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Risky Business

Last week marked the bicentennial of the last time Americans thought a vice president posed a constitutional threat to the United States (no, the merely peculative Spiro Agnew does not count): On June 24, 1807, a grand jury returned an indictment for treason against Aaron Burr, who had till 1805 served as vice president under Thomas Jefferson. Current Vice President Dick Cheney's evident opinion, reported last week, that his office need not obey laws applying to the executive branch because the vice president presides over the Senate, reminds us that more than this coincidence of dates unites him with his predecessor. Burr held Cheney-like views of the relation between business and public life, and he had a gift for alerting his fellow Americans to constitutional anomalies.

Unlike most of the Constitution's framers, Burr thought of business and government as compatible pursuits. Alexander Hamilton, whom Burr would kill in a duel, embodied their generation's virtues: As secretary of the Treasury, Hamilton made discreet payments to a Mr. Reynolds. When questions arose about these funds, Hamilton confessed he had been sleeping with Mrs. Reynolds and had to pay her husband hush money. Hamilton could more easily admit philandering than endure suspicion of bribery; he had to maintain his reputation for keeping public and private business separate. By contrast, when Burr became vice president in 1801, he thought he had gained an asset in his career as a lawyer, and figured he might "go into Courts with the Weight %amp% influence of office %amp% thus retail out these." A friend dissuaded him from this unseemly strategy, but it suggests Burr had a more modern cast of mind than his peers. Were Burr vice president today, he would surely, like Cheney, set policy in conference with his former business associates.

And like Cheney, Burr would keep it secret. "Things written remain," he admonished a clerk. Burr concluded letters by urging secrecy: "Say nothing of this," and "You %amp% I should not appear to act in concert," he wrote. Although Burr himself had no compunction about seeking personal advancement through the offices of the American republic, he knew his contemporaries would have looked dimly on his pursuit of personal happiness through public life.

Burr exhibited little patience with or even interest in propriety. As he himself best put it, public office served him for "fun and honor %amp% profit," all together. Which led him, in a most Cheney-like fashion, to embark on ambitious projects, believing beyond hope that his opposition were in their last throes. As Hamilton said of Burr, "He is sanguine enough to hope every thing--daring enough to attempt every thing." Andrew Jackson said, "Burr is as far from a fool as I ever saw, and yet he is as easily fooled as any man I ever knew."

There the comparison must end. The vice presidency's merely constitutional duties bored Burr, who yearned for action and nursed grand visions of empire, and who conspired--or not; he was acquitted because the jury found him "unproved to be guilty"--to take over the western states and parts of Mexico, creating an empire for himself to rule.

Even before the alleged conspiracy, Burr seemed dangerous, and when he nearly became president his peers amended the Constitution to stop anything like it from happening again. The original Constitution asked electors to cast two votes for president. If someone got a majority of the electoral college, he won; failing that, the House of Representatives picked a president from the top vote-getters. But "[i]n every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President." Nobody actually voted anyone for vice president. In 1800, the Republicans meant Burr to become vice president, so they voted Thomas Jefferson for president and Aaron Burr for president. Burr and Jefferson got equal votes, and Congress had to wrangle over them, with Federalists threatening to give Burr the top office.

Thus the Twelfth Amendment, which asked electors to vote separately for president and for vice president. Never again would someone so dangerous as Burr get close to the presidency, because someone ambitious would never run for vice president. Parties chose as vice presidential candidates men who balanced the presidential ticket, or who gratified a party faction. The office was useless--Congress had provided by statute for presidential succession, and the Senate could easily choose its own presiding officer--but apparently harmless except upon presidential death.

Only recently have changes in the vice presidency made it potentially what it was in Burr's time--"that unnecessary %amp% dangerous Officer the Vice President," as George Mason said. Dwight Eisenhower wrote in 1963 that he believed his vice president, Richard Nixon, "not being technically in the Executive Branch of government, was not subject to presidential orders." Yet Eisenhower had entrusted Nixon with vital executive duties: Someone not accountable to the president was executing the laws of the United States.

If Eisenhower was interpreting the Constitution correctly, Congress contributed to this Constitutional anomaly: the 1949 National Security Act made the vice president a member of the president's National Security Council, on which no other non-executive officer sat. John Kennedy made the anomaly worse: He put his vice president in the Executive Office Building--which you might think would house executive offices.

Until now this anomaly hasn't seemed to matter. Nor has the otherwise Burrish Cheney (who also, though non-fatally, shot someone while in office) embarked on so apparently treasonable an adventure as Burr's effort to make himself emperor of distant lands. But if it should turn out that Cheney's secrecy does hide something monstrous, he's already indicated how, through constitutional loophole, he will shield the president. If Americans want a break from the fruitless argument over Worst President Ever, we might consider whether Cheney is giving Burr a run for his money as Most Dangerous Vice President.

By Eric Rauchway