When TJ cried treason

And why presidents shouldn't

Calling someone a traitor has been as easy in American history as in the history of many other countries. Convicting someone of treason, on the other hand, has been very difficult in America.

There's a cause for this, which Donald Trump should bear in mind. Trump has often called his opponents traitors. A recent example was his response to reports that Joe Biden's aides had deliberately downplayed the then-president's cognitive decline. “This is TREASON at the Highest Level!” posted Trump.

American treason-slinging started early. In the 1790s Federalists called Republicans traitors for favoring France in that country's war against Britain. Republicans returned the insult by calling the Federalists the traitors for favoring Britain.

Thomas Jefferson took things further. Jefferson's election in 1800 owed much to the influence of Aaron Burr in securing the electoral votes of New York, his home state. But upon inauguration Jefferson pushed Burr aside in favor of fellow Virginian James Madison, whom Jefferson made secretary of state. Burr was let to know he would not be on Jefferson's ticket for reelection in 1804.

Burr pursued new opportunities. He ran for New York governor but lost. He ascribed his defeat to the machinations of Alexander Hamilton, a longtime rival. Words were exchanged, honor impugned. Burr and Hamilton dueled, and Hamilton died. Warrants for Burr's arrest were issued, but before they could be executed he skipped off to the west. He spoke of planting a colony across the Mississippi, in the manner of colonies that had been planted in Ohio and Kentucky in previous generations.

Jefferson suspected more. He heard rumors that Burr was plotting a war against Spanish Mexico and aimed to sever Kentucky and other western states from the United States, to attach to Mexico in a country of his own.

The plot seemed outlandish to many, but not to Jefferson, who already worried that the western states, dependent for transport and commerce on the westward flowing Ohio River, would be hard to retain as part of the United States.

Jefferson investigated the rumors and found them credible. He wrote a message to Congress outlining the Burr plot and proclaiming Burr's treason. “I received intimations that designs were in agitation in the western country unlawful and unfriendly to the peace of the Union, and that the prime mover in these was Aaron Burr,” the president told the lawmakers. “It appeared that he contemplated two distinct objects, which might be carried on either jointly or separately, and either the one or the other first, as circumstances should direct. One of these was the severance of the Union of these States by the Allegheny Mountains; the other an attack on Mexico.”

Jefferson detailed Burr's nefarious activities. “He collected from all the quarters where himself or his agents possessed influence all the ardent, restless, desperate, and disaffected persons who were ready for any enterprise analogous to their characters. He seduced good and well-meaning citizens, some by assurances that he possessed the confidence of the government and was acting under its secret patronage.”

The conspiracy was larger than Burr, Jefferson said. But the president wasn't yet prepared to move against the others. For the moment the focus on Burr himself, “whose guilt is placed beyond question.”

Jefferson ordered Burr arrested. A grand jury indicted him for treason, and he was brought to trial in Richmond, in the federal court closest to the scene of the alleged crime.

The presiding judge was John Marshall, chief justice of the United States. In those days justices doubled as trial court judges when the Supreme Court was not in session. Marshall was a cousin of Jefferson but the two shared little in affection or political philosophy. Marshall had embarked on his career project of carving an independent and equal place for the judiciary against the legislative and executive branches. He did not take kindly to what seemed Jefferson's attempt to dictate a guilty verdict of treason against Burr.

Marshall knew the definition of treason under the Constitution. ”Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort,” says Article III. The standard of proof is high. “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 permitted Jefferson's men to present their case. Burr, a well paid lawyer before entering politics, defended himself. He emphasized the Constitution's definition of treason and contended that the prosecution failed to meet the standard of proof.

Marshall agreed and instructed the jury to that effect. The jury delivered a verdict of not guilty.

In doing so it not only rebuffed Jefferson's attempt to compel a treason conviction. It also set the precedent that treason convictions would be rare in America. The number since the Burr trial is in single digits.

The framers of the Constitution knew that in English history treason had been used as a cudgel against mere political opposition. They sought to ensure that no such abuse occurred in the republic they were creating.

Their efforts were successful. May the success continue.