hybrid appellate courts ments dealing with Wilkinson’s part in initiating the treason charges, Marshall ordered the subpoena to issue, amomentous decision effectively holding that the President, unlike a king, was subject to legal process if the situation demanded it.48 The grand jury interviewed twenty-nine witnesses, among themWilkinson, Bollman, and Swartwout, and found enough evidence to indict Burr for treason and high misdemeanor. But the wording of the indictment was strange, because it accused Burr of levying war at a specific place at a specific time, a place from which Burr had been absent at the time stated – a real problem for the prosecution. And the government would have to prove that Burr had levied war, a difficult proposition, as no one was aware of any war that had been started. When the news got out that the grand jury had come within two votes of indicting the prosecution’s chief witness, General Wilkinson, for misprision (concealment) of treason and high misdemeanor, it made it easier for the defense to discredit his testimony by accusing him of lying and to criticize the President for using Wilkinson as a tool to ensnare Burr.49 The trial on the treason charge did not start until August 3, 1807, even though legal proceedings against Burr had begun in April. The jury sworn to try the charge, made up largely of men who supported Jefferson and who had been exposed to ferocious newspaper propaganda about Burr’s alleged treasonous behavior, was believed to be predisposed against Burr. Chief Justice Marshall handled the difficult task of controlling the trial with great care. Subsequent reports gave him high marks for the fairness with which he dispatched the job and for the tenacity he showed in defending the independence of the judiciary against executive pressure. Jefferson complied with the subpoena and released the documents requested to the court, but the President never publicly admitted that it was his duty to obey the court’s subpoena.50 Long and learned legal ar48 Newmyer, R. Kent 2012 p. 97. Marshall’s order was cited as precedent several times in United States v. Nixon, the Watergate Tapes case. U. S. Reports, vol. 418, pp. 707, 708, 713, and 714. 49 Newmyer, R. Kent 2012 pp. 102-105. 50 Ibid., pp. 153-54. 210
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