We Didn't Drive Old Dixie Down Deep Enough... And Now We Have Trump Threatening Our National Unity

Sen Charles Sumner regretted Jeff Davis wasn't shot; he'd feel the same about Trump

In the late ‘60s, I was running the student activities program at my university and had spent a couple of years focusing on the most amazing concert program anywhere in America— from The Doors, Jim Hendrix, Janis Joplin, The Who, Jefferson Airplane to the Grateful Dead, Otis Redding, Temptations, Pink Floyd, Joni Mitchell… you get the picture. But I was turning over my responsibilities to underclassmen as I was getting ready to graduate. The new concert committee was very excited about a Canadian band— The Band (Robbie Robertson, Rick Danko, Levon Helm, Richard Manuel and Garth Hudson), formerly Ronnie Hawkins’, then Bob Dylan’s, backup band. Ironically, a decade later I photographed their last concert (The Last Waltz) in San Francisco. But the Stony Brook gig was giving me a hard time.

I didn’t mention it to anyone but I had a sour feeling about the group. They were one of the hippest bands around and everyone loved them but… there was this one song. Levon Helm, who eventually sang it, was a Confederate apologist from Arkansas and he got Robbie Robertson, a Canadian who didn’t know any better, to write a song, The Night They Drove Old Dixie Down that turned my stomach. In has autobiography, Helm boasted, “I remember taking [Robertson] to the library so he could research the history and geography of the era and make General Robert E. Lee come out with all due respect.”

Due respect? Robert E. Lee was a vile racist and traitor who should have had a quick military trial and then been put up against a wall and shot. Instead he wasn’t arrested or punished— other than losing his right to vote (ironically, he spent the rest of his life campaigning against Blacks being allowed to vote)— and was allowed to burnish his reputation and maintain a heroic stature among Southern traitors who imagined they were somehow patriots instead of scumbags. I’m sure you’ve read about “The Lost Cause,” a profoundly harmful ideology that distorts historical narratives and promotes racism— and, today, MAGA— by falsely portraying the Confederacy as a noble and heroic institution that fought for noble causes, such as states' rights and self-determination, instead of just preserving slavery. The Lost Cause has whitewashed the Confederacy's history, obscuring the true causes of the Civil War and the horrors of slavery and has been used to perpetuate racial segregation and discrimination while romanticizing the antebellum South and fostering resentment towards the Civil Rights Movement, depicting it as an attack on white southern identity, something demagogues like Trump have used for political gain at the expense of nation unity.

I can’t emphasize enough that the Lost Cause made it more difficult to achieve racial justice, while creating a culture in which white supremacy is normalized and fueled resistance to social progress, including the teaching of accurate history in schools. For me “The Night They Drove Old Dixie Down” was part of that mindset and I resented The Band for it. I think I skipped the show but I’m not positive. I have rolls of undeveloped film from the Last Waltz concert taken from onstage.

Yesterday, the New Yorker publshed an essay by Jill Lepore, What Happened When The U.S. Failed To Prosecute An Insurrectionist Ex-President, looking how leniency towards Jefferson Davis could hold lessons we need consider in regard to a more recent national traitor. She began by describing how a spy and fit 58 year old Davis hobbled into court pretending to be a feeble, broken and sickly man, which he wasn’t all. Outrageously, Davis, who had been arrested in Georgia (in drag, trying to escape)— after issuing a proclamation encouraging the MAGAts of the day to continue the Civil War— got away with his treason, never tried, even though the House voted 105-19 to try him for treason. He spent the rest of his life bitter and unreconciled that Blacks were allowed to vote.

Lepore wrote that today, “The American Presidency is draped in a red-white-and-blue cloak of impunity. Trump is the first President to have been impeached twice and the first ex-President to have been criminally indicted. If he’s convicted and sentenced and— unlikeliest of all— goes to prison, he will be the first in those dishonors, too.” She ties that to Davis’ lack of historical accountability. “If Davis had been tried and convicted, the cloak of Presidential impunity would be flimsier. Leniency for Davis also bolstered the cause of white supremacy. First elected to the Senate, from Mississippi, in 1848, Davis believed in slavery, states’ rights, and secession, three ideas in one. Every state had a right to secede, Davis insisted in his farewell address to the Senate, in 1861, and Mississippi had every reason to because ‘the theory that all [white] men are created free and equal’ had been ‘made the basis of an attack upon her social institutions,’ meaning slavery. Weeks later, Davis became the President of the Confederacy. His Vice-President, Alexander Stephens, said that the cornerstone of the new government ‘rests, upon the great truth that the negro is not equal to the white man.’ Trump could win his Lost Cause, too.”

Personally, I agree with what Massachusetts Senator Charles Sumner said: “I never cease to regret that Jeff. Davis was not shot at the time of his capture.”

“Can Donald Trump,” she asked, “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.”

In January, 1866, Alexander Stephens, the former Vice-President of the Confederacy, was elected to the Senate. Two former Confederate senators and four former Confederate congressmen had also been sent to the Thirty-ninth Congress, which had convened the previous month for its second session. The clerk refused to call their names at roll, and they were never sworn in. But their presence made clear the need for measures keeping “from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence,” as a congressional committee wrote.

A fifteen-man Joint Committee on Reconstruction began considering proposals to disqualify former Confederates from federal office and, at the same time, to guarantee the equal citizenship of freedmen. In January, 1866, the committee held hearings to inquire into the delay in prosecuting Davis, and called the Virginia judge in charge of the case, John Underwood. A New York-born abolitionist and Radical Republican appointed to the U.S. District Court by Lincoln in 1864, Underwood had issued a series of rulings protecting equal rights, declaring, in one case, that “all distinction of color must be abolished.” He’d also suggested that he intended to sell Davis’s Mississippi plantation to ex-slaves for a half-dollar an acre. White Virginians despised him; the feeling appears to have been mutual. The committee asked Underwood whether any jury in Virginia was likely to convict Davis of treason. “Not unless it is what is called a packed jury,” Underwood answered. The committee then summoned Robert E. Lee, who offered a similar assessment.

…What about a Black jury? Black men were banned from jury service, with dreadful consequences. In 1865 and 1866, in five hundred trials of whites accused of killing Blacks in Texas, all-white juries found all five hundred defendants not guilty. “Are our lives, honor, and liberties to be left in the hands of men who are laboring under the most stubborn and narrow prejudice?” the editor of one Black newspaper asked. In March, Congress passed the Civil Rights Act, which enshrined the right to testify in criminal trials. Johnson, in a statement that the attorney Henry Stanbery helped craft, vetoed the bill, warning that it might lead to Congress declaring “who, without regard to color or race, shall have the right to sit as a juror.” Congress overrode the veto, and kept on with the work of extending rights to Black men and denying them to former Confederates. In April, the Radical Republican Thaddeus Stevens added to the proposed Fourteenth Amendment a new section that would disqualify from Congress any former federal officeholders or servicemen who had taken “part in the late insurrection.” There followed much discussion of who, exactly, was to be disqualified, with one version of the amendment stating, “The President and Vice-President of the late Confederate States of America so-called… are declared to be forever ineligible to any office under the United States.” This, however, was not the version that Congress sent to the states for ratification, in June, which, in any case, the states of the former Confederacy refused to ratify. Congress, one North Carolinian said, wanted Southerners to “drink our own piss and eat our own dung.”

[Columbia law professor Francis] Lieber grew resigned to a foul outcome. “The trial of Jeff. Davis will be a terrible thing,” he thought. “Volumes—a library—of the most infernal treason will be brought to light,” but “Davis will not be found guilty, and we shall stand there completely beaten.” Frederick Douglass blamed Johnson, predicting, as a newspaper reported, that “Davis would never be punished, simply because Mr. Johnson had determined to have him tried in the one way that he could not be tried, and had determined not to have him tried in the only way he could be tried.” And, even if he were tried, any verdict would be appealed to the Supreme Court, which, in the aftermath of the Dred Scott decision, could hardly be said to have enjoyed unqualified confidence. Harper’s Weekly asked, “Does anybody mean seriously to assert that the right of this Government to exist is a question for a court to decide?” Will Americans trust the Supreme Court to decide a question of such moment in 2024?

Donald Trump has made much of the fact that three of the four prosecutors who are heading criminal prosecutions against him are Black: Fani Willis, the district attorney of Fulton County, Georgia; Letitia James, the attorney general of New York; and Alvin Bragg, the district attorney of Manhattan. Trump has labelled the three prosecutors “racist,” calls Bragg an “animal” and James “Peekaboo,” and insists that the charges against him are both politically and racially motivated. Sometimes it feels as if the century and a half separating the trial of Jefferson Davis from the trials of Donald Trump were as nothing.

In March, 1867, again overriding Johnson’s veto, Congress passed the Military Reconstruction Act, which called for the occupation of the former Confederacy by the U.S. Army and stipulated that no state could reënter the Union without first ratifying the Fourteenth Amendment. Congress also endorsed jury service for Black men. In Texas, when the military governor announced that Black men would be allowed on juries, some judges refused to hold court. In Virginia, Underwood impanelled Black jurors for Davis’s trial. Many Northerners approved. “The trial of Jefferson Davis, for leading the Rebellion in behalf of Slavery, should be before a jury made up in part of freedmen, if only for the historic justice, not to say the dramatic beauty and harmony, of such a denouement,” the New York Tribune wrote. But Southern newspapers expressed disgust at the “African quota of the Grand Jury,” describing the men, swearing an oath on the Bible, as having “smacked their lips over the sacred volume when permitted to get at it.” And an editorial that ran in both the North and the South asked, “If Davis is to stand before a nigger jury, what becomes of the notion that a man is to be tried by a jury of his peers?”

When a new trial date came— June 5, 1866—Davis wasn’t there; he was in military prison. Lucius Chandler stayed home sick. Chief Justice Chase spent the day in his library in Washington, where he wrote a letter to his daughter. Outside his window, he could hear a newsboy crying, “ ‘Dai-l-y Chron-i-cle!, full account of ’ something I don’t understand what and ‘trial of Jeff Davis!’ ” O’Conor, knowing that Chase wouldn’t be there, didn’t bother to show up, either. Chase maintained that he could not possibly attend a civilian court in Virginia, because the state was still under military rule. Chase planned to run for President in 1868, and he wanted no part in the trial of Jefferson Davis. He had his eye on the election.

Underwood rescheduled the trial for October. But the Chief Justice had no intention of showing up in October, either. Meanwhile, any momentum there ever was to prosecute Davis withered as congressional Republicans pursued Reconstruction, a plan that involved treating the former Confederacy as a conquered nation. If a trial were held and Davis argued that he could not have committed treason because, after Mississippi seceded, he was no longer a U.S. citizen, the government would have to argue that he had always been a U.S. citizen. But if he had been a U.S. citizen during the war, then the Confederacy had not been a foreign belligerent, and the U.S. could not justify its occupation of the region as a “conquered province.” Under these circumstances, Radical Republicans became some of Davis’s most ardent defenders. Gerrit Smith, a fiery abolitionist, helped post bail, and that fiercest of congressional radicals, Thaddeus Stevens, secretly offered to represent Davis.

Underwood rescheduled the trial for October. But the Chief Justice had no intention of showing up in October, either. Meanwhile, any momentum there ever was to prosecute Davis withered as congressional Republicans pursued Reconstruction, a plan that involved treating the former Confederacy as a conquered nation. If a trial were held and Davis argued that he could not have committed treason because, after Mississippi seceded, he was no longer a U.S. citizen, the government would have to argue that he had always been a U.S. citizen. But if he had been a U.S. citizen during the war, then the Confederacy had not been a foreign belligerent, and the U.S. could not justify its occupation of the region as a “conquered province.” Under these circumstances, Radical Republicans became some of Davis’s most ardent defenders. Gerrit Smith, a fiery abolitionist, helped post bail, and that fiercest of congressional radicals, Thaddeus Stevens, secretly offered to represent Davis.

Underwood rescheduled the trial for October. But the Chief Justice had no intention of showing up in October, either. Meanwhile, any momentum there ever was to prosecute Davis withered as congressional Republicans pursued Reconstruction, a plan that involved treating the former Confederacy as a conquered nation. If a trial were held and Davis argued that he could not have committed treason because, after Mississippi seceded, he was no longer a U.S. citizen, the government would have to argue that he had always been a U.S. citizen. But if he had been a U.S. citizen during the war, then the Confederacy had not been a foreign belligerent, and the U.S. could not justify its occupation of the region as a “conquered province.” Under these circumstances, Radical Republicans became some of Davis’s most ardent defenders. Gerrit Smith, a fiery abolitionist, helped post bail, and that fiercest of congressional radicals, Thaddeus Stevens, secretly offered to represent Davis.

Over the summer, [Attorney General] Speed resigned: he supported the Fourteenth Amendment; Johnson opposed it. In Speed’s place, Johnson appointed Stanbery, who’d written the President’s veto of the Civil Rights Act. When Chandler travelled to Washington to confer with Evarts and Stanbery, the new Attorney General explained that he not only wouldn’t lead the prosecution but also wouldn’t attend the trial. The three men decided not to object to O’Conor’s request that Davis be released on bail. And so it was that on May 13, 1867, Jefferson Davis walked into the federal courthouse in Richmond, eyed the grand jury, and smiled. (Grand jurors operate in secrecy and would not normally appear at such a hearing, but Underwood had seemingly insisted on the presence of the mixed-race jury, to serve, as he said, as “ocular evidence that the age of caste and class cruelty is departed, and a new era of justice and equality, breaking through the clouds of persecution and prejudice, is now dawning.”) When the prosecution said that it was not prepared for trial, Underwood agreed to release Davis on bail. “The business is finished,” O’Conor wrote to his wife. “Mr. Davis will never be called up to appear for trial.”

A new trial date was set, for November 25th. No one expected the prosecution to be ready. Two years after Davis’s arrest, Chandler had still not conducted any investigation, or prepared a superseding indictment. Underwood told Speed that he believed Chandler was a Confederate sympathizer who was making money by selling pardons. But it may well be that the prospect of Black men on the jury led the government to abandon the prosecution, fearful that Black men issuing a verdict that condemned a white man to death would inflame the country beyond any possibility of repair. O’Conor at one point assured Varina Davis, “Chandler professes the kindest disposition and says he will try to get a White jury. But this is impossible. Underwood is a devoted courtier at the feet of Sambo and there is no appeal from his decisions.” The trial jury, O’Conor warned, “will be composed of 8 or 9 negroes and 3 or 4 of the meanest whites who can be found in Richmond.” He wrote to Varina, “I find it impossible to believe that we are destined to play parts in a farce so contemptible as a trial before Underwood and a set of recently emancipated Negroes, but it is equally impossible to assert with confidence that the thing will not happen.”

The multiracial Jefferson Davis jury

The thing did not happen. On the day the trial was to begin, a crowd assembled in Richmond to wait for the train from Washington. “The colored population seemed to take a deep interest in the proceedings, and were on hand en masse,” a correspondent for the New York Times reported. The train pulled up. “Has Mr. Chase come?” people cried. He had not. At the courthouse, Underwood announced that the court was adjourned. It’s one of the sorriest moments of the whole sorry story. A newspaper reported that there had been a crowd outside the courthouse, “consisting chiefly of blacks,” but upon hearing the announcement the crowd “quietly dispersed.” No justice, only peace. And peace is not enough.

Then as now, what one half of the country thought best for the country the other half thought worst. In February, 1868, the House impeached Johnson, having investigated him for, among other things, intentionally derailing the Davis prosecution. Lieber favored impeachment, not least for the precedent that it would establish. “As to history, it will be a wonderful thing to have the ruler over a large country removed for the first time without revolution,” he wrote. The same hesitancy that derailed the Davis prosecution derailed the Johnson impeachment: so grave a thing, to try a king. In any event, the Johnson impeachment trial grossly interfered with the Davis treason trial. At the Senate impeachment trial, Chase presided, as Chief Justice, and Evarts led Johnson’s defense, joined by Stanbery (who had resigned his position as Attorney General), which led to yet more postponements.

There was one last gasp. With Chandler’s term as district attorney expiring in June, Evarts recruited the Boston lawyer Richard Henry Dana to join the prosecution. Dana worked hard to prepare for trial. In a Richmond hotel, he and Evarts readied a new, fourteen-count indictment, based on the testimony of multiple witnesses, including Robert E. Lee, who had testified against Davis before a new grand jury. (Evarts wrote a parody of Chandler’s earlier, cursory indictment: “I have arrived at the fact that J.D. used to wear a Confederate uniform on great occasions, and have a witness who can prove it, in the person of a colored waiter who came to me last evening.”) But Dana reluctantly concluded that the trial should not proceed. What seemed more urgent was to disqualify Davis from ever again holding public office; sending him back to prison, or, God knows, hanging him, could have been almost as bad for the country as acquitting him. Dana drafted a letter of resignation on both lawyers’ behalf, and sent it to Evarts, who pocketed it, unsure what to do.

By the time Chase and Underwood finally held court together in Richmond, in December, 1868, the Fourteenth Amendment had been ratified, and Chase had discreetly suggested to the defense a new line of reasoning: that Davis could no longer be prosecuted for treason because, having been disqualified for office upon the amendment’s ratification (“It needs no legislation on the part of Congress to give it effect,” the defense said), he had already been punished. O’Conor gleefully offered up this argument, suggested to him by the Chief Justice himself. Dana, who knew the argument to be nonsense, countered that the Constitution is not a criminal code and that being disqualified from office is not a penalty. Chase agreed with O’Conor; Underwood agreed with Dana. The case would have gone to the Supreme Court. But, on Christmas Day, Johnson pardoned “every person who directly or indirectly participated in the late insurrection or rebellion,” and, not long after that, the prosecution entered a nolle prosequi. The end.