Abstract

In the aftermath of the January 6 attack on the United States Capitol, one question looms large: should former President Donald Trump be prosecuted for his role in fomenting the insurrection? This Note answers that question affirmatively using the Civil War as a case study. Expanding on scholarly work showing that the Civil War and January 6 are analogous, this Note examines the mostly failed prosecutions of Confederates in the aftermath of the Civil War. Despite indicting numerous top Confederate officials for treason, prosecutors were ultimately thwarted by a series of amnesties proclaimed by President Andrew Johnson. This Note follows a series of indicted Confederates, comparing their cases with Trump’s. It then examines the long-term consequences of failing to try the top Confederates and whether similar consequences might result if Trump is not tried for insurrection.

Ultimately, this Note uses the Civil War case study approach to analyze whether Trump should, or could, be tried for treason. Part I reviews the relevant background of the post-Civil War prosecutions and the January 6 attack; Part II then explores numerous lessons learned from the post-Civil War prosecutions before Part III applies those lessons to Trump. These lessons go beyond just Trump: they are instructive for any future nexus of politics and prosecution.

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