Dueling: fancy murder and how the fallout of one duel impacted the Trump tax case.
At this point, you've probably all seen Hamilton on Disney+ and you know that Alexander Hamilton meets his demise at the losing end of a duel with Vice President Aaron Burr. But how did dueling become so entrenched in the culture at the time that a former Secretary of the Treasury got in a shooting match with a Vice President to settle their differences? And what does that have to do with Trump's taxes?
A brief history of dueling.
If you haven't seen Hamilton yet you have no excuse. It's streaming on Disney+ and you should stop turbo watching trash reality shows one night and give it a shot. It's the story of Alexander Hamilton's life and that life ends in a duel with the Vice President of the United States. From a modern perspective that is beyond weird. Could you imagine if Mike Pence demanded satisfaction and shot Tim Geithner—Obama's Secretary of the Treasury—to death? Your jaw would be on the floor and you'd wonder what was actually in that brownie you ate.
And such an event would never happen. That's because dueling has fallen out of fashion since the first world war.
In 2007 I read a fascinating piece in the New Yorker about dueling. I highly recommend it and it gives some greater context for why Alexander Hamilton felt compelled to duel Aaron Burr despite losing his son to the practice of dueling and writing about how he objected to it shortly before he died.
Dueling has existed for eons as a form of dispute resolution. It was a real Hobbesian "man in the state of nature" kind of justice. The notion of dueling as a means to defending honor and integrity emerged during the Italian Renaissance. An Italian King, Fiore dei Liberi, published one of the first instructive guides to murdering each other but with some prestige and legitimacy attached to it. The concept of fancy murder was written down as a code in a duello.
And like all good rule schemes, the duello that developed in Italy contained several loopholes to avoid the participants actually having to kill each other. The duel existed to reestablish a participant's honor. It didn't have to be a vehicle for street justice at the tip of a sword. In Italy, the participants would sometimes get so hung up on the rules and various technicalities that they'd never end up getting around to the dueling. They'd just send each other pedantic hate mail. (Some modern attorneys might look at that exercise and decide they'd rather be stabbed.)
Dueling practices varied and changed over time. In the 16th century in France, the Book of the Courtier mandated that people familiarize themselves with all weapons and dueling would end with one or both parties butchered and buried. Fast forward to the 1800s and a visiting Mark Twain observed that for the safety of onlookers, the participants' galleries were placed behind the duelers shooting pistols at each other. It became somewhat of a dog-and-pony show.
For centuries dueling carried one common thread even if the practices and volume of bloodshed varied. The integrity and honor of the parties were called into question. If a person was challenged to a duel they had to show up. The social pressure to participate was intense. And that pressure was so much that Alexander Hamilton, despite losing a child to a duel, felt compelled to participate when Aaron Burr challenged him. And while Hamilton more than likely threw away his shot. Aaron Burr did not.
The gunshot that killed Hamilton still reverberates in the Republic today and not just in a show like Lin Manuel's Hamilton. It came up recently in Mazars, the supreme court case about whether Trump's tax returns can be subpoenaed.
Aaron Burr shooting Hamilton resulted in Trump's tax returns getting subpoenaed.
The early American Republic was not pretty. A lot of early American history is a bit of a meat grinder. If you ever feel like the state of politics is at an unprecedented level of acrimony because Donald Trump writes some crazy tweets keep in mind the revolution and post-revolution era were violent, filled with score-settling, and hosted bitter political battles that sometimes ended in homicide. If you want to learn some more about the revolutionary war and the early republic I recommend checking out Valiant Ambition which is the story of the infamous traitor Benedict Arnold.
Aaron Burr also served in the Colonial military under the command of Benedict Arnold. And Burr, like Arnold, faced down treason, but not for shooting Hamilton or anything to do with Arnold's betrayals. Burr's treasonous acts were rooted in raising up a private military and attempting to carve out land for himself from Spain by plotting to attack Mexico.
After Aaron Burr shot Hamilton the public outcry was intense. Hamilton was a war hero that was well known and a favorite of George Washington. Burr was convinced that personal scandals in Hamilton's life, including an affair he had with a married woman, would mean that no one would miss him. That wasn't so.
Instead, Burr went from a contender for the Presidency to a political outcast. He barely escaped getting charged with murder and pulled every political string he could find to get out of it. Burr had no shortage of ambition though. Instead of fading away he moved west, formed a private military, and expected to capitalize on a war with Spain to take Mexico. That war never materialized though. And when President Thomas Jefferson learned a private military lead by Burr aimed to take land from the Spanish he issued a warrant for his arrest and insisted on a treason trial. Jefferson considered Burr's private army a huge threat and the plot to steal land for Burr a betrayal of the nascent United States.
Burr was acquitted, though. Treason carries an incredibly high bar constitutionally.
Chief Justice Mashall oversaw the trial of Burr and concluded the United States couldn't hit the evidentiary standard required. The prosecution relied heavily on an incriminating letter supposedly written by Burr. But in the course of proceedings, it turned out the letter was in the handwriting of a witness and not Burr's handwriting at all. The witness claimed that the original was destroyed and all he had was a copy he had written of it. Marshall then probably asked if anyone had any evidence of treason that wasn't a complete joke. And despite President Jefferson's tenacity to get a conviction, Mashall remained unpersuaded.
But in the course of the trial, Burr subpoenaed the sitting President and insisted that some of the President's papers would help exculpate him. Marshall concluded that a President could be subpoenaed during a criminal proceeding. And 200 years later that decision is cited in Mazars to lay the groundwork for the House to subpoena certain tax documents from President Trump.
Burr probably would have kept trying to become President if not for the extreme fallout of shooting Hamilton in a duel. Without that fatal shot, Burr wouldn't have been out raising an army, trying to carve out his own space in Mexico, and having to pioneer a subpoena to the President to help make his case that the state couldn't prove he committed treason. Burr's duel set off the butterfly effect where 200 years later the Supreme Court still cites to the rule about subpoenas and tells Donald Trump that he'll probably have to release his taxes if a trial court says he has to. So that's how Burr shooting Hamilton results in Trump probably having to release his taxes.