The Washington PostDemocracy Dies in Darkness

The case of Aaron Burr suggests Donald Trump won’t face consequences

There are many similarities between Trump’s situation and that of the former vice president, who was acquitted of treason

An illustration of Aaron Burr, the third vice president of the United States. Burr is known for fatally shooting Alexander Hamilton in a duel in 1804. (iStock)

In the past few months, several new lawsuits, investigations and the bombshell revelations of the Jan. 6 committee have given those who dislike Donald Trump hope that, after a lifetime of dodging accountability, the walls are finally closing in on him. But recent polls that suggest unwavering support from his base, as well as the number of Trump-appointed judges in the path of his upcoming cases, present another possibility: Trump’s fate will be like that of former vice president Aaron Burr.

In February 1807, Burr was recognized through a disguise and arrested in Alabama. He was on his way to Spanish Florida with $150,000, fleeing the repercussions of what somehow wound up being his second-most famous crime: inciting his political supporters to wage a violent insurrection against the federal government.

Like Trump, Burr was an outsider politician from New York City whose character horrified his detractors — to the delight of his supporters. During his time in office, Burr regularly ignited political uproars, while being embroiled in constant legal trouble, not the least of which was his other famous crime: the fatal shooting of Alexander Hamilton. When his term ended in 1804, he rushed into the embrace of his largely rural, working-class base, which was historically suspicious of the federal government and shared his grudge against “Virginia dynasty” elitists like President Thomas Jefferson and Secretary of State James Madison — an early-1800s version of the “deep state.”

Over the next two years, Burr exploited the fears and insecurities of these Americans and hatched a plan to create a country of his own from a divided, economically unstable United States. To accomplish this, he solicited the support of military leaders to prop up his designs, including James Wilkinson, who rose to the rank of general and even became the military governor of Louisiana, despite being a double agent on the payroll of Spanish officials in New Orleans.

Once his shock troops were poised to launch their attack, however, Burr was noticeably absent. As authorities raided his headquarters at Blennerhassett Island in the Ohio River, he watched from a safe distance in Kentucky. In keeping physical space between himself and those acting on his behalf, Burr avoided direct placement at the scene of the crime, which would prove to be critical.

Even after his arrest, which sent shock waves through American society, Burr deployed his cult of personality to poison jury pools and threaten witnesses. He used lower courts to score disruptive, if temporary, victories that prolonged and complicated efforts to bring him to justice. A Mississippi grand jury acquitted him of different charges just weeks before his arrest for treason in Alabama, and echoing Burr’s own narrative of victimization, went so far as to accuse the government of bullying him.

When his federal trial began in Richmond in March 1807, he benefited from Chief Justice John Marshall presiding. Marshall’s own hatred of Jefferson — his cousin and political rival — helped insulate Burr from the federal government’s attempts to litigate his broader oeuvre of misdeeds. Marshall even subpoenaed White House documents that Burr claimed to need for his defense, a first in U.S. history. The trial was a melodrama of hearsay and plausible deniability from the start, and even firsthand testimony from co-conspirators such as Wilkinson became suspect because of the partisan narratives looming over the whole ordeal.

Jefferson interjected himself throughout the trial, directing the prosecution from afar, which did more harm than good because it reinforced Burr’s long-running claims that the president and the press were biased against him.

When it came time to instruct the jury on the law, Marshall defined treason in an exceedingly narrow way — one that made it almost impossible to prove since Burr wasn’t present when authorities raided his headquarters. As one legal historian put it, “Marshall’s decision all but guaranteed that Burr would not be convicted.”

When the seven-month trial came to an end in August 1807, Burr was acquitted and allowed to return to civilian life. He traveled around Europe for a few years before returning to New York City to resume his law career in 1812. In the wake of the verdict, many Americans howled at Marshall’s handling of the case, including Jefferson, who tried to get his cousin kicked off the Supreme Court. In Baltimore, they burned Marshall’s effigy in the streets, and op-eds from around the country cried foul.

But this did nothing to reverse the court’s ruling or change the posture of the chief justice himself, who served on the court for almost three more decades and only expanded his influence over the nation’s judiciary during that time.

Though it’s still unclear as to whether Trump will even be charged with a crime, there are striking parallels to Burr’s situation. Trump has managed to muddy the waters in the case of classified documents that he stored at his Mar-a-Lago estate — the case where his personal involvement is perhaps most plain and obvious. His challenges have slowed the pace of the investigation, a strategy which has sapped the Department of Justice of momentum, even as it appears that special master Raymond Dearie and the U.S. Court of Appeals for the 11th Circuit have some skepticism about Trump’s equivocations.

Trump’s victories in the case before U.S. District Judge Aileen M. Cannon, who he appointed, have fueled claims that “Trump judges” will shield the former president from accountability. The ruling from the Court of Appeals panel, which included a Trump appointee, refuted that charge to an extent, but the question remains, especially as Cannon has overruled some of the special master’s orders.

Like Burr, Trump also flings charges of persecution and political animus at every turn despite evidence to the contrary. His base has adopted Trump’s ludicrous claims of planted documents, “perfect” phone calls and blanket declassification — even as his own former national security adviser described the latter as “complete fiction.”

To have any chance of charges against Trump — or even a conviction — weakening the former president politically, President Biden will have to work hard to avoid Jefferson’s blunder of personal involvement, and carefully manage the circus that Trump creates. Any move the federal government makes against him, no matter how much justification it provides, will be seen by MAGA devotees as a partisan attack.

In Trump’s most serious predicament, investigations into his role in the wake of the 2020 election and the Jan. 6, 2021, insurrection, he may also hide behind the very technicality that kept Burr out of jail: the difficulty of proving an overt act.

Burr’s case tells us that Trump’s ability to do this will depend on the specific charges that the Department of Justice or Georgia’s Fulton County District Attorney Fani Willis decide to file — if any. Burr walked because of Marshall’s narrow definition of treason and the idea that one wasn’t responsible for a revolt unless they were actually there. While the crimes that Trump conceivably could be charged with — especially in the documents case — might be easier to prove, some of the legal theories tossed about with regard to Jan. 6 may have similar evidentiary or definition problems.

For now, with no clear indication that criminal charges are coming for Trump, the former president is looking a lot like Burr. As such, opponents convinced of his wrongdoing shouldn’t expect him to face justice. After his acquittal, Burr moved to Europe for a few years and then came back to the United States, where he lived for 20 more years as a free man, grifting rich old ladies into marrying him and then spending their money.

Unless Trump’s pursuers are able to avoid the pitfalls of partisan narratives, politically motivated judges and an easily-encumbered legal system, he could even make out better than Burr, who at least lost his political clout and was made to fear, if only for a moment in 1807, that the game was up.