The United States has indicted a president previously — the leader of the Confederate States of America, Jefferson Davis.
The Davis case may offer certain analogs to the prosecutions of Donald Trump.
As the end of the Civil War neared, Davis, his family and many in his Cabinet fled the Confederate capital in Richmond, heading ultimately toward Florida to find a boat to a sanctuary out of the country.
Federal troops arrested Davis on May 10, 1865, and transported him to Fortress Monroe, on the Virginia coast. He would remain imprisoned for two years.
Many so-called Radical Republicans pushed hard for trial, conviction and hanging. To them, the case was simple — warring against the U.S.A. was high treason under the Constitution. President Andrew Johnson, successor to slain Abraham Lincoln, initially agreed. But other Republicans were hesitant. They feared a trial would only re-open the wounds of a tragically divided nation.
The pro-prosecution voices prevailed, and in May 1866, a year after his capture, the Confederate president was indicted for treason. It was a flamboyant indictment, claiming that Davis “being moved and seduced by the instigation of the devil … incited insurrection, rebellion and war against the United States of America….”
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Some abolitionists supported Davis’s release on bond
In May 1867, a year after the indictment, Davis finally earned release on bail bond guaranteed by a group of prominent Northerners including Cornelius Vanderbilt and the famous abolitionist Gerrit Smith. (Ironically, Gerrit Smith had helped finance John Brown’s 1859 raid on Harpers Ferry, and Davis — then a U.S. Senator — had urged that Smith be tried and hanged along with John Brown.)
Under the law in force at the time, two judges presided over the case — one was a Virginia federal district judge, John Underwood, and the other was U.S. Supreme Court Chief Justice Salmon Chase.
Underwood had been a Radical Republican politician and a zealous abolitionist. Chase was a former senator from Ohio and a former Secretary of the Treasury in Lincoln’s cabinet. He had been a leading anti-slavery voice in the Senate. Despite these credentials, Chase was in favor of leniency to former rebels.
Davis’ defense centered on the claim that the South’s secession was legal, thus he was a citizen and resident of another country (the Confederacy), and as such he owed no allegiance to the United States. Treason, the argument went, is a crime that someone who is both non-citizen and non-resident cannot commit.
A judge suggested the defense change its strategy
As the case proceeded to jury trial, Chief Justice Chase — presumably seeking to get rid of the case without agreeing to the secession defense — took an unusual step and suggested privately to Davis’s lawyer another defense, based on the concept of double jeopardy: that when southern leaders were stripped of their capacity to hold public office by the Fourteenth Amendment to the Constitution, Davis had already been “punished.”
Before trial, Davis’s defense team followed Chase’s suggestion and moved to quash the indictment based on the double jeopardy theory. The presiding judges took polar-opposite positions on the motion, with Chase agreeing (obviously), but with the other judge — Underwood — disagreeing because he considered the Fourteenth Amendment provision a civil disqualification rather than a criminal punishment. Thus, the presiding judges of the case split on the question, and a certificate of division was sent directly to the U.S. Supreme Court for resolution.
Before the Supreme Court issued its decision, President Johnson effectively ended the case of United States v. Jefferson Davis by issuing an order granting complete amnesty to all participants in the rebellion.
Will Martin is a retired attorney; an adjunct professor at Vanderbilt Law School; and the author of a Civil War novel, “Surrection.”
This article originally appeared on Nashville Tennessean: Trump defense team might learn from the prosecution of Jefferson Davis