Comparing Insurrectionists: Trump and Jefferson Davis

Predictably as a Republican, Donald Trump compared himself to Abraham Lincoln, the greatest of Republican presidents; usually in the context of claims that his policies have especially benefited African Americans. In a recent article in the Atlantic Monthly, historian Andrew Lang has shown the sharp contrast between honest Abe’s and Dishonest Donald’s approach to the electoral process that is fundamental to democracy. Unlike Trump’s denial of Joe Biden’s victory, Lincoln not only insisted that the secession of southern states that followed his 1860 victory was unconstitutional, he also refused to back calls to postpone the election of 1864, despite widespread fear within his party that this wartime election would result in his defeat. As Trump faces a second impeachment for his role in inciting the mob invasion of the US Capital on January 6, it seems fair to ask: if Trump is certainly not Lincoln, to whom can he be likened?

Given that the impeachment charge against him is that he fomented an insurrection against the United States, the most obvious answer is Confederate president Jefferson Davis. Davis was captured by Union forces and held by military authorities for two years while legal wrangling over his treason trial proceeded. I doubt if Special Forces will be surrounding Mar-a-Lago in quite this way, but there may be some wrangling over timing of his trial. At the time of Davis’s capture, Lincoln’s successor, Andrew Johnson expressed the general mood when he declared Davis to be the “head devil among the traitors, and he should be hung.” He went on to add that there ought to be a proper trial and that Davis should be fairly treated, although the opening comment was hardly consistent with the “innocent till proven guilty” principle. Insofar as it was magnanimous and compassionate, the statement reflected Johnson’s desire to take on the mantle of Lincoln who had laid out plans for the restoration of the union on relatively generous terms in the early months of his second term. Unity was the cry in 1865 as in 2021. At the same time, as a former Democrat from Tennessee, a border slave state and as an opponent of racial equality, Johnson’s initial harsh rhetoric to the effect that “treason must be made odious” has also been read as a political manoeuvre designed to ingratiate him with the Radical Republican faction. This group might be likened to Bernie Sanders, I suppose, in offering a policy agenda that inspires some core supporters while alarming the other side. Alternately, they could be seen as the group most ready to challenge their own President, and that is a small cabal in Trump’s America. By 1867, factionalism inside the Republican party had intensified with the Radicals breaking with Johnson over the direction of what was termed the “Reconstruction” of the union. Even before Donald Trump, whether to stick with a president or break with him has been a key party concern, and included some assessment of how influential he would be in the upcoming elections. At the moment, Trump has a far louder voice in the GOP than Johnson had.

The escalating schism between Johnson and his own party in Congress ultimately benefited Jefferson Davis. By 1867, the breach was so grave that Johnson became the first president to be impeached with Radicals alleging that his actions towards Cabinet members of their faction, most conspicuously Secretary of War Edwin Stanton, and more generally his non-cooperation with Congress over Reconstruction (Congress had passed legislation overturning his veto on key measures), amounted to a failure to fulfil his oath as president to faithfully execute the laws. The Senate impeachment of Johnson was taking shape just as the long-awaited trial of Jefferson Davis drew imminent. Like any trial of Donald Trump, people began to wonder if trying Davis was a good idea. After all, there would be an election in 1868.

When Davis was first arrested, there was a belief that he may have known and even authorised Lincoln’s assassination, but it soon became clear that this was not the case. Charging Davis with treason raised further problems; not least, those arising from the principle that trials should take place in the jurisdiction where the offence occurred, which in this case would mean trying Davis in the former Confederate capital of Richmond, Virginia. A jury there was likely to contain Confederate sympathisers and any juror would face local intimidation. Some feared that Davis might be acquitted or at least prove able to drag out proceedings by appeals against his conviction, and these fears grew as the months passed and he was held in military custody without civil charges against him. For Trump, the impeachment trial has a different dynamic. Currently, he is still a force in the GOP and only a handful of its senators will risk voting against him, and as long as he has a mass following across the nation, the numbers are not likely to grow. But if that changes, so will their opinions. In a now familiar pattern, as early as 1867, the political trends had changed direction and moderate Republicans were thinking of ways to end the process of reconstruction and return to some form of politics as usual; like today, this was presented as a desire for unity.

Moreover, the next presidential election, scheduled for November 1868, began to concentrate minds. For example, Chief Justice Salmon Chase, who harboured his own presidential ambitions, feared that if he became involved in Davis’s controversial trial, it would jeopardise his chances by deepening the sectional divide and making it more difficult for a Republican candidate to secure the kind of broad cross-sectional support that Whig candidates had gained in the past. Even Ulysses S. Grant, whom the Radicals had appointed as War Secretary after Johnson sacked Stanton, had quickly walked away from the divisive appointment because it endangered his own presidential hopes. Politicians, then as now, looked at issues and assessed which would deliver the larger share of voters in key states, and since that included some readmitted southern states, this would mean crafting a stance that appealed either to the African American freedmen who backed Republicans and were able to vote for the first time in 1868 or reaching out to white male voters. Already there were signs that white racism remained a potent weapon for opponents of radical Republicans, and the Democratic nominee Horatio Seymour had been an opponent of Lincoln while governor of New York. Accepting the Republican nomination, Grant signalled his bid for the centre ground by adopting the slogan: “Let us have peace.” To try the former Confederate president in the run-up to the election was therefore a worry for Republicans. An argument can be made that impeaching Trump will rally his white base without securing victory in his trial and so it would be better to focus on voting rights legislation that might ensure than non-whites could more readily participate in future elections. The counter argument is that treason should be made odious although few are publicly using the phrase.

Anxiety over the outcome of putting Jefferson Davis on trial helps to explain the decision initially to grant him bail and permit his release. Bail was set at $100,000, a considerable sum that would exceed a million in today’s money. However, ten men, including some unlikely figures, came up with the funds. They included wealthy abolitionist Gerrit Smith, who had previously used his wealth to support the fight against slavery, even to the extent of funding John Brown’s abortive raid, and similarly Horace Greeley, famed publisher of the New York Tribune. Asked to explain himself, Greeley was characteristically forthright. He likened northerners who hoped to establish an enduring Republican party on the basis of the “hate and wrath” engendered by the Civil War to people who would establish a colony on an iceberg just as it drifted into tropical seas. Perhaps more revealing of the forces at work was the support of railroad magnate Cornelius Vanderbilt who could readily see that sectional reconciliation would be good for business. By the summer of 1867, such men had concluded that Davis was no longer a serious threat to the republic and he could be released. Few would see Trump as finished, although he has lost his Twitter cannon, and Mitch McConnell and others will be brooding on how best to manage his malign presence. Certainly, one can expect some to argue that political energies would be better spent dealing with the economic fallout from the pandemic as well as the pandemic itself.

When Johnson was impeached in March 1868, Jefferson Davis had joined his family, who had already escaped to Canada, although he did return twice as required by legal authorities in Richmond who were still preparing his trial. Like good lawyers today, Davis’s counsel had already devised sophisticated constitutional arguments to defend their client from the charge of treason. Since his home state of Mississippi had seceded from the union before Davis himself became an official in the Confederacy, they claimed that he was technically no longer a citizen of the United States at the time of his alleged treason. By 1868 the 14th Amendment had been ratified and it contained penalties against all those who had held positions within the Confederacy permanently barring them from public office. The indictment of Davis referred to the oath he had sworn to protect the Constitution of the United States when he became a Congressman at the start of his long career. His lawyers argued the injustice of indicting their client on the basis of the US Constitution of 1837 when he first took such an oath when he was already punished by the amended Constitution of 1868. Already, we see that Trump’s defence already includes the idea that the punishment for impeachment is loss of office and he has already lost his bid to retain office via the election. It will certainly include legal arguments over intent. In speaking to his supporters, Trump was urging them to protest constitutionally. Those who interpreted his words as calling for insurrection misunderstood his intent and he cannot be held responsible for their actions; they alone are legally accountable for what they did. This will be said in earnest and with very straight faces.

In the end, the arguments prepared by Davis’s lawyers were never presented since in December 1868 as a lame-duck president, Andrew Johnson, having escaped removal from office by a single vote, issued a pardon that precluded Davis’s prosecution. Then, as now, there was little constitutional restraint on the President’s pardoning power. No longer awaiting trial, Davis travelled beyond Canada in an attempt to restore his devastated personal fortunes. Unlike Trump, Davis enjoyed a positive international reputation that ensured him a warm reception not only while he lived peaceably in Quebec but also when he pursued business opportunities in Great Britain and in the French Empire of Napoleon III. Press reports routinely stressed his noble gentlemanly bearing, and there were still powerful groups abroad who had sympathised with the Confederacy and in an age of colonial empires, white supremacy was a widespread doctrine. Foreshadowing the larger legend of the heroism of the Lost Cause, which Davis extolled in his speeches, the former president was commonly viewed as a man of principle stoically enduring his mistreatment at the hands of his enemies. The Trump supporters who carried the Confederate flag into the Capitol may be similarly ready to embrace a “big lie,” and provided lawsuits don’t prevent international travel, Trump himself may find a welcome in those autocratic countries whose leaders he has courted.

Already, Republican politicians are calculating the implications for their electoral future of standing for or against Trump. Already, the impulse to focus on restoration and unity is evident with voices warning that a prosecuted Trump will be revered as a martyr by his supporters, and that any legal pursuit will get in the way of Biden’s efforts to pass crucial relief measures at a time of national crisis. Ultimately, however, the Trump-Davis comparison exposes the risks that lie ahead. Until his death aged 81 in late 1889, Jefferson Davis strove to rebuild his fortune, but despite initial success, most of his projects floundered. But he also became a prominent voice in the much more successful effort to promote the “Lost Cause” narrative and affirm the doctrines of white supremacy. Trump’s age (74) and the myriad lawsuits pending against him may ensure that his post-presidential career is shorter than Davis’s twenty-four years, but deciding what to do with insurrectionists will be troubling America for a long time to come. Andrew Johnson had promised to make treason odious, but then had second thoughts; will Biden’s radicals induce him to stay the course?