He would just sit there all day in court and he would right opinions all night. And at one point he said, I'm sorry for your errors. I haven't had a chance to read my work yet, you just right in one draft. So, I mean, it's stunning the amount of work he did. So we should put Marshall in the proper context. He was a justice

of the court. He issued a ruling on a case, the president wasn't very interested in following it. And those two sides of the story should inform these sorts of disputes or tax returns. But we only heard one side of the story, the narrow issue at the presidential subpoena. It's a formal complication with what made it seem I

think in this battle between the separation of powers. On the paper, Marshall looks like he prevailed, but if you look at what happened, Shepherdson won this one, not even close. Thanks Josh. That's Josh Blackman, a professor of constitutional law at the South Texas College of Law. And that's it for the edition of Bloomberg Law. Remember you can always get the latest legal news on our Bloomberg Law podcast

wherever you get your favorite podcasts. I'm June Grosso. Thanks so much for listening, and remember to tune to the Bloomberg Law Show weeknight at m Eastern right here on Bloomberg Radio. H