Senate's power to expel in the absence of an indictment.
Resolution introduced: Nov. 27, 1807
Referred to committee: Nov. 27, 1807
Committee report: Dec 31, 1807
Senate vote: April 9, 1808
Result: Not Expelled
John Smith, Ohio Democratic Republican and strong supporter of President Thomas Jefferson, ended his Senate career implicated in the messy frontier political scandal that erupted when Aaron Burr concocted a plot to lead the western territories in rebellion. Although the degree of his involvement remained murky, Smith, a champion of frontier interests who lobbied intensely for internal improvements for the West, was accused of participating in the scheme. A United States senator since 1803, Smith would have been a valuable collaborator for Burr, because of his extensive political contacts and his business as a contractor supplying provisions for the army. During an 1805 visit to Ohio, when he stayed with John Smith, Burr expressed interest in promoting a canal around the Falls of the Ohio River and leading a military expedition against the Spanish in Florida if the United States declared war on Spain. Again, in September 1806, Burr visited Smith for several days, claiming on that occasion that he was escorting a group of settlers to his lands in the Louisiana Territory. Smith later contended that he had believed Burr's explanations of the reasons for his visits to Ohio.
In December 1806, however, President Jefferson issued an alert, charging that Burr's actual purpose was an invasion of Mexico and calling on the western states to help suppress the scheme. Smith responded patriotically by financing weapons to be used by the militia who were preparing to defend against the Burr expedition and even delivered the arms himself to New Orleans. As a result, he did not arrive in Washington until January 1807, missing much of the Senate session. This apparent dereliction of duty led the Ohio legislature to request his resignation. Indignant, Smith refused.
While in the Louisiana Territory on business in the summer of 1807, Smith learned that he had been indicted by a court in Richmond, Virginia, on charges of participating in Burr's conspiracy. In September 1807, after first traveling to West Florida, Smith surrendered to the governor of the Mississippi Territory, who sent him to Richmond for trial. Before Smith could reach Virginia, however, he learned that the court there had acquitted Aaron Burr in August 1807, on the grounds that some evidence was inadmissible. The prosecutor, therefore, had also dropped the charges against the Ohio senator. Smith then journeyed to Washington to attend the Senate session.
Statement of the Case
On November 27, 1807, a resolution in the Senate requested that a committee be appointed to investigate whether Smith's association with Burr rendered him ineligible to retain his seat. Smith claimed to welcome the investigation as a means to establish his innocence. On December 31, the committee, chaired by John Quincy Adams (F-MA), returned a report unfavorable to Smith, stating, "The conspiracy of Aaron Burr and his associates against the peace, union, and liberties of these States is of such a character, and . . . its existence is established by such a mass of concurring and mutually corroborative testimony, that it is incompatible, not only with the honor and privileges of this House, but with the deepest interests of this nation, that any person engaged in it should be permitted to hold a seat in the Senate of the United States." Still, the committee continued, "whether the facts, [as shown by the evidence collected by the committee] are sufficient to substantiate the participation of Mr. Smith in that conspiracy or not will remain for the Senate to decide." Those who believed in Smith's complicity contended that he must have known far more than he admitted about Burr's plans.
Since the bills of indictment against Smith had been identical to those against Burr, whose acquittal rested more on a legal technicality than on proof of his innocence, the committee recommended that John Smith, as an accomplice to the conspiracy, should be expelled from the Senate.
Response of the Senate
The full Senate discussed the matter from January 13 to 20, 1808, and again in mid-March before agreeing to Smith's request to allow him more time to gather evidence and postponing debate until April 1. On that date, John Smith, represented on the floor by prominent Baltimore attorneys Francis Scott Key and Robert Goodloe Harper, faced a full Senate debate on a resolution to expel him for participation in the Burr conspiracy. During its consideration of the case, the Senate called and examined witnesses as well as considering a large number of depositions.
Although Smith's attorneys sought to explain away his moves as those of a naive but hospitable patriot, the accuracy of the charges against Smith was not the only issue. Rather, much of the debate centered on previous expulsion cases before the Senate--those of William Blount of Tennessee (See Case 5) and Humphrey Marshall of Kentucky (See Case 3). In the case of Marshall, the Senate dismissed charges because they were not supported by formal indictments. Now, in the case of John Smith, the Senate reversed its earlier position and asserted that the body could expel a member, even in the absence of legal prosecution, on the theory that the expulsion authority represented a political power to be exercised when necessary to preserve "the purity of the Senate." Smith's lawyers, Key and Harper, contended that the Senate had no jurisdiction "to discharge the duties of a court" simply because the appropriate court had neglected such duties. John Pope (D-KY) dismissed this argument, asserting that a person who accepts membership in a legislative body becomes to some extent responsible to that institution for his conduct.
Despite the weight of circumstantial evidence that John Smith had possessed detailed information about the true purpose of Burr's expedition, more than a third of the senators agreed with the view of William B. Giles (D-VA). Giles maintained that Smith had no reason to question Burr's political integrity until the arrival of President Jefferson's proclamation denouncing the planned rebellion, after which he had moved promptly to help prevent it. These senators apparently accepted the possibility that Smith's only crime was a weak perception of human character. By a vote of 19 yeas to 10 nays, only one short of the two-thirds required, the Senate on April 9, 1808, failed to adopt the resolution of expulsion.
Through the debate in the Smith case, the Senate broadened and clarified its definitions of senatorial jurisdiction in expulsion cases. Smith's attorneys argued that "the power of expulsion is confined to acts done in the presence of the Senate" or that, in indictable cases, the Senate "must wait for an indictment before it can expel." The Senate rejected both of these arguments on the premise that the Constitution, either in letter or in spirit, imposed no limitation upon the authority of the Senate in the conduct of its own affairs. In addition, John Smith, by insisting on an investigation, had reinforced the legitimacy of the Senate role, for, as John Quincy Adams pointed out, "Acquittal implies the jurisdiction of the tribunal as much as conviction."
Smith escaped the disgrace of expulsion, but in Ohio and Washington sentiment against him ran high. Aware that he could not expect any future political support, Smith on April 25, 1808, resigned his seat in a letter to the governor of Ohio, rather than communicating directly with the president of the Senate. In a lengthy justification of his behavior, Smith explained that he chose the unusual resignation method because he could express his political sentiments and motivations more freely in a letter than in the formal atmosphere of the Senate chamber. Complaining that he had suffered political betrayal by President Jefferson and his party, he urged "every man [to] cast off the vassalage of party." Smith returned to Ohio, but his misadventures destroyed him both politically and financially. Forced into bankruptcy, he moved to Louisiana Territory, where he lived in poverty, carrying out a few duties as a Baptist clergyman until his death in 1824.
Source: U.S. Senate Historical Office, United States Senate Election, Expulsion and Censure Cases:1793-1990 (Washington: Government Printing Office, 1995), pp. 18-21.