Jill Lepore wrote earlier this month:

Jefferson Davis, the half-blind ex-President of the Confederate States of America, leaned on a cane as he hobbled into a federal courthouse in Richmond, Virginia. Only days before, a Chicago Tribune reporter, who’d met Davis on the boat ride to Richmond, had written that “his step is light and elastic.” But in court, facing trial for treason, Davis, fifty-eight, gave every appearance of being bent and broken. A reporter from Kentucky described him as “a gaunt and feeble-looking man,” wearing a soft black hat and a sober black suit, as if he were a corpse. He’d spent two years in a military prison. He wanted to be released. A good many Americans wanted him dead. “We’ll hang Jeff Davis from a sour-apple tree,” they sang to the tune of “John Brown’s Body.”

Davis knew the courthouse well. Richmond had been the capital of the Confederacy and the courthouse its headquarters. The rebel President and his cabinet had used the courtroom as a war room, covering its walls with maps. He’d used the judge’s chambers as his Presidential office. He’d last left that room on the night of April 2, 1865, while Richmond fell.

Two years later, when Davis doddered into that courtroom, many of the faces he saw were Black. Among the two hundred spectators, a quarter were Black freedmen. And then the grand jury filed in. Six of its eighteen members were Black, the first Black men to serve on a federal grand jury. Fields Cook, born a slave, was a Baptist minister. John Oliver, born free, had spent much of his life in Boston. George Lewis Seaton’s mother, Lucinda, had been enslaved at Mount Vernon. Cornelius Liggan Harris, a Black shoemaker, later recalled how, when he took his seat with the grand jury and eyed the defendant, “he looked on me and smiled.”

Not many minutes later, Davis walked out a free man, released on bail. And not too many months after that the federal government’s case against him fell apart. 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. It’s a different kind of jeopardy lately. In the aftermath of the insurrection at the Capitol on January 6, 2021, legal scholars, including leading conservatives, have argued that the clause disqualifies Donald Trump from running for President. Challenges calling for Trump’s name to be blocked from ballots have been filed in twenty-eight states. Eleven cases have been dismissed by courts or voluntarily withdrawn. The Supreme Court might have the final say. [Continue reading…]