Aaron Burr was only vice-president when he plotted to break up the United States in 1804 — having recently murdered Alexander Hamilton in a duel, he asked the British for assistance to help him take the newly acquired Louisiana Territory out of the union. That was a precursor to a bolder but more nebulous plan he hatched in 1805, after he’d been dropped from Thomas Jefferson’s ticket, to create a whole new empire in the American southwest.
Jefferson would eventually have Burr arrested and tried for treason, only for the Supreme Court, via chief justice John Marshall, to find that Burr had only spoken about his conspiracy and not actually done anything to bring it about, thus failing to meet the high standard of the new republic’s treason laws.
Now Donald Trump, another New York spiv — although Trump only boasted about being able to shoot people; no one claims he’s ever done it — has gone one better. Having tried to overthrow the US government as president, Trump has been rescued by the Supreme Court on the basis that, as Chief Justice John Roberts says, a president “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts”.
That decision will not merely delay but significantly curtail any prosecution for Trump’s incitement of the insurrection on January 6, 2021, that tried to prevent Congress from declaring Joe Biden president. It’s certainly enough to prevent any trial before the 2024 election. Like Burr, Trump is off the hook.
Burr drifted into exile, then spent his remaining life — he lived to 80 — as a New York lawyer, fraudster of widows and father of numerous children, waiting for Gore Vidal to rescue him from obscurity 150 years later. Donald Trump, however, is now on course to return to the US presidency, a course made altogether easier by Joe Biden’s palpable senescence.
Moreover, the Supreme Court’s latest decision doesn’t narrowly hedge in the powers of the US government, as Marshall’s decision in the Burr trial did; it radically expands the powers of the presidency.
If it’s correct that the decision doesn’t give Trump, Biden or any other putative president the power to assassinate opponents without legal accountability, it enables any president, as long as they can stretch their conduct to connect to “core constitutional powers”, to act without fear of judicial oversight. Not for nothing did Justice Sotomayor conclude that the decision “has replaced a presumption of equality before the law with a presumption that the president is above the law for all of his official acts”.
For a man who has promised that his second presidential term will involve authoritarianism, trashing of institutions and revenge on political opponents, it promises a glorious untethering from the rule of law that might constrain his intention to jail Democratic political figures, remove regulatory impediments to corporate donors or gut much of the federal government.
The Burr comparison isn’t merely a glib one about larger-than-life New York shonks given access to power. Burr tested the still-settling foundations of the new republic — he had tried to overtake his own presidential running mate to become president himself in 1801 — and sought to exploit the uncertainty of a new nation adding huge swaths of territory to its already enormous expanse.
Trump set to work trying to dig up those foundations during his first term, culminating in his incitement of the January 6 insurrection, and has been unabashed in his intention to continue trashing norms around presidential conduct if he’s reelected. What will large Democrat states like California and New York do in response if Trump seeks to impose his will on them — by sending in the military to police their streets, for example, as he’s said he would?
With few impediments to Trump’s conduct, state governments will become the first line of defence against his promises to act as a dictator — a promise the Supreme Court has made it far easier for him to now keep.
The ghost of Burr now walks through US politics again, and not just among Trump’s adherents. Breaking up the union may no longer seem such a bad idea after January 20, 2025.
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