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What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President

After the Civil War, Jefferson Davis, was to be tried for treason. Does the debacle hold lessons for the trials awaiting Donald Trump?

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.