Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: Chief Justice John Roberts went back in history to the
Speaker 1: Aaron Burr treason trials in eighteen oh seven and Chief
Speaker 1: Justice John Marshall's seminal rulings to find precedent for his
Speaker 1: majority opinion in Trump Events, the case authorizing the Manhattan
Speaker 1: District Attorney to subpoena President Trump's financial records. It must
Speaker 1: be nice to have Washington on your side. It must
Speaker 1: be nice. It must be nice to have Washington on
Speaker 1: your side. In an essay entitled it must be nice
Speaker 1: to have Marshal on your side, a riff from a
Speaker 1: song from the Broadway hit Hamilton's constitutional law professor Josh
Speaker 1: Blackman writes that the Chief glossed over some important facts
Speaker 1: in the standoff between President Thomas Jefferson and Chief Justice
Speaker 1: John Marshall over letters Jefferson had that Aaron Burr wanted
Speaker 1: for trial. So did Marshall really win the standoff over
Speaker 1: the documents or did Jefferson? Josh Blackman joins me. Now
Speaker 1: he's a professor at the South Texas College of Law.
Speaker 1: Josh explain why Chief Justice John Marshall still looms so
Speaker 1: large at the Supreme Court. John Marshall is the first
Speaker 1: great Chief Justice, and he said many of the Court's
Speaker 1: most important precedents. In Marvey versus Madison, he expands the
Speaker 1: power of the courts to declare laws on constitutional In
Speaker 1: Gibbons the Odden, he'd defined the meaning of commerce. In
Speaker 1: mccullochy Maryland, he defined what are congress is what are
Speaker 1: called necessary and proper powers. In all these cases, Marshall
Speaker 1: set the first precedent, and to this day the Court
Speaker 1: looks back at him as the sort of oracle of
Speaker 1: American constitutional law. So if you read Chief Justice John
Speaker 1: Roberts majority opinion, he refers to Marshall's rulings from Aaron
Speaker 1: Burr's treason trial. For what general propositions is he referring
Speaker 1: to them? During the Aaron Burr treason trial or the
Speaker 1: former vice president who was famously killed, Alexander Hamilton's in
Speaker 1: a duel. Burr sought certain documents from President Jefferson. He
Speaker 1: thought those documents would help his defense. Jefferson didn't want
Speaker 1: to turn them over, so Marshall issued a subpoena. There's
Speaker 1: a request from a course produced a document, and Chief
Speaker 1: Justice Roberts saw the subpoena issue to Jefferson as the
Speaker 1: basis for the tax return cases. In other words, if
Speaker 1: Jefferson was subject to a subpoena, then Trump's tax returns
Speaker 1: could also be requested. And Jefferson asserted the now famous
Speaker 1: the president has immunity from subpoena's argument, right. Trump argued
Speaker 1: that he was absolutely immune from a subpoena, that these
Speaker 1: documents cannot be requested at all, and the court looked
Speaker 1: to the Aaron Burr trial as evidence to the contrary
Speaker 1: that the president can be subject to the judicial process.
Speaker 1: You're right that in Robert's decision he didn't mention a
Speaker 1: few things, or he glanced over them. He didn't mention that.
Speaker 1: In the beginning of the dispute, Jefferson agreed to provide
Speaker 1: the documents voluntarily. Explain why that's important. You know many people.
Speaker 1: Last week we're watching on Disney Plus the Hamilton's Musical,
Speaker 1: which presents a beautiful story that's mostly historically accurate. It's
Speaker 1: somewhat sanitized to gloss over some rough spots in history
Speaker 1: from Hamilton's Washington, Jefferson and others. I view John Roberts's
Speaker 1: rendition of the facts as the most of the Hamilton musical.
Speaker 1: It tells a great story with a happy ending that
Speaker 1: skips all the bumpy parts. As it turns out, Jefferson
Speaker 1: ignored Marshall's subpoena. He didn't follow it. He said, I
Speaker 1: will voluntarily provide a redacted copy of the document that
Speaker 1: as a pocket, the document that had parts crossed out,
Speaker 1: that these sounds confidential. Marshall demanded that Jefferson comes to
Speaker 1: the court in person. Jefferson said, screw that. He didn't
Speaker 1: send anyone in his place. He never provided the documents
Speaker 1: requested as they were requested. So if you look at
Speaker 1: this history, in this battle between Jefferson and Marshall, I
Speaker 1: think Jefferson one. I think Marshall looks dumb in hindsight.
Speaker 1: He sort of issued his order that was ignored. But
Speaker 1: in the court's t rendition of facts, Marshal is the king.
Speaker 1: He could do no wrong. And I think it's mistakes
Speaker 1: with so much weight in a precedent in which the
Speaker 1: court was basically ignored at first second trial, he received
Speaker 1: a copy of the October letter that he wanted, and
Speaker 1: he wanted the original. Did he ever get the original. No,
Speaker 1: he never got it. And let me just make this
Speaker 1: point clearly, Burrow was on trial for apparently the facts
Speaker 1: are murky, but Jefferson alleged that Burr was trying to
Speaker 1: take over part of the western United States. It's a
Speaker 1: very bizarre plot. One of the pieces of evidence was
Speaker 1: a letter that this general wrote to Jefferson General Wilkinson,
Speaker 1: and this letter alleged that Burrow was basically a foreign agent.
Speaker 1: Now the irony is that Wilkinson was a spy. He
Speaker 1: was actually paid by the Spanish new setting up Burr,
Speaker 1: so the entire case was bunked. That's not really relevant.
Speaker 1: Burr wanted the original copy of the Wilkinson letter. Now
Speaker 1: why original? There were no photo copy machines back then, right,
Speaker 1: there were people copying documents by hand. And as every
Speaker 1: one knows, when you copy something by hand, you can
Speaker 1: make mistakes deliberately or extentally. And Burr worried that parts
Speaker 1: might be left out or omitted, so he wants to
Speaker 1: the original. Jefferson would only give a copy, and if that,
Speaker 1: he gave a copy with turn parts cut out. And
Speaker 1: those are portions that Jefferson thought would pertain to national security,
Speaker 1: Burr said, I want the original, I want to complete document,
Speaker 1: and he never got it. If we could analogize, this
Speaker 1: would be like Trump handing over tax returns, but the
Speaker 1: line that says total income would just be you know,
Speaker 1: blacked out. You know, we don't want to put the
Speaker 1: bottom line. Stuff beco embarrassing. In the beginning of the process,
Speaker 1: before Marshall had issued any orders, Jefferson wrote a note
Speaker 1: saying he would voluntarily comply. How did it disintegrate from there?
Speaker 1: In the history of our republic, the political branches found
Speaker 1: a way to get along voluntarily. It said, it's good
Speaker 1: for the country if we go along with process. I
Speaker 1: think there's a big difference between voluntarily complying versus complying.
Speaker 1: At the point of in the order, the reason why
Speaker 1: it is a voluntary compliance, there's given take. Marshall asks
Speaker 1: for X, Jefferson gives why. Okay, it's not exactly what
Speaker 1: he wanted, as close enough, and both sides can feel
Speaker 1: like they worked it out. But when the court orders
Speaker 1: to do X and only X, then there's no given take.
Speaker 1: There's no play in the joint and that's far less desirable.
Speaker 1: There have been many clashes between the President and Congress
Speaker 1: before right with the Congress wants documents and the President
Speaker 1: doesn't want to give them. But historically they've been able
Speaker 1: to work out some sort of middle arrangements, they've been
Speaker 1: able to figure out a deal. In recent years, that
Speaker 1: period of compromise has largely died for It's novel about
Speaker 1: the New York Attorney's case Virus Vance is that it
Speaker 1: wasn't a request from Congress. It was a requests from
Speaker 1: a state prosecutor, which is novel. So even if the
Speaker 1: Bird trial provided some precedent that was in a federal court,
Speaker 1: Vance case was in a state court. And do you
Speaker 1: think that makes some difference. It didn't make a difference
Speaker 1: to the court, but I think there is a distinction there.
Speaker 1: Does the case also stand out because Chief Justice Roberts
Speaker 1: had to go all the way back to the eighteen
Speaker 1: hundreds to come up with this precedent? Well, I think
Speaker 1: Chief Justice Roberts went back to the eighteen hundreds to
Speaker 1: make it seem like he wasn't doing that much. Chief
Speaker 1: Justice Roberts, before he was on the court with a lawyer,
Speaker 1: and he was a good one, and he was a
Speaker 1: brilliant writer. I think he's probably the best writer in
Speaker 1: the court today. He has such good writing skills as remarkable.
Speaker 1: But I think Roberts's greatest skill is to do a
Speaker 1: lot without making it seem like a lot of work. Right.
Speaker 1: He reached a very important conclusion, but does it in
Speaker 1: a calm, nonchalant fashion, as if there's no big deal.
Speaker 1: What's the big deal? You know, we've been doing this
Speaker 1: all along, he says, Look, I'm not doing anything new.
Speaker 1: I'm only doing what John Marshalls is two years ago,
Speaker 1: because everything is normal. And I think what you have
Speaker 1: to recognize is that this was an expansion far beyond
Speaker 1: what Chief Justice Marshall did two years ago. And if
Speaker 1: you look at the history, Marshall is largely ignored, and
Speaker 1: that's kind of strong footing. To rely on the Chief
Speaker 1: Justice offers what I call a sanitized version of history,
Speaker 1: and it's one that only tells the judiciary side of
Speaker 1: the story. It doesn't tell the executive side as a story.
Speaker 1: If we look at this clash, truly the executive prevailed.
Speaker 1: But this sort of fixation on John Marshall, what I
Speaker 1: call this obesent blind the court to the fact that
Speaker 1: governance is more complicated, and you can't just look at
Speaker 1: John Marshall's one sided account just to look at what
Speaker 1: happened after the fact, the actual clash, not the court
Speaker 1: speckless order that was ignored. When Jefferson ignored Marshall's orders,
Speaker 1: Marshall did nothing to ensure compliance at that point. He
Speaker 1: just sort of dropped it. Well, there were a couple
Speaker 1: of orders. But if I can grossly summarize, Jefferson was
Speaker 1: willing to give either a copy of the document, not
Speaker 1: the original. He was willing to have a redacted version
Speaker 1: of another document, or have one of us to boarders
Speaker 1: to go to the court. He was not willing to
Speaker 1: give the original, not willing to give the unredacted document,
Speaker 1: and not willing to physically go to Richmond and deliver
Speaker 1: it as Marshall requested. You know, you may say all
Speaker 1: that Josh's close enough. Well, general, when a court says jump,
Speaker 1: you say, how high right, you don't get to negotiate.
Speaker 1: But Jefferson basically negotiated after the fact, which shows that
Speaker 1: you don't have this sort of strict compliance with the
Speaker 1: judicial process, that there's some playing the joints when the
Speaker 1: presidents involved. In other words, that whatever the standard is
Speaker 1: for regular folk. The president has a little bit more
Speaker 1: discretion because his unique office. Roberts has said that he
Speaker 1: considers Martial a model for a chief justice. Does he
Speaker 1: refer to him in many opinions all the time, all
Speaker 1: the time. It's an obsession, it's a sycophantasm. S if
Speaker 1: you will. Roberts often speaks of the great Chief Justice.
Speaker 1: You're allied on Marshal in his famous Obamacare decision. He's
Speaker 1: relied on him in many other cases where he talks
Speaker 1: about restraints. It's just sort of veneration, this hero worship
Speaker 1: of a person. And I don't blame him. Marshal's remarkable juris.
Speaker 1: I don't want to minimize it. I mean, in this
Speaker 1: Bird trial lasted a couple of months. You are hundreds
Speaker 1: of pages of opinion to inter pages by hand with
Speaker 1: a quill, right by himself. He would just sit there
Speaker 1: all day in court and he would right opinions all night.
Speaker 1: And at one point he said, I'm sorry for your errors.
Speaker 1: I haven't had a chance to read my work yet,
Speaker 1: you just right in one draft. So, I mean, it's
Speaker 1: stunning the amount of work he did. So we should
Speaker 1: put Marshall in the proper context. He was a justice
Speaker 1: of the court. He issued a ruling on a case,
Speaker 1: the president wasn't very interested in following it. And those
Speaker 1: two sides of the story should inform these sorts of
Speaker 1: disputes or tax returns. But we only heard one side
Speaker 1: of the story, the narrow issue at the presidential subpoena.
Speaker 1: It's a formal complication with what made it seem I
Speaker 1: think in this battle between the separation of powers. On
Speaker 1: the paper, Marshall looks like he prevailed, but if you
Speaker 1: look at what happened, Shepherdson won this one, not even close.
Speaker 1: Thanks Josh. That's Josh Blackman, a professor of constitutional law
Speaker 1: at the South Texas College of Law. And that's it
Speaker 1: for the edition of Bloomberg Law. Remember you can always
Speaker 1: get the latest legal news on our Bloomberg Law podcast
Speaker 1: wherever you get your favorite podcasts. I'm June Grosso. Thanks
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