Confederate “Heritage” Month 2024, April 4: Presidential Impunity from Jefferson Davis to Donald Trump

Jefferson Davis was never convicted of treason to the United States despite having served as President of the fully illegitimate Confederate States of America.

Most of us prior to the January 6, 2021 insurrectionist attack on the US Capitol staged by then-still-President Donald Trump hadn’t paid much attention to the Insurrection Clause of the 14^th Amendment, also known as the Disqualification Clause. It reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

This was written for Jefferson Davis and others like him. After he was caught by Union forces trying to slip out of a Confederate military camp disguised as a woman, he spent two years in a military prison awaiting trial. But when he finally appeared before a federal court, he was released on bail. The government prosecuted him for treason, but he was not convicted.

Jill Lapore writes:

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.¹

Lapore makes use of the contemporary context to explain how outrageous it is that Davis was eventually never held accountable for his monumental treason: “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.”

The prosecution basically disintegrated under the Administration of Andrew Johnson, the “Union Democrat” that Lincoln had selected as his Vice Presidential running mate in 1864. Lapore notes a sad irony in the nature of Davis’ legal situation:

Meanwhile [by 1867-8], any momentum there ever was to prosecute Davis withered as congressional Republicans pursued Reconstruction, a plan that involved treating the former Confederacy as a conquered nation. If a trial were held and Davis argued that he could not have committed treason because, after Mississippi seceded, he was no longer a U.S. citizen, the government would have to argue that he had always been a U.S. citizen. But if he had been a U.S. citizen during the war, then the Confederacy had not been a foreign belligerent, and the U.S. could not justify its occupation of the region as a “conquered province.” Under these circumstances, Radical Republicans became some of Davis’s most ardent defenders. Gerrit Smith, a fiery abolitionist, helped post bail, and that fiercest of congressional radicals, Thaddeus Stevens, secretly offered to represent Davis.

It wasn’t perhaps such a thin excuse as “look-forward, not-backward” when it came to crimes committed by the Cheney-Bush Administration. But it seems pretty flimsy.

In a genuinely disgraceful decision, President Johnson issued a pardon on Christmas Day 1868 for everyone who had taken part in the Confederate insurrection. Davis walked free with the rest of them.

Senator and soon-to-be-traitor Jeffferson Davis (1859)

Today’s Supreme Court ruled earlier this year on a case (Trump v. Anderson) over whether the State of Colorado could exclude Donald Trump from election ballot under the Insurrection Clause:

On Monday [March 4], the Supreme Court unanimously reversed a Colorado Supreme Court decision removing Donald Trump from the ballot because of his engagement in an insurrection on Jan. 6. But that top-line holding is where the unanimity ended because five conservative justices just couldn’t help themselves: They went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office. As the three liberal justices pointed out, in a separate opinion that glows white-hot with indignation, the majority’s overreach “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” They are, of course, correct. After this decision, it is impossible to imagine a federal candidate, up to and including the president, ever being disqualified from assuming office because of their participation in an insurrection.² [my emphasis in bold]

According to this bizarre 5-4 ruling, the Insurrection Clause – a part of the US Constitution – has always been null and void because they Congress never passed the kind of very specific law that a rightwing Supreme Court majority in 2024 decided was necessary.

As Mark Joseph Stern observed:

[I]t it is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals [in their dissent in the case] wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

1. Lapore, Jill (2023): The Mistrial: When the U.S. prepared to prosecute an insurrectionist ex-President. New Yorker 12/11/2023, 14-19.

2. Stern, Mark Joseph (2024): The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster. Slate 03/04/2024. <https://slate.com/news-and-politics/2024/03/supreme-court-trump-colorado-ballot-disaster.html> (Accessed: 2024-29-03).