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 Tec*mseh 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.
Union troops captured Davis in Georgia on May 10th as he attempted to sneak out of a tent while wearing his wife’s shawl. He was conveyed to a military prison in Virginia. Captain Henry Wirz, who had served as the commandant of an infamous Confederate prison in Andersonville, Georgia, where thirteen thousand Union soldiers died of starvation and exposure, was captured three days before Davis. Tried before a military commission, Wirz was found guilty and hanged.
From the start, the prosecution of the former rebel President was more complicated. “I never cease to regret that Jeff. Davis was not shot at the time of his capture,” the dauntless Massachusetts senator Charles Sumner said. Sumner wanted Davis tried, like Wirz, before a military commission. “I am anxiously looking forward to Jefferson Davis’s Trial,” the Columbia law professor Francis Lieber wrote to Sumner at the close of Wirz’s trial. But “suppose he is not found guilty; is he not, in that case, completely restored to his citizenship, and will he not sit by your side again in the Senate? And be the Democratic candidate for the next presidency? I do not joke.”
“May I come back in? I’m sorry I said that thing about your breath.” Cartoon by Julia Suits Link copied
Lieber, who grew up in Prussia, had taught at South Carolina College for twenty years before moving to Columbia, in 1857. “Behold in me the symbol of civil war,” he once wrote. A son of his who fought for the Confederacy had been killed; another, who fought for the Union, had lost an arm. During the war, Lieber had prepared a set of rules of war that Lincoln issued as General Orders 100, better known as the Lieber Code. (It later formed the framework of the Geneva Convention.) Edwin Stanton, the Secretary of War, appointed Lieber to head the newly created Archive Office, charged with collecting Confederate records. Lieber fully expected to find evidence showing a “perfect connexion” between Davis and Lincoln’s assassination. That evidence was not forthcoming. Johnson vacillated, but by the end of 1865 he decided that he wanted Davis tried not for war crimes but for treason.
The Constitution defines treason as levying war against the United States or giving aid and comfort to its enemies. If Davis couldn’t be convicted of treason, the Philadelphia Inquirer remarked, “we may as well... expunge at once the word from our dictionaries.” Although Congress had modified the definition of treason in 1862, there remained ambiguity about what distinguished it from rebellion or insurrection. Lieber hoped that the prosecution would “stamp treason as treason,” but he was worried. “The whole Rebellion is beyond the Constitution,” he maintained. “The Constitution was not made for such a state of things.” In 1864, he quietly circulated to Congress a list of proposed constitutional amendments, including one that would end slavery, or what became the Thirteenth Amendment. (“Let us have no ‘slavery is dead,’” he wrote to Sumner. “It is not dead. Nothing is dead until it is killed.”) He also proposed an amendment guaranteeing equal rights regardless of race, or what became the Fourteenth Amendment. And he proposed an amendment clarifying the relationship between treason and rebellion: “It shall be a high crime directly to incite to armed resistance to the authority of the United States, or to establish or to join Societies or Combinations, secret or public, the object of which is to offer armed resistance to the authority of the United States, or to prepare for the same by collecting arms, organizing men, or otherwise.” Lieber’s Insurrection Amendment was never ratified. If it had been, Americans would live in a very different country.
Can Donald Trump get a fair trial? Is trying Trump the best thing for the nation? Is the possibility of acquittal worth the risk? Every trial on charges related to the insurrection gives him a stage for making the case that he won the 2020 election, any acquittal will be taken as a vindication, and his supporters will question the legitimacy of any conviction. But failure to try him is an affront not only to democracy but to decency.
In 1865, plenty of Americans wanted Davis tried without delay. A rope-maker from Illinois wrote to Johnson, volunteering to make the rope to hang him. But U.S. Attorney General James Speed, belying his name, wanted to slow things down. Americans were still mourning Lincoln and all that they had lost in the war. Speed, cautious by nature, wanted temperatures to cool. Many feared that bringing Davis to trial risked handing a rather stunning victory to the defeated Confederacy, as the legal historian Cynthia Nicoletti argued in a brilliant and exhaustively researched 2017 book, “Secession on Trial: The Treason Prosecution of Jefferson Davis.” To a charge of treason, Davis was expected to respond that he had forfeited his American citizenship when Mississippi seceded from the United States, and you cannot commit treason against another country. According to Nicoletti, the worry that an acquittal would have established the constitutionality of secession meant that interest in prosecuting Davis simply evaporated. There are other views. In a 2019 book, “Treason on Trial: The United States v. Jefferson Davis,” Robert Icenhauer-Ramirez, a former criminal-defense attorney, wrote that the prosecution unravelled because the men involved in it had towering political ambitions and were unwilling to risk losing so prominent a case. Neither explanation covers all the facts.
