Echoes of Trump in the trial of a founding scoundrel

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History's rhymes reassure us that almost nothing is wholly unprecedented or worse than it has ever been — and that basic principles of justice which saw earlier generations through crises just as perplexing as ours still apply.

The seemingly endless misadventures of Donald Trump and his tireless pursuers are, to be sure, more unparalleled than many things in American political life. The first chief executive to be twice impeached and tried by Congress, Trump has been continuously under investigation for seven or eight years by the FBI, special Justice Department prosecutors, various state attorneys general and every journalistic gumshoe in the Western world.

Now Trump is the subject of a criminal probe more serious, or at least more aggressive, than any ever launched against a former president, focused on classified documents he spirited away from the White House. They are documents Trump properly declassified himself, his allies say, mainly exposing earlier anti-Trump excesses at the FBI. They are hypersensitive national security secrets, counter his foes, and their breach imperils America. One hears the death penalty (under the Espionage Act) mentioned at times.

Has America ever seen such a mess before — such a tempest of reckless intrigue, untamed ambitions, political grudges and suspect motives, among people wielding fearsome powers and responsibilities?

Well, sure, though for the best comparison we have to go back several centuries.

The bizarre and spectacular career of Aaron Burr made him the closest thing to a Trump-like provocateur among the famous names in America's founding generation. A charismatic schemer, part-time patriot and full-time scoundrel, Burr fought honorably as an officer in the Revolutionary War, then practiced law and politics in New York so successfully that he was elected America's third vice president in 1800, as the running mate of Thomas Jefferson.

It was more complicated than that, of course. For Burr, as for Trump, the vagaries of the Electoral College presented an opportunity for mischief he could not resist.

An inadvertent tie vote between Jefferson and Burr gave the New Yorker a chance to try to snatch the presidency itself in a House of Representatives vote. He failed in part because his fellow New Yorker and rival schemer Alexander Hamilton (the 21st century toast of Broadway) lobbied for Jefferson. This despite the fact that Hamilton loathed Jefferson's utopian high-mindedness (the feeling was more than mutual) almost as much as he despised Burr's low cunning.

It's worth noting here that many of America's revered framers were accomplished haters. Jefferson's enemies list was long, and Burr was on it to stay after the treachery of 1800. In fact, Burr took over the top spot in 1804, replacing Hamilton after shooting him to death in a famous duel — almost certainly the most consequential action ever taken by a sitting vice president of the United States.

Burr was now an embittered rogue. But he was still, like Trump, strangely able to convert disciples to his vision of personal destiny. He headed west and dreamed up a plan that to this day is something of a mystery. It capitalized on the vague and fragile frontiers of young America at the time and the conflicting North American claims of Spain, France and Britain.

Burr recruited a small force of adventurers who, it was alleged, were being prepared to lead an insurrection against Spanish and/or American authority and establish Burr as some kind of emperor in or around New Orleans.

The far-fetched plot was betrayed to President Jefferson, who was in no mood to see trouble stirred up with a real emperor, Napoleon Bonaparte, from whom Jefferson had just acquired the vast Louisiana Territory and who was then allied with the Spanish.

Jefferson was, however, very much in the mood to hang his former running mate. So began the treason trial of Aaron Burr.

It was not Jefferson's finest hour. He essentially orchestrated the prosecution of Burr from the White House. This was improper, and it didn't even go well. Under Jefferson's direction, federal authorities hauled the accused back to Virginia and charged him with high treason.

Much to Jefferson's disadvantage, this made the presiding judge for Burr's sensational trial none other than John Marshall, the chief justice of the United States. In those days Supreme Court justices served as trial judges as well.

Marshall, Jefferson's distant cousin, was another object of the president's scorn who fully returned the sentiment. Several of Marshall's many landmark rulings came in the form of direct defeats and embarrassments for Jefferson — and there is no reason to suppose the chief justice regretted this.

These cases included Marbury v. Madison, the 1803 ruling in which Marshall established the Supreme Court's power to overturn laws. And it included two historic rulings during the Burr trial.

First, Marshall ruled that even the president of the United States does not "stand exempt from the general provisions of the constitution." In short, no one is above the law, as you may have heard.

Burr had sought to subpoena from Jefferson various presidential documents about the prosecution — which he believed (a la Trump) would expose the corruption of the crusade against him. Marshall's doctrine that a chief executive's privileges could not override a defendant's right to confront his accusers has since been invoked to compel obedience to legal subpoenas from Presidents Richard Nixon, Bill Clinton and ... Donald Trump.

Second, Marshall held that while Burr had clearly been up to something suspicious, the definition of "treason" in the U.S. Constitution is explicit. It is not about conspiring or dreaming of rebellion but consists "only" in actually making war against the government through an "overt act." The prosecution couldn't prove a case like that against Burr, Marshall said, and added that under Anglo-American legal traditions "I do not understand ... that the hand of malignity may grasp any individual against whom its hate may be directed ... charge him with some secret crime, and put him on the proof of his innocence."

Applying Marshall's legal instructions, a jury acquitted Burr of treason, but Marshall ruled he could still stand trial for a lesser violation of the Neutrality Act. Burr fled the country instead.

Lessons for today? One or two. First, the rule of law, so piously invoked just lately, is first and foremost a check on governmental power — on the "hand of malignity." It means that the powers that be can deprive people of liberty, even widely despised people, "only" in furtherance of proper laws precisely applicable to the target's actual conduct. It doesn't mean that every conceivable infraction must be prosecuted no matter what the broader consequences.

Second, haughty claims of immaculate motives and flawless integrity have been humbug in all eras, and even among truly great statesmen, much less today's pretenders. George Bernard Shaw quipped that "the theory of legal procedure is that if you set two liars to expose one another, the truth will emerge." That's more like it.

And for what it's worth, the whole truth of the Burr affair remains unclear 215 years later.