Civil War Confederate President Wasn’t Tried, Why It Matters In Trump Case | Amanpour and Company

now he made history as the first US 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 leor joins Michelle Martin to discuss her latest article what happened when the US failed to prosecute an insurrectionist ex-president thanks Christian gillor thanks so much for talking with us thank you for having me your recent piece for the New Yorker which is out now outlines the trial of Jefferson Davis the president of the Confederacy it's it's a very detailed and um 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 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 um 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 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 sort of stretched on for four years before the thing finally resolved um and I think therefore Civil War historians kind of set it aside as 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 the Resonance of it did that immediately jump out to you yes so I I'm 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 um to make forming and armed Insurrection to overthrow the US government uh unconstitutional like we things that I thought why was this really necessary and it all pointed to the attempt to successfully prosecute Davis and the re the resonance really jumped out for me mostly because we're having this big constitutional argument in the United States today about section three of the 14th Amendment the so-called disqualification Clause uh which provides that um people who were uh 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 um so because that provision is being used now or people are trying to use it to challenge Trump's uh place on the ballot in States across the country it seemed kind of urgent to me to what actually happened to Jefferson 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 what is the definition of treason so will you talk about that yeah 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 one newsp said like if we can't convict this guy of treason like what is the definition of treason right um it seems sort of obvious that uh this was the right charge um well what was tricky about it politically was that Davis was going to argue it was anticipated and his legal council suggested as much that he couldn't possibly have committed treason against the United States because when Mississippi seceded he was in the US Senate from Mississippi when Mississippi seceded in 1861 he forfeited his US citizenship and so that 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 US citizen you can't commit treason against a for country and so therefore the charge made no sense whether that would have been a successful defense is one question but from the US 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 did not want to be pardoned he wanted to have the public stage to argue that that he that the 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 that in some ways these uh upcoming trials give him an opportunity to use a courtroom as a as a campaign platform the trial never actually happened but a trial date was set and here's another thing that another remarkable thing that I 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 yeah 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 pretty much uniformally 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 on on trial jurries is of of enormous source of of inequality 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 and 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 uh in the Rebellion against the United States the judge in the case in Virginia a guy named John Underwood was a a radical radical republican had been an abolitionist was really committed to equal rights um 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 gonna put um he appointed black men to the grand jury conducting the investigation it was a mixed race jury and he pledged that the um the the trial jury would ALS 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 imp panel 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's lawyers and Davis and Davis's wife or in the prosecution there's an enormous amount of anxiety about the idea 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 oh whoa so would be good to prosecute this guy for treason on the other hand we'll have another war in our hands if we do tremendous anxiety about the the the 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 uh over the course of American history for the leader of the Confederate Army to go away unscathed 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 so there's a lot of hesitancy about giving him a platform to make the argument for this constitutional secession there's the problem that the Chief Justice of the Supreme Court would have to sit uh 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 the defense attorney for Davis and said I have an idea here's how you can get these charges dismissed say that section three 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 that was exactly the argument that the Senate Republican leader Mitch McConnell made in 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 yeah and there too as with the Chief Justice who gave the suggestion to the defense McConnell was looking out for his own narrow political interest and and not thinking about what what would justice mean how would the country write 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 the the course of ambition on the part of of of certain men so that in in a formal sense the way he got off was by his defense entering this motion regarding section three of the 14th Amendment ultim the government just dropped the case they decided not to pursue the case and then Andrew Johnson uh 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 we need to move on let's fast forward to the current day and what is it about this whole episode that that strikes you as relevant to the current moment and and frankly why you're so concerned about it the Trump defense team in the Washington DC felony 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 uh judge chuin in this case just issued a ruling just last week in which he dismissed the motion saying just because no president has actually been criminally convicted 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 H you know if we prosecute this guy it's just going to be a mess right the country's going to be up in arms about it half the country is goingon 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 just going to be we've been through so much suffering the war was brutal you know trying to reconstruct the country let's just let this go and and and move past it do you see a little bit of that you know in the in just how the country has metabolized the Insurrection of January 6 which you know we're coming up on the three-year anniversary of if you just think about you know Republican members of Congress day of were outraged you know two weeks later you know it was just a tourism gone a little a raw you know there's narrow political motivations on the part of I think uh people of quite questionable ethics um but then there's also the country's desire to just move 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 uh Trump u in these in these in these many cases people who who value Civic peace it has to be done it it has to be done and you see what Davis that it was really one of the first acts of abandoning the project of reconstruction and its promise for a fully multi-racial democracy this tremendous experiment uh that that was hugely important um the the the project of fully guaranteeing equal rights for American regardless of Race part of the abandonment of that was saying ah let's just let Jeff Davis go it kind of the first move of like oh well let's let's let the 14th amend 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 we won't guarantee equal rights we won't uh fight against lynching we won't suppress the clan we won't you know all the things that unravel that made it possible for reconstruction to be replaced by Jim Crow um 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 scott free what would it mean to say for for Trump to not have been indicted what would it mean for Congress to not have attempted to impeach him yeah 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 Happ to be done 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 a quid 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 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 now those are very strong words like why do you say that 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 I wrote an opinion essay saying you know no like it is a tradition that we we we 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 that's not the American tradition we have a very different we accept the outcome of Elections and and we move on and for whatever Trump had done in office you know would be the best thing for the country to move on this was before the Insurrection um before the documents the classified documents uh travesty and you know I I've absolutely come to see it is essential uh as much as it appears to defy all precedent uh it is essential to the rule of law and it's not a it's not a trivial matter to bring uh criminal charges against a president but nor is it a trivial matter to uh attempt 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 conf the Confederacy essentially it's it's it's a 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 there was a cost in it was not borne equally nor will the failure uh if if Trump manages to delay and delay and delay this Tri these trials gets reelected and pardons himself there will be a tremendous cost in the United States and it will not be born equally here's what I have to ask though if you shared his politics you think you'd have a different view of it yeah 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 relevant 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 uh there's not a a secret cabal of people that choose how these things will proceed um that at the end of the day the if if you don't have faith in trial by jury what is there left uh 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 I do think it's essential that the prosecution be above and beyond fair that 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 in the in the different jurisdictions where Trump has been indicted I think the DC case is really really important um but I don't think you you you for a second as someone who is interested in 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 I think the right thing this steering the the the ship straight is to say we have no choice this this is probably going to get him re-elected we gota we got to endite them anyway Jilla por thanks so much for talking with us today thank you so [Music] [Music] much

Channel: Amanpour and Company

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Keywords: interview, CNN, PBS, Christiane Amanpour, world news, news anchor, news show, news, public affairs, late-night TV, journalist, Chief International Correspondent, Trump, trials, Confederacy

Id: ZXVOIab3ek8

Length: 18min 58sec (1138 seconds)

Published: Wed Dec 06 2023