Trump Is Not the First President to Seek Prosecution of a Political Rival

But this time around, the role of maintaining the separation of powers has fallen on Attorney General Jeff Sessions.

Could Donald Trump's campaign rallying cry, "Lock Her Up," actually become a reality for Hillary Clinton?
Could Donald Trump’s campaign rallying cry, “Lock Her Up,” actually become a reality for Hillary Clinton? Let’s see what history can tell us. Justin Sullivan/Getty Images

Donald Trump is not the first U.S. president to zealously seek the criminal prosecution of a political rival. President Thomas Jefferson played a key role in the indictment of his former vice president and 1800 political rival, Aaron Burr. Much to Jefferson’s chagrin, none of the charges stuck.

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When running for president, Donald Trump made “lock her up” a campaign rallying cry. Now in office, his stance hasn’t softened. When Justice Brett Kavanaugh accused his attackers of being part of a Clinton vendetta and the FBI so cooperatively produced the report that the president wanted, the threat of criminal prosecution against the Clinton’s could be back.

In the past, Trump has tweeted: “Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems.” At the president’s urging, the Justice Department examined whether a special counsel should be appointed. Does the president’s success with Kavanaugh’s Senate approval signal an increased weaponization of the Justice Department?

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Not surprisingly, Trump has come under fire for using the resources of the federal government to pursue his opponent. While jailing political rivals is largely confined to autocratic governments like Iran, Cuba or Syria, there is precedent in the United States.

President Jefferson’s Vendetta Against Aaron Burr

Aaron Burr served as Jefferson’s vice president during his first term, after coming in second during the controversial election of 1800. Jefferson never trusted Burr and largely shut him out of any key decisions. Burr’s fatal duel with political rival Alexander Hamilton effectively ended his political career. Burr was charged with several crimes, including murder, but all of the charges were ultimately dropped.

"Dear Alexander… If you’ve got something to say, name a time and place, face-to-face… I have the honor to be your obedient servant, A. Burr”
“Dear Alexander… If you’ve got something to say, name a time and place, face-to-face… Your Obedient Servant, A. Burr.” [Aaron Burr and Alexander Hamilton’s 1805 duel] Wikimedia Commons/J. Mund

After leaving public office, Burr sought to make a name for himself on the western frontier. While the exact nature of his plans is still unclear (they may have included starting a war with Spain, establishing his own empire or simply getting rich), they landed Burr in hot water. His co-conspirator in the alleged plan tipped off the federal government. Once he learned of the plot, Jefferson declared “all persons whatsoever engaged or concerned in the same to cease all further proceedings therein as they will answer the contrary at their peril.” Burr was ultimately arrested.

Despite Jefferson’s contention that Burr was traitor whose “guilt is placed beyond all question” before any trial was ever held, Burr was arraigned four times for treason before a grand jury indicted him. 

Article 3, Section 3 of the United States Constitution states: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The Constitution further mandates that treason must either be admitted in open court, or proven by an overt act witnessed by two people. The high bar was designed to prevent government officials from prosecuting their political rivals.

Chief Justice John Marshall Dismisses Charges

Jefferson was actively involved in the case against Aaron Burr. As described by the Smithsonian Magazine: 

The president sought to have a jury made up entirely of Jeffersonian Republicans. He also wanted the Treasury Department to pay the expenses of government witnesses. In an extraordinary delegation of executive authority, he sent his prosecutor ‘blank pardons… to be filled up at your discretion’ should any of the other ‘offenders’ be willing to testify against Burr. Finally, the president also supported a declaration of martial law in New Orleans, enabling military authorities to arrest civilians without warrants—including journalists—and to rifle through private mail at the post office in search of evidence.”

In the end, Jefferson’s attempts to weaponize the judicial system were ultimately unsuccessful. Supreme Court Chief Justice John Marshall presided over Burr’s trial, shutting out many of the prosecution’s witnesses because they could not testify about an “overt act” of “levying war.” The jury found him “not guilty by the evidence presented.”

Thomas Jefferson (1743 - 1826), the 3rd President of the United States of America
“… There is no more status quo. But the sun comes up. And the world still spins…” [Thomas Jefferson, circa 1780] Hulton Archive/Getty Images

Jefferson did not like the Chief Justice or his handling of the case. President John Adams had appointed Marshall to the Supreme Court in the waning days of his presidency, thereby depriving Jefferson of the opportunity to fill the seat. After Burr was acquitted, Jefferson even advocated for an amendment to the U.S. Constitution that would enable the president to remove federal judges from office at the request of Congress. He maintained that the judicial branch was acting “independent of the nation” and that the courts were extending “immunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution.”

This time around, the role of maintaining the separation of powers has fallen on Attorney General Jeff Sessions. So far, he maintains that he is not simply doing the president’s bidding.

“A president cannot improperly influence an investigation,” Sessions said, “and I have not been improperly influenced and would not be improperly influenced. The president speaks his mind. He’s a bold and direct about what he says, but people elected him. But we do our duty every day based on the law and facts.”

Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.

Trump Is Not the First President to Seek Prosecution of a Political Rival