Reconstruction Offers No Easy Answers for How to Handle the Trump Insurgency

Historians and the history-minded began having persistent Reconstruction flashbacks even before last week, as Democrats discussed how far to take the many possible future investigations and prosecutions of Donald Trump. With the Capitol riots and related events of Jan. 6, those flashbacks got more vivid. It’s obvious, in hindsight, that something (anything! many things!) should have been done after the Civil War to stop the homegrown authoritarian regime known as “Jim Crow” from developing. Would stronger punishments for the figureheads of secession have worked?

I asked Cynthia Nicoletti, a historian at the University of Virginia who wrote a book about why the North failed to bring the leader of the Confederates to trial (Secession on Trial: The Treason Prosecution of Jefferson Davis), to explain how Southerners who led the rebellion managed to escape punishment and to speculate as to whether that move might have made a difference.

Our conversation has been edited and condensed for clarity.

Rebecca Onion: What did Northerners think, as the war was coming to an end, should be done with Southerners who fought for the Confederacy?

Cynthia Nicoletti: After the war, Northerners were talking about things like, Let’s hang Jeff Davis from the sour apple tree. There was this rumor that Davis was arrested wearing women’s clothing—that by all accounts was not actually true, and he was very angry about it!—and that led to people saying, Let’s take him, put him in women’s clothing, parade him through the streets, and charge people to see him humiliated.

But the American justice system doesn’t work like that—and so one of the things that really interested me is how difficult getting the “right” outcome was. One of the things that’s really important here is that the government was all gung-ho to put Davis on trial for treason at the end of the war. There was a fervor to try him—like, If we don’t, what we’re suggesting is that waging this war, on this huge scale, and killing all these people for this terrible cause will go unpunished. We are not a nation if we are not capable of trying the head traitor for treason. They could have tried all the Confederates for treason, but they thought, Let’s have Davis be the first test case, and after he’s tried and convicted, there will be lots of prosecutions to follow.

But it quickly became apparent that they could get the wrong outcome in the trial, and they worry that if the Davis trial is supposed to be a proxy for the idea that the Confederate war effort was illegal—that states were not allowed to secede from the Union—what happens if they get the wrong outcome? If they get a jury that refuses to convict Davis, what does that say about the legality of the war effort? What if they get a judge, or even a Supreme Court justice, who says something like Secession was legitimate?

There was also a real debate within Northern society about punishing these people, versus showing them mercy. What’s interesting is how quickly this really intense sentiment—we should hang all of the Confederates, and make all of them pay—Vengeance!—really fades. Public opinion did really change quite dramatically. Reading newspapers and people’s letters, you see Northerners very fired up about punishing Confederates through 1865, and when you get to 1866, it starts to dissipate.

The question really is, how would you punish Confederates? If you’re going to punish them through the legal system, and in a way that really comports with the letter of law and all of the protections the United States Constitution affords to all criminal defendants, it makes it hard to try them and make sure you get a conviction. I think public opinion is in some sense related to this, because it becomes clear that exactly what the outcome is going to look like is not going to be fully satisfying to Northerners.