Supreme Court’s Civil War callback: Justice is denied with historic Trump delay

As important as Donald Trump’s conviction in Manhattan for corrupting the 2016 election is, justice demands that Trump be brought to trial in the most important of the three remaining cases against him: the federal indictment charging him with conspiracy to interfere with the lawful transfer of power after the last presidential election, culminating in the Jan. 6, 2021 attacks on the Capitol. But with only a few weeks left before Trump becomes the Republican presidential nominee, his trial for attempting to block Joe Biden’s 2020 election remains stalled due to the nation’s highest court.   

Sadly, history is repeating, or at least rhyming. It happened once before that the Supreme Court’s fingerprints, or at least those of one justice, were on the denial of justice in a case involving the leader of a failed attempt to overthrow our constitutional order. If Trump is not tried for his conduct leading up to the Jan. 6 attacks, there will be empty pages in American history books to rival the absence of any trial of Jefferson Davis for treason against the U.S.  

It is remarkable that neither Davis, the president of the Confederacy, nor any other Confederate was ever tried for a secession and Civil War that took 700,000 lives – more American lives lost than lost in all other American wars combined. The Union side lost some 335,000. 

While memories of that carnage were still raw, in May 1866 a federal grand jury sitting in Virginia indicted Davis on charges of treason. Delays then set in and a new federal jury again indicted Davis for treason in March of 1868. Six of the 18 grand jurors were Black, the first time Black people had ever been allowed to serve on a grand jury in the South.  

But on February 15, 1869, the prosecution walked into a Richmond, Virginia court and asked to have all charges against Davis and other leading Confederates dismissed. Instead of a jury verdict, all our history books record are the words “nolle prosequi,” for abandonment of the case. This left Henry Wirz, commandant of the dread Andersonville prison, as the only Confederate found guilty (and hanged) — and it was for war crimes in the treatment of prisoners, not for treason itself.

Of note, one Supreme Court justice helped to stymie the trial of Davis, just as some current justices today appear poised to delay or delete the federal election interference trial of Trump. At the time of Davis’s indictment, Chief Justice Salmon Chase was also assigned as the Circuit Judge for the federal district of Virginia and thus would have co-presided over Davis’s trial. The chief justice was also trying to secure the Democratic nomination for president at the same time. 

While novel legal issues needed to be resolved before Davis could be brought to trial, the case fell apart for reasons of politics rather than law.  Chase appears to have held private consultations with Davis’s legal team, a clear legal violation. Historian Robert Icenhauer-Ramirez quotes Chase writing to his friend Horace Greeley that “I desire to avoid all causes of irritation and controversy” and a treason trial of Davis could not be held “without irritation or controversy.” Icenhauer-Ramirez’s 2019 book concludes that the “political ambitions of Salmon Chase motivated him to have nothing to do with allowing Davis to be brought to trial.”  

Like Davis, Trump was indicted by a federal grand jury. The indictment was issued on August 1, 2023, and alleged Trump’s unlawful attempts to disrupt the official congressional count of electoral votes on Jan. 6.  

Although the trial was scheduled to begin on March 4 of this year, thanks to delays from the Supreme Court, it is now unlikely to start in time to reach a verdict before voters must decide the November presidential election. We are witnesses to historic justice delayed becoming justice denied.

Just as Chief Justice Chase helped delay and kill off any trial of Davis, the current Supreme Court is coming to Trump’s rescue.  It is not just Justice Samuel Alito and his two different Alito family homes that flew two different flags symbolizing support for the Jan. 6 attacks (it was my wife not me, he lamely defends). It is that a majority of the court appears to take seriously Trump’s claim that a former president enjoys nearly absolute immunity from criminal prosecution for his conduct in office. This claim has no basis in the Constitution’s text and flies in the face of the most basic of constitutional principles – that no one is above the law.  

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Both presiding trial judge Tanya Chutkan and a panel of appellate judges rejected Trump’s claim of immunity with dispatch. But the Supreme Court declined to accept special counsel Jack Smith’s December request to accept the case, waiting until February to hear Trump’s appeal. The court then took its time scheduling the case for oral argument, finally heard argument on April 25, and has yet to issue a decision. The justices have nearly doubled the 25 days it took them to overturn the Colorado Supreme Court’s decision applying the 14^th Amendment to keep Trump off the state’s ballot for being an insurrectionist. 

This delay already gives Trump a victory because the clock is running out on trying his January 6 case to a verdict before the election. If he wins in November, he will have the Justice Department dismiss the case outright. If he loses, we will see what kind of limited criminal prosecution of a former president the Supreme Court’s pending immunity decision will allow.

The absence from the annals of American law of a trial of Jefferson Davis or any other Confederate leader for treason means we are a nation with a haunting hole in our historical record. The Court appears to be making the same mistake twice, now by failing to bring to trial before November the only president who threatened to stay in power after losing an election. We, the people, deserve to know before casting our ballots whether a jury of his peers finds Trump innocent of 2020 election interference, or whether we might be re-electing a man who is guilty as charged of conspiring to obstruct the lawful transition of power in January 2021.