WEBVTT - Who Really Won the Marshall-Jefferson Standoff?

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<v Speaker 1>You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>Chief Justice John Roberts went back in history to the

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<v Speaker 1>Aaron Burr treason trials in eighteen oh seven and Chief

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<v Speaker 1>Justice John Marshall's seminal rulings to find precedent for his

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<v Speaker 1>majority opinion in Trump Events, the case authorizing the Manhattan

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<v Speaker 1>District Attorney to subpoena President Trump's financial records. It must

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<v Speaker 1>be nice to have Washington on your side. It must

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<v Speaker 1>be nice. It must be nice to have Washington on

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<v Speaker 1>your side. In an essay entitled it must be nice

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<v Speaker 1>to have Marshal on your side, a riff from a

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<v Speaker 1>song from the Broadway hit Hamilton's constitutional law professor Josh

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<v Speaker 1>Blackman writes that the Chief glossed over some important facts

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<v Speaker 1>in the standoff between President Thomas Jefferson and Chief Justice

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<v Speaker 1>John Marshall over letters Jefferson had that Aaron Burr wanted

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<v Speaker 1>for trial. So did Marshall really win the standoff over

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<v Speaker 1>the documents or did Jefferson? Josh Blackman joins me. Now

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<v Speaker 1>he's a professor at the South Texas College of Law.

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<v Speaker 1>Josh explain why Chief Justice John Marshall still looms so

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<v Speaker 1>large at the Supreme Court. John Marshall is the first

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<v Speaker 1>great Chief Justice, and he said many of the Court's

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<v Speaker 1>most important precedents. In Marvey versus Madison, he expands the

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<v Speaker 1>power of the courts to declare laws on constitutional In

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<v Speaker 1>Gibbons the Odden, he'd defined the meaning of commerce. In

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<v Speaker 1>mccullochy Maryland, he defined what are congress is what are

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<v Speaker 1>called necessary and proper powers. In all these cases, Marshall

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<v Speaker 1>set the first precedent, and to this day the Court

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<v Speaker 1>looks back at him as the sort of oracle of

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<v Speaker 1>American constitutional law. So if you read Chief Justice John

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<v Speaker 1>Roberts majority opinion, he refers to Marshall's rulings from Aaron

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<v Speaker 1>Burr's treason trial. For what general propositions is he referring

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<v Speaker 1>to them? During the Aaron Burr treason trial or the

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<v Speaker 1>former vice president who was famously killed, Alexander Hamilton's in

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<v Speaker 1>a duel. Burr sought certain documents from President Jefferson. He

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<v Speaker 1>thought those documents would help his defense. Jefferson didn't want

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<v Speaker 1>to turn them over, so Marshall issued a subpoena. There's

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<v Speaker 1>a request from a course produced a document, and Chief

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<v Speaker 1>Justice Roberts saw the subpoena issue to Jefferson as the

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<v Speaker 1>basis for the tax return cases. In other words, if

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<v Speaker 1>Jefferson was subject to a subpoena, then Trump's tax returns

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<v Speaker 1>could also be requested. And Jefferson asserted the now famous

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<v Speaker 1>the president has immunity from subpoena's argument, right. Trump argued

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<v Speaker 1>that he was absolutely immune from a subpoena, that these

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<v Speaker 1>documents cannot be requested at all, and the court looked

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<v Speaker 1>to the Aaron Burr trial as evidence to the contrary

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<v Speaker 1>that the president can be subject to the judicial process.

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<v Speaker 1>You're right that in Robert's decision he didn't mention a

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<v Speaker 1>few things, or he glanced over them. He didn't mention that.

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<v Speaker 1>In the beginning of the dispute, Jefferson agreed to provide

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<v Speaker 1>the documents voluntarily. Explain why that's important. You know many people.

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<v Speaker 1>Last week we're watching on Disney Plus the Hamilton's Musical,

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<v Speaker 1>which presents a beautiful story that's mostly historically accurate. It's

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<v Speaker 1>somewhat sanitized to gloss over some rough spots in history

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<v Speaker 1>from Hamilton's Washington, Jefferson and others. I view John Roberts's

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<v Speaker 1>rendition of the facts as the most of the Hamilton musical.

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<v Speaker 1>It tells a great story with a happy ending that

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<v Speaker 1>skips all the bumpy parts. As it turns out, Jefferson

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<v Speaker 1>ignored Marshall's subpoena. He didn't follow it. He said, I

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<v Speaker 1>will voluntarily provide a redacted copy of the document that

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<v Speaker 1>as a pocket, the document that had parts crossed out,

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<v Speaker 1>that these sounds confidential. Marshall demanded that Jefferson comes to

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<v Speaker 1>the court in person. Jefferson said, screw that. He didn't

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<v Speaker 1>send anyone in his place. He never provided the documents

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<v Speaker 1>requested as they were requested. So if you look at

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<v Speaker 1>this history, in this battle between Jefferson and Marshall, I

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<v Speaker 1>think Jefferson one. I think Marshall looks dumb in hindsight.

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<v Speaker 1>He sort of issued his order that was ignored. But

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<v Speaker 1>in the court's t rendition of facts, Marshal is the king.

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<v Speaker 1>He could do no wrong. And I think it's mistakes

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<v Speaker 1>with so much weight in a precedent in which the

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<v Speaker 1>court was basically ignored at first second trial, he received

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<v Speaker 1>a copy of the October letter that he wanted, and

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<v Speaker 1>he wanted the original. Did he ever get the original. No,

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<v Speaker 1>he never got it. And let me just make this

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<v Speaker 1>point clearly, Burrow was on trial for apparently the facts

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<v Speaker 1>are murky, but Jefferson alleged that Burr was trying to

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<v Speaker 1>take over part of the western United States. It's a

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<v Speaker 1>very bizarre plot. One of the pieces of evidence was

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<v Speaker 1>a letter that this general wrote to Jefferson General Wilkinson,

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<v Speaker 1>and this letter alleged that Burrow was basically a foreign agent.

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<v Speaker 1>Now the irony is that Wilkinson was a spy. He

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<v Speaker 1>was actually paid by the Spanish new setting up Burr,

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<v Speaker 1>so the entire case was bunked. That's not really relevant.

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<v Speaker 1>Burr wanted the original copy of the Wilkinson letter. Now

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<v Speaker 1>why original? There were no photo copy machines back then, right,

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<v Speaker 1>there were people copying documents by hand. And as every

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<v Speaker 1>one knows, when you copy something by hand, you can

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<v Speaker 1>make mistakes deliberately or extentally. And Burr worried that parts

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<v Speaker 1>might be left out or omitted, so he wants to

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<v Speaker 1>the original. Jefferson would only give a copy, and if that,

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<v Speaker 1>he gave a copy with turn parts cut out. And

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<v Speaker 1>those are portions that Jefferson thought would pertain to national security,

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<v Speaker 1>Burr said, I want the original, I want to complete document,

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<v Speaker 1>and he never got it. If we could analogize, this

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<v Speaker 1>would be like Trump handing over tax returns, but the

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<v Speaker 1>line that says total income would just be you know,

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<v Speaker 1>blacked out. You know, we don't want to put the

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<v Speaker 1>bottom line. Stuff beco embarrassing. In the beginning of the process,

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<v Speaker 1>before Marshall had issued any orders, Jefferson wrote a note

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<v Speaker 1>saying he would voluntarily comply. How did it disintegrate from there?

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<v Speaker 1>In the history of our republic, the political branches found

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<v Speaker 1>a way to get along voluntarily. It said, it's good

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<v Speaker 1>for the country if we go along with process. I

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<v Speaker 1>think there's a big difference between voluntarily complying versus complying.

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<v Speaker 1>At the point of in the order, the reason why

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<v Speaker 1>it is a voluntary compliance, there's given take. Marshall asks

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<v Speaker 1>for X, Jefferson gives why. Okay, it's not exactly what

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<v Speaker 1>he wanted, as close enough, and both sides can feel

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<v Speaker 1>like they worked it out. But when the court orders

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<v Speaker 1>to do X and only X, then there's no given take.

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<v Speaker 1>There's no play in the joint and that's far less desirable.

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<v Speaker 1>There have been many clashes between the President and Congress

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<v Speaker 1>before right with the Congress wants documents and the President

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<v Speaker 1>doesn't want to give them. But historically they've been able

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<v Speaker 1>to work out some sort of middle arrangements, they've been

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<v Speaker 1>able to figure out a deal. In recent years, that

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<v Speaker 1>period of compromise has largely died for It's novel about

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<v Speaker 1>the New York Attorney's case Virus Vance is that it

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<v Speaker 1>wasn't a request from Congress. It was a requests from

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<v Speaker 1>a state prosecutor, which is novel. So even if the

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<v Speaker 1>Bird trial provided some precedent that was in a federal court,

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<v Speaker 1>Vance case was in a state court. And do you

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<v Speaker 1>think that makes some difference. It didn't make a difference

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<v Speaker 1>to the court, but I think there is a distinction there.

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<v Speaker 1>Does the case also stand out because Chief Justice Roberts

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<v Speaker 1>had to go all the way back to the eighteen

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<v Speaker 1>hundreds to come up with this precedent? Well, I think

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<v Speaker 1>Chief Justice Roberts went back to the eighteen hundreds to

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<v Speaker 1>make it seem like he wasn't doing that much. Chief

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<v Speaker 1>Justice Roberts, before he was on the court with a lawyer,

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<v Speaker 1>and he was a good one, and he was a

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<v Speaker 1>brilliant writer. I think he's probably the best writer in

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<v Speaker 1>the court today. He has such good writing skills as remarkable.

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<v Speaker 1>But I think Roberts's greatest skill is to do a

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<v Speaker 1>lot without making it seem like a lot of work. Right.

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<v Speaker 1>He reached a very important conclusion, but does it in

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<v Speaker 1>a calm, nonchalant fashion, as if there's no big deal.

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<v Speaker 1>What's the big deal? You know, we've been doing this

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<v Speaker 1>all along, he says, Look, I'm not doing anything new.

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<v Speaker 1>I'm only doing what John Marshalls is two years ago,

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<v Speaker 1>because everything is normal. And I think what you have

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<v Speaker 1>to recognize is that this was an expansion far beyond

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<v Speaker 1>what Chief Justice Marshall did two years ago. And if

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<v Speaker 1>you look at the history, Marshall is largely ignored, and

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<v Speaker 1>that's kind of strong footing. To rely on the Chief

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<v Speaker 1>Justice offers what I call a sanitized version of history,

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<v Speaker 1>and it's one that only tells the judiciary side of

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<v Speaker 1>the story. It doesn't tell the executive side as a story.

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<v Speaker 1>If we look at this clash, truly the executive prevailed.

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<v Speaker 1>But this sort of fixation on John Marshall, what I

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<v Speaker 1>call this obesent blind the court to the fact that

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<v Speaker 1>governance is more complicated, and you can't just look at

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<v Speaker 1>John Marshall's one sided account just to look at what

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<v Speaker 1>happened after the fact, the actual clash, not the court

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<v Speaker 1>speckless order that was ignored. When Jefferson ignored Marshall's orders,

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<v Speaker 1>Marshall did nothing to ensure compliance at that point. He

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<v Speaker 1>just sort of dropped it. Well, there were a couple

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<v Speaker 1>of orders. But if I can grossly summarize, Jefferson was

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<v Speaker 1>willing to give either a copy of the document, not

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<v Speaker 1>the original. He was willing to have a redacted version

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<v Speaker 1>of another document, or have one of us to boarders

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<v Speaker 1>to go to the court. He was not willing to

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<v Speaker 1>give the original, not willing to give the unredacted document,

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<v Speaker 1>and not willing to physically go to Richmond and deliver

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<v Speaker 1>it as Marshall requested. You know, you may say all

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<v Speaker 1>that Josh's close enough. Well, general, when a court says jump,

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<v Speaker 1>you say, how high right, you don't get to negotiate.

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<v Speaker 1>But Jefferson basically negotiated after the fact, which shows that

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<v Speaker 1>you don't have this sort of strict compliance with the

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<v Speaker 1>judicial process, that there's some playing the joints when the

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<v Speaker 1>presidents involved. In other words, that whatever the standard is

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<v Speaker 1>for regular folk. The president has a little bit more

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<v Speaker 1>discretion because his unique office. Roberts has said that he

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<v Speaker 1>considers Martial a model for a chief justice. Does he

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<v Speaker 1>refer to him in many opinions all the time, all

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<v Speaker 1>the time. It's an obsession, it's a sycophantasm. S if

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<v Speaker 1>you will. Roberts often speaks of the great Chief Justice.

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<v Speaker 1>You're allied on Marshal in his famous Obamacare decision. He's

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<v Speaker 1>relied on him in many other cases where he talks

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<v Speaker 1>about restraints. It's just sort of veneration, this hero worship

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<v Speaker 1>of a person. And I don't blame him. Marshal's remarkable juris.

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<v Speaker 1>I don't want to minimize it. I mean, in this

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<v Speaker 1>Bird trial lasted a couple of months. You are hundreds

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<v Speaker 1>of pages of opinion to inter pages by hand with

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<v Speaker 1>a quill, right by himself. He would just sit there

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<v Speaker 1>all day in court and he would right opinions all night.

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<v Speaker 1>And at one point he said, I'm sorry for your errors.

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<v Speaker 1>I haven't had a chance to read my work yet,

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<v Speaker 1>you just right in one draft. So, I mean, it's

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<v Speaker 1>stunning the amount of work he did. So we should

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<v Speaker 1>put Marshall in the proper context. He was a justice

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<v Speaker 1>of the court. He issued a ruling on a case,

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<v Speaker 1>the president wasn't very interested in following it. And those

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<v Speaker 1>two sides of the story should inform these sorts of

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<v Speaker 1>disputes or tax returns. But we only heard one side

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<v Speaker 1>of the story, the narrow issue at the presidential subpoena.

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<v Speaker 1>It's a formal complication with what made it seem I

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<v Speaker 1>think in this battle between the separation of powers. On

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<v Speaker 1>the paper, Marshall looks like he prevailed, but if you

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<v Speaker 1>look at what happened, Shepherdson won this one, not even close.

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<v Speaker 1>Thanks Josh. That's Josh Blackman, a professor of constitutional law

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<v Speaker 1>at the South Texas College of Law. And that's it

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<v Speaker 1>for the edition of Bloomberg Law. Remember you can always

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<v Speaker 1>get the latest legal news on our Bloomberg Law podcast

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<v Speaker 1>wherever you get your favorite podcasts. I'm June Grosso. Thanks

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<v Speaker 1>so much for listening, and remember to tune to the

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<v Speaker 1>Bloomberg Law Show weeknight at m Eastern right here on

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<v Speaker 1>Bloomberg Radio. H