Robert Icenhauer-Ramirez Talks About Treason Prosecution

Robert Icenhauer-Ramirez—lawyer, historian, and author—takes us through the authors and books that inspired his book, Treason on Trial: The United States v. Jefferson Davis.

Jefferson Davis, as taken by photographer Mathew Brady. Public domain photo.

The current trend in historical scholarship is to minimize the role that individuals have in shaping events. That trend has influenced recent scholarship regarding why Jefferson Davis was indicted and imprisoned for treason after the Civil War, but never brought to trial. Other writings examine this failure through the lens of Reconstruction politics or viewing 19th century America as a nation obsessed with the rule of law and seeking to gain judicial confirmation that secession was unconstitutional despite the Civil War having decided that question militarily.

In these studies, the struggle over Reconstruction and American legal jurisprudence take center stage. But the individuals involved in the prosecution—the judges, prosecutors, defense attorneys and government officials—have a minimal role in a drama with an inevitable end. My new book Treason on Trial: The United States v. Jefferson Davis disputes this historical scholarship. 

That is not to say that the legality of secession did not concern the lawyers involved in the case. This was a highly complex prosecution.  Each side grappled with the issue of secession and how it would be used at Davis’s trial. But the United States government’s reason for prosecuting Davis was not tied to a desire to have a court address the legality of succession. Indeed, a bloody war had already decided that secession was unconstitutional. Instead, the prosecution was brought, quite simply, to punish Davis for treason. 

My years of work as a trial lawyer have taught me that preparation and skill are very important to the outcome of a case. The facts of the Davis case, the skill of the lawyers and the objectives (and ambitions) of the judges, as well as the location of the trial, influenced the case. The individuals who grappled with the effort to try Davis for treason were memorable personalities. It was these people—their actions and inaction—who determined the outcome of the case.

There were many books that influenced my interest in writing about this treason prosecution.

Jonathan W. White broke ground by examining the trial of John Merryman, a well-known, but poorly understood, case, in Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. Merryman, who White points out was indicted two times by the federal government, proved to be a difficult case to bring to trial.  This difficulty resulted from the judge presiding over the case. Chief Justice Roger Taney, who presided over the federal circuit court in Baltimore that heard the case, opposed Lincoln’s efforts to prosecute Merryman. In another similarity to the Davis prosecution, Merryman would have to be tried by jury from a location deeply sympathetic to Merryman. White’s work should have a place on the shelf of any legal scholar interested in the difficulties facing the government in a treason prosecution.

Had Abraham Lincoln not been assassinated, Jefferson Davis would likely have been allowed to escape the country. Lincoln was a great lawyer who recognized the problems, legal and political, in bringing a capital charge against Davis. But when Lincoln was murdered by John Wilkes Booth and Davis was believed to have approved the assassination, the federal government unleashed a relentless search for Davis. Davis avoided a military tribunal despite there being men in leadership positions who wanted him tried by a military commission. Lincoln’s Assassins: Their Trial and Execution, written by James L. Swanson and Daniel R. Weinberg, is an illustrated history, providing a reader with an understanding of how quickly, and effectively, Davis might have been prosecuted by the government had they decided to utilize a military commission to try him.

Robert E. Lee’s complex loyalties are the subject of one of the chapters in Gary Gallagher’s book, Becoming Confederates: Paths to a New National Loyalty, that tie into the theme of my book. Davis faced similar conflicting loyalties. Like Lee, he had sworn loyalty to the United States.  But, as Gallagher points out, Lee was also loyal to his state, Virginia, the slave-holding South and to the Confederacy. Davis had the same loyalties. Gallagher’s insights into Confederate national loyalty provide a valuable guide to the motivations of men like Davis.     

The Davis prosecution occurred during the political upheaval of Reconstruction. Allen Guelzo’s masterful account—Reconstruction: A Concise Historywill give a reader a deeper understanding of the United States during the years that Davis was under indictment. 

The preeminent biographer of Jefferson Davis, William J. Cooper, Jr., authored a collection of essays on Davis that includes an essay on Davis after the war— Jefferson Davis and the Civil War Era. Cooper argues that Davis played a powerful role in creating the Lost Cause ideology. The essays, taken together, assess Davis both before an after the Civil War. Davis’s connection to secession, his antebellum politics and war-time leadership are analyzed in this short, but very important, work.

Robert Icenhauer-Ramirez is an attorney based in Austin, Texas. He earned a doctorate in history at the University of Texas, Austin. His book Treason on Trial: The United States v. Jefferson Davis is due from LSU Press June 2019.