Jefferson Davis Was Not Tried for Treason: America still suffers from that decision

 

The following is the beginning of a long article in the New Yorker magazine on December 4, 2023.  If you want to read more, send me an email at ngussman@yahoo.com and I will send you a copy.  

What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President After the Civil War, 

Jefferson Davis, the President of the Confederacy, was to be tried for treason. 

Does the debacle hold lessons for the trials awaiting Donald Trump? 

By Jill Lepore December 4, 2023

Jefferson Davis, the half-blind ex-President of the Confederate States of America, leaned on a cane as he hobbled into a federal courthouse in Richmond, Virginia. Only days before, a Chicago Tribune reporter, who’d met Davis on the boat ride to Richmond, had written that “his step is light and elastic.” But in court, facing trial for treason, Davis, fifty-eight, gave every appearance of being bent and broken. 

A reporter from Kentucky described him as “a gaunt and feeble-looking man,” wearing a soft black hat and a sober black suit, as if he were a corpse. He’d spent two years in a military prison. He wanted to be released. A good many Americans wanted him dead. “We’ll hang Jeff Davis from a sour-apple tree,” they sang to the tune of “John Brown’s Body.” Davis knew the courthouse well. Richmond had been the capital of the Confederacy and the courthouse its headquarters. 

The rebel President and his cabinet had used the courtroom as a war room, covering its walls with maps. He’d used the judge’s chambers as his Presidential office. He’d last left that room on the night of April 2, 1865, while Richmond fell. Two years later, when Davis doddered into that courtroom, many of the faces he saw were Black. Among the two hundred spectators, a quarter were Black freedmen. And then the grand jury filed in. 

Six of its eighteen members were Black, the first Black men to serve on a federal grand jury. Fields Cook, born a slave, was a Baptist minister. John Oliver, born free, had spent much of his life in Boston. George Lewis Seaton’s mother, Lucinda, had been enslaved at Mount Vernon. Cornelius Liggan Harris, a Black shoemaker, later recalled how, when he took his seat with the grand jury and eyed the defendant, “he looked on me and smiled.” 

Not many minutes later, Davis walked out a free man, released on bail. And not too many months after that the federal government’s case against him fell apart. There’s no real consensus about why. The explanation that Davis’s lawyer Charles O’Conor liked best had to do with Section 3 of the Fourteenth Amendment, known as the disqualification clause, which bars from federal office anyone who has ever taken an oath to uphold the Constitution of the United States and later “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” O’Conor argued that Section 3’s ban on holding office was a form of punishment and that to try Davis for treason would therefore amount to double jeopardy. It’s a different kind of jeopardy lately. 

In the aftermath of the insurrection at the Capitol on January 6, 2021, legal scholars, including leading conservatives, have argued that the clause disqualifies Donald Trump from running for President. Challenges calling for Trump’s name to be blocked from ballots have been filed in twenty-eight states. Eleven cases have been dismissed by courts or voluntarily withdrawn. The Supreme Court might have the final say. The American Presidency is draped in a red-white-and-blue cloak of impunity. Trump is the first President to have been impeached twice and the first ex-President to have been criminally indicted. 

If he’s convicted and sentenced and—unlikeliest of all—goes to prison, he will be the first in those dishonors, too. He faces four criminal trials, for a total of ninety-one felony charges. Thirty-four of those charges concern the alleged Stormy Daniels coverup, forty address Trump’s handling of classified documents containing national-defense information, and the remainder, divided between a federal case in Washington, D.C., and a state case in Georgia, relate to his efforts to overturn the 2020 Presidential election, including by inciting an armed insurrection to halt the certification of the Electoral College vote by a joint session of Congress. 

His very infamy is unprecedented. The insurrection at the Capitol cost seven lives. The Civil War cost seven hundred thousand. And yet Jefferson Davis was never held responsible for any of those deaths. His failed conviction leaves no trail. Still, it had consequences. If Davis had been tried and convicted, the cloak of Presidential impunity would be flimsier. Leniency for Davis also bolstered the cause of white supremacy. First elected to the Senate, from Mississippi, in 1848, Davis believed in slavery, states’ rights, and secession, three ideas in one. Every state had a right to secede, Davis insisted in his farewell address to the Senate, in 1861, and Mississippi had every reason to because “the theory that all men are created free and equal” had been “made the basis of an attack upon her social institutions,” meaning slavery. Weeks later, Davis became the President of the Confederacy. 

His Vice-President, Alexander Stephens, said that the cornerstone of the new government “rests, upon the great truth that the negro is not equal to the white man.” Trump could win his Lost Cause, too. Davis fled Richmond seven days before Robert E. Lee surrendered to Ulysses S. Grant at Appomattox. “I’m bound to oppose the escape of Jeff. Davis,” Abraham Lincoln reportedly told General William Tecumseh Sherman, “but if you could manage to have him slip out unbeknownst-like, I guess it wouldn’t hurt me much.” After Lincoln was shot and killed, on April 15th, his successor, Andrew Johnson, issued a proclamation charging that Lincoln’s assassination had been “incited, concerted, and procured by” Davis and offering a reward of a hundred thousand dollars for his arrest.