When the House Jan. 6 committee recommended that former president Donald Trump face charges of insurrection, it was the first time in more than 150 years that a government entity urged such grave charges against a high government official.
The charge of insurrection is the most serious one levied by the committee, and it’s powerful because it could trigger Section 3 of the 14th Amendment — enacted after the Civil War to hinder former Confederates from serving in Congress — and bar Trump from public office. Democrats could use the amendment’s disqualification language to challenge Trump’s presidential candidacy, sparking an unprecedented legal process, though with no guarantee of success.
Yet history indicates that it’s unlikely the Justice Department will actually charge Trump with insurrection. The government has almost never pursued such charges — even against the Confederates who waged war against the United States. Although Confederate leaders were indicted on charges of treason, Abraham Lincoln and his top generals actually feared capturing, trying and hanging them because of how divisive treason trials would be. In the end, none of the leadership was executed and almost all of the Confederate upper echelon was rehabilitated, becoming university presidents, captains of industry and congressmen in the postwar era.
No one embodied this more than Confederate President Jefferson Davis, the most notorious insurrectionist in American history due to the more than 750,000 deaths caused by the Civil War. Even after the war, he never disowned the Confederate cause. In fact, as Gen. Robert E. Lee surrendered in April 1865, Davis fled the Confederate capital of Richmond, firing off telegrams urging Confederates to continue the war from Appalachia. “It is my purpose to maintain your cause with my whole heart and soul,” he said.
Davis fled toward Texas, where he planned to lead the war from the West, but the pursuing Wisconsin and Michigan cavalries intercepted him in Georgia in May 1865 and he became a “state prisoner” — a new category in American history — at Fort Monroe near Norfolk, Va. The government indicted him on a charge of treason and ultimately imprisoned him for two years without trial.
Many in the North reviled Davis — particularly after Lincoln’s assassination — and urged his execution. Lincoln’s successor, Andrew Johnson, detested the Confederate leadership and demanded: “Treason must be made odious.”
Yet, Northern public opinion was far from unanimous.
Prominent Northerners publicly protested the harsh treatment Davis received at Fort Monroe — which included being shackled for several days upon arrival — and their complaints gradually led to improvements in his condition. Military officials removed Davis’s fetters, and he eventually received a larger cell with more privacy and a fireplace; outdoor exercise privileges; and the right to receive gifts from friends. Finally, in spring 1866, his wife, Varina, joined Davis, and Maj. Gen. Nelson Miles, commander of Fort Monroe, gave them the run of the fort.
But even as his incarceration became more comfortable, Davis remained in legal limbo while Johnson’s Cabinet struggled to determine his fate. Hard-liners wanted to charge him with treason and try him before a military tribunal. But others, including Attorney General James Speed, said Davis should face a civilian jury in Richmond — the site of his crimes. In June 1866, impatient with the administration’s dithering, the House of Representatives weighed in, voting 105 to 19 to put Davis on trial for treason. Ultimately, Speed’s recommendation prevailed, and it led to the unraveling of the government’s prosecution.
The Johnson administration feared that a Southern jury might not only acquit Davis but also decide that secession was constitutionally legal — something that both Davis and his capable Irish-born, New York defense lawyer, Charles O’Conor, argued. The legality of succession was untested and its fate in a trial uncertain — particularly if Davis faced a jury of Virginians. The Johnson administration feared that such a ruling would disgrace the Union’s sacrifices, setting up the country for further sectional conflict and embarrassing the president.
With many Northerners clamoring for Davis’s prosecution but the Johnson administration fearful of the outcome of a trial, O’Conor and Davis ran out the clock. By spring 1867, roughly two years after Davis’s imprisonment, his legal team sought a writ of habeas corpus — demanding a trial or Davis’s release.
Amid continuing indecision, the Johnson administration still wasn’t ready to take Davis to trial and instead, on May 13, 1867, released him on $100,000 bail. Some of the richest men in the United States contributed the funds — most of them Northerners. Donors included Cornelius Vanderbilt, Horace Greeley and even abolitionists such as Gerrit Smith. They cited the injustice of keeping Davis imprisoned without trial and the need for national reconciliation.
Davis remained under indictment, but the day after the government released him, he journeyed to Canada with his wife to join the rest of his family in Montreal, where a community of Confederates had coalesced.
On Christmas Day 1868, in the spirit of national reunion, Johnson pardoned all Confederates, releasing Davis and his cohorts from all charges. For leading the forces of the Confederacy in war against the United States, Davis’s punishment was imprisonment for just over two years. Other onetime Confederate high officials received less — or even no — prison time, and many quickly rejoined Congress after the war.
Divided public opinion — between North and South, and within the North — contributed to Davis’s release and pardon. Johnson also had conflicting views; he wanted vengeance against the Confederate leadership but — in accordance with Lincoln’s wishes — was also eager to reintegrate the South back into the Union.
The following year, in April 1869, in a separate case, the Supreme Court decided that states did not have the constitutional right to secede.
Davis renounced violence but continued to champion the cause of the Confederacy and never repented for his leadership of its insurrection. He died in New Orleans in 1889 at the age of 81.
The lack of trials or consequences for so many leading Confederates enabled the rise of the Lost Cause mythology that permeated Southern culture for at least a century. This contributed to the reimposition of an antebellum sociopolitical regime in the South that had particularly disastrous effects for millions of recently freed African Americans, the vast majority of whom would continue to live under segregation in the former Confederacy for a century. But it also spared the country from the renewed sectional conflict and prolonged warfare that mass executions and long prison sentences for Southern leaders might have ignited.
Our conditions today are somewhat similar to those that spared Davis from harsher consequences. Americans are divided regarding Trump’s culpability for the Jan. 6 insurrection. Two-thirds of Americans say Trump bears at least “a little” responsibility for the Jan. 6 attack, according to an Economist/YouGov poll, but less than half, 42 percent, believe his actions were illegal.
And just as Americans were divided over Davis’s guilt by region, there is a huge rift over Trump’s guilt by political party. While almost 70 percent of Democrats say Trump has “a lot” of responsibility for the attack, only 8 percent of Republicans agree, with a majority of them believing Trump bears no responsibility.
It is risky in a polarized United States to enforce accountability for defeated enemies or opposition figures whom large swaths of the country still hold in high esteem. This sentiment compelled Johnson to choose lenient punishments for the Confederate leaders who were, after a period of years, warmly welcomed back into society. Yet, the aftermath of Johnson’s leniency exposed how pardon and mercy can also come with costs.
There were no easy choices in 1865, and the Biden administration now faces a similarly difficult calculation as it tries to balance justice and reconciliation at a time of escalated national fragility and political dysfunction.