Jefferson Davis Wasn’t Tried, Why It Matters In Trump Case

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR:  Now, he made history as the first U.S. president to be criminally indicted, but the charges against Donald Trump aren’t unprecedented. Our next guest argues that the failed conviction of a former American leader over 150 years ago could hold lessons for the trials awaiting Trump. Staff writer at “The New Yorker,” Jill Lepore, joins Michel Martin to discuss her latest article, “What happened when the U.S. failed to prosecute an insurrectionist ex-president.”

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MICHEL MARTIN, CONTRIBUTOR: Thanks, Christiane. Jill Lepore, thanks so much for talking with us.

JILL LEPORE, STAFF WRITER, “THE NEW YORKER”: Thank you for having me.

MARTIN: Your recent piece for “The New Yorker,” which is out now, outlines the trial of Jefferson Davis, the president of a Confederacy. It’s a very detailed and complicated story, which I think a lot of people — even people who are kind of Civil War buffs, probably don’t remember. So, the first question I have for you is, what made you take a look at it?

LEPORE: It’s really an overlooked moment in the history of the Civil War because the trial never took place. Davis, the president of the Confederacy, the commander-in-chief of the Confederate Army was arrested soon after the war ended in May of 1865. People thought he would be brought to trial for treason and war crimes right away, and that that would set the stage for a whole chain of events that many other Confederate generals and leaders would it be put on trial as well. His was to be the test case. And there was a whole concatenation of reasons why the trial never came off. It sorts of stretched on for four years before the thing finally resolved. And I think therefore, Civil War historians kind of set it aside as an irrelevancy. It assumes a new kind of resonance and relevance in this moment today because of the upcoming criminal trials of Donald Trump, right? So, Davis was not president of the United States. He’s president of the Confederacy, but really the only ex-president to be indicted in the United States.

MARTIN: The resonance of it, did that immediately jump out to you?

LEPORE: Yes. So, I am working on a book about the history of failed attempts to amend the constitution. So, I was looking at the Civil War and Reconstruction, and there are all these efforts to — proposed amendments to narrow the definition of treason, to make forming an armed insurrection to overthrow the U.S. government, unconstitutional, like, weird things, and I thought, why was this really necessary? And it all pointed to the attempt to successfully prosecute Davis. And the resonance really jumped out for me, mostly because we’re having this big constitutional argument in the United States today about Section 3 of the 14th Amendment, the so-called disqualification clause which provides it — people who were — took an oath to the constitution, but then engaged in insurrection against the United States were automatically ineligible for federal office, it was really written for Jefferson Davis. So, because that provision is being used now, or people are trying to use it to challenge Trump’s place on the ballot in states across the country, it seemed kind of urgent to me to, well, what actually happened to Jefferson Davis?

MARTIN: One of the things that was really striking was that there were several reasons why the trial never took place. And some of those were sort of philosophical, some of those were constitutional and some of those were tactical, perhaps the most important one was the question of what is treason? You know, what is the definition of treason? So, will you talk about that?

LEPORE: Yes. So, treason, you know, is defined in the constitution, and again, in an 1862 law. Treason is levying war against the United States or providing aid and comfort to its enemies. And so, it seemed, you know, the one news person, like, if we can’t convict this guy of treason, like, what is the definition of treason, right? It seems sort of obvious that this was the right charge. What was tricky about it, politically, was that Davis was going to argue, or it was anticipated, and his legal counsel suggested as much, that he couldn’t possibly have committed treason against the United States because when Mississippi seceded, he was in the U.S. Senate from Mississippi. When Mississippi seceded in 1861, he forfeited his U.S. citizenship. And so, during the whole of the Civil War, when he was commander in chief of the Confederate Army and president of the Confederacy, he was not a U.S. citizen. You can’t commit treason against a foreign country. And so, therefore, the charge made no sense. Whether that would have been a successful defense is one question. But from the U.S. government’s point of view, it would be a bad piece of political work to give him the opportunity to make that case, because essentially, he would be arguing that seceding from the union had been constitutional, which was really one of the things the Civil War was fought over was whether states have a right to simply secede. And he would have been able to use the opportunity of his trial. In fact, he did not want to be pardoned. He wanted to have the public stage to argue that he — that the secession had been constitutional. In much the same way you might say Trump is delighted to have the opportunity to argue that he won the 2020 election, that in some ways, these upcoming trials give him an opportunity to use a courtroom as a campaign platform.

MARTIN: The trial never actually happened, but a trial date was set. And here’s another thing that — another remarkable thing that I’m not sure a lot of people would know is that black men were actually seated as jurors, waiting to — you know, for this trial to proceed, which it didn’t. Set the scene for us, first of all, and tell us why you think that’s so important.

LEPORE: Yes. I do think this is the one overlooked explanation for why the trial never took place. I think the constitutional argument is compelling and surely played a very, very important role. But black men were pretty much uniformly denied the right to serve on juries. There are exceptions here and there with dire consequences. So, you know, there was this recent study that in Texas in 500 trials of white men accused of killing black men, tried before all white juries, every single one of those accused was found not guilty, right? So, just the absence of black men on trial juries — of enormous source of inequality.

MARTIN: Wait, wait, wait. You’re saying in one state alone? One state alone, that there were 500 trials where white men were accused of killing black men, black people?

LEPORE: Yes.

MARTIN: And none of them —

LEPORE: In 1865 and 1866. So, the trial was supposed to take place in Virginia — in Richmond, Virginia, which had been the capital of the Confederacy. White men are not really eligible to serve on juries in Richmond, Virginia. They’ve been disqualified for their participation in the rebellion against the United States. The judge in the case in Virginia, a guy named John Underwood, was a radical Republican, had been an abolitionist, was really committed to equal rights. Congress had endorsed the idea that black men should be able to serve on juries. This was part of the debate over the 14th and 15th Amendment and, you know, assuring — guaranteeing equal rights regardless of race. Underwood said, I’m going to put — he appointed black men to the grand jury conducting the investigation. It was a mixed-race jury. And he pledged that the trial jury would also be a mixture of black and white men. It was such an extraordinary thing and such a novelty. There’s actually a beautiful photograph taken of the 24 men and paneled to be the jury pool, 12 black men and 12 white men, the jury that would have tried Jefferson Davis. So, when you look at the correspondence between Davis’ lawyers and Davis and Davis’ wife or in the prosecution, there’s an enormous amount of anxiety about the idea that a jury that it will be half composed of black men could convict a white man to death, to be hanged that — so, there’s this just, whoa. So, it would be good to prosecute this guy for treason. On the other hand, we’ll have another war in our hands if we do. There’s tremendous anxiety about the risk of political violence of actually conducting the prosecution and very little concern for the risk of the failure to prosecute him, like what would that mean over the course of American history for the leader of the Confederate Army go away unscathed.

MARTIN: Davis had been arrested. I mean, the fact is he had been arrested. He had been in a military prison. He was presented for trial. So, how come the trial didn’t go forward?

LEPORE: So, there’s a lot of hesitancy about giving him a platform to make the argument for the constitutionality of secession. There’s the problem that the chief justice of the Supreme Court would have to sit at the trial itself, and he planned to run for president, in fact, did run for president in 1868. He needed white democratic voters. He didn’t want to sit at this trial. So, he — in fact, once the 14th Amendment was ratified in 1868, he conferred with the defense attorney for Davis and said, I have an idea. Here’s how you can get these charges dismissed. Say that Section 3 of the 14th Amendment, which has just been ratified, actually penalizes him because it prevents him from holding federal office again, and to try him for treason would amount in a kind of flimsy way to double jeopardy.

MARTIN: That was exactly the argument that the Senate Republican leader, Mitch McConnell, made in saying why he wasn’t going to vote against — vote for impeachment for Donald Trump. He said, well, because he’s going to go to a criminal trial.

LEPORE: Yes. And there too, as with the chief justice who gave the suggestion to the defense, McConnell was looking out for his own narrow political interests and not thinking about what would justice mean, how would the country right itself after this tremendous dislocation, 700,000 people died in the Civil War. The president of the Confederacy would never be held to account. Partly through the course of ambition the part of certain men. So, that — in a formal sense, the way he got off was by his defense, entering this motion regarding Section 3 of the 14th Amendment. Ultimately, the government just dropped the case. They decided not to pursue the case. And then Andrew Johnson issued a pardon. And there’s all this movement by 1870 or so for amnesty for anyone involved in the Confederacy, the country sort of just deciding, we need to move on.

MARTIN: Let’s fast forward to the current day. And what is it about this whole episode that strikes you as relevant to the current moment? And frankly, why you’re so concerned about it?

LEPORE: The Trump defense team in the Washington, D.C. felony case regarding efforts to overturn the election filed a motion saying, all the charges against Trump in this case should be dismissed because he enjoys presidential immunity. And the judge, Judge Chutkan in this case, just issued a ruling just last week in which she dismissed the motion saying, just because no president has actually been criminally convicted, it doesn’t mean it’s unconstitutional to do it. That doesn’t constitute a precedent, right? But one of the things that’s important about not setting aside the attempt to prosecute Jefferson Davis is — you know, I will say just personally, I’m a very conflict diverse person. I could see, after the Civil War, thinking, you know, if we prosecute this guy, it’s just going to be a mess, right? The country is going to be up in arms about it. Half the country is going to think he’s not guilty, that it was a political prosecution. Meanwhile, Andrew Johnson, the president, is subject to an impeachment. You know, there’s just going to be — we’ve been through so much suffering. The war was brutal. You know, we’re trying to reconstruct the country. Let’s just let this go and move past it. You see a little bit of that, you know, in the — in just how the country has metabolized the insurrection of January 6th, which, you know, we’re coming up on the three-year anniversary of. You just think about, you know, Republican members of Congress, day of, were outraged. You know, two weeks later, you know, there was just a tourism gone a little awry, you know. There’s narrow political motivations on the part of, I think, people have quite questionable ethics. But then there’s also the country’s desire to just move past it. I mean, this is one of the reasons people don’t want either Trump or Biden to run. People want to put this moment in American political history behind us. And somehow, I think that diminishes the resolution to try Trump in these many cases, people who value civic peace, it has to be done. It has to be done. And you see with Davis that it was really one of the first acts of abandoning the project of reconstruction and its promise for a fully multiracial democracy. This tremendous experiment that was hugely important. The project of fully guaranteeing equal rights for Americans, regardless of race. Part of the abandonment of that was saying, let’s just let Jeff Davis go, is kind of the first move of like, well, let’s let the 14th — let’s pretend we didn’t really ever actually ratify that. We won’t have — we won’t honor it as a Supreme Court. We won’t guarantee equal rights. We won’t fight against lynching. We won’t suppress the clan. We won’t — you know, all the things that unraveled that made it possible for reconstruction to be replaced by Jim Crow instead of by what reconstruction was meant to be, I think we have to pay attention to what it meant to say Jeff Davis can get off scot-free. What would it mean to say for Trump to not have been indicted? What would it mean for Congress to not have attempted to impeach him? Who knows what a jury will make of these charges? Surely, we do know this. It will be a mess. It will be a political — like, it will be painful. It will be anguished. Americans will be divided about it. It still has to be done.

MARTIN: You ask in the piece, 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 vindication and his supporters will question the legitimacy of any conviction. But you also say that failure to try him is an affront not only to democracy, but to decency. Now, those are very strong words. Like, why do you say that?

LEPORE: I say that as someone who would really rather these trials never take place. You know, when Trump was in office — I remember “The Washington Post” did a forum about whether Trump should be tried after he leaves office. And I wrote an opinion essay saying, you know, no, like it is a tradition that we are blessed to live in a country where we don’t prosecute and send to prison political leaders when a new party takes office. That’s not the American tradition. We have a very different — we accept the outcome of elections and we move on. And for whatever Trump had done in office, you know, it would be the best thing for the country to move on. This was before the insurrection, before the documents, the classified documents travesty. And, you know, I’ve absolutely come to see it is essential — as much as it appears to defy all precedent, it is essential to the rule of law. And it’s not a trivial matter to bring criminal charges against the president, but more is it a trivial matter to attempts to overthrow the results of a democratic election. And there has to be an attempted reckoning with it. The process has to proceed, because without it, you’re left with the kind of failure to reckon with the Confederacy essentially. It’s a redo of that moment. It’s very different scale, different political moments, but there was a cost to not holding the leaders of the Confederacy accountable for undertaking a regime to defend the institution of slavery. There was a cost and it was not borne equally, nor will the failure. If Trump manages to delay and delay and delay these trials, gets re-elected and pardons himself, there will be a tremendous cost in the United States, and it will not be borne equally.

MARTIN: Here’s what I have to ask, though. If you shared his politics, do you think you’d have a different view of it?

LEPORE: Yes. So, I don’t think that his policy agenda is on trial at any of these criminal trials. Whatever my own political positions are, are irrelevant here. What the act of convincing Trump supporters about the legitimacy of the trials has to be, you know, he can win. Like, it’s a trial. It’s not — there’s not a secret cabal of people that choose how these things will proceed. That at the end of the day, if you don’t have faith in trial by jury, what is there left in the world that we share that you trust to arbitrate truth? That is the one institution that Americans still have a tremendous amount of faith in. That’s my case there. I do think it’s essential that the prosecution be above and beyond fair, that there be no, like, by any means necessary we prosecute this guy. I mean, I think there’s different quality to the indictments in the different jurisdictions where Trump has been indicted. I think the D.C. case is really, really important. But I don’t think — for a second, as someone who is interested in seeing the prosecution proceed ever cut a corner. And I do think the degree to which in many realms in American life and politics and culture our standards have shifted to adjust for Trumpism, that has always been an error. I think the right thing, this steering the ship straight is to say, we have no choice. This is probably going to get him re-elected. We got to indict him anyway.

MARTIN: Jill Lepore, thanks so much for talking with us today.

LEPORE: Thank you so much.