The Trial That Didn’t Happen

Weekly Standard | 4/13/2018 | Allen C. Guelzo
marked (Posted by) Level 4
Treason is defined by the Constitution in Article 3, section three, as consisting in levying War against the United States or in adhering to their Enemies, giving them Aid and Comfort. Stark as that prescription is, fewer than 30 people have been tried for treason by the federal courts. Two of these—Philip Wigle and John Mitchell—were convicted for their role in the 1794 Whiskey Rebellion but then pardoned by President George Washington. Aaron Burr was tried for treason after a failed conspiracy to set up his own political empire in the Mississippi Valley, but he eluded conviction because, as Chief Justice John Marshall reasoned, “war must actually be levied against the United States.” Burr’s plot hadn’t become more than a plot, and since “conspiracy [to levy war] is not treason,” Burr walked free.

But surely the oddest treason trial is one which never took place, that of Robert E. Lee. Surely, if anyone could be said to have levied war against the United States, it must have been the man who for four years inflicted one embarrassing defeat after another on United States troops during the Civil War and almost single-handedly kept the Southern Confederacy alive until its final expiry in 1865. What aggravates Lee’s offense is his pre-war career of over 30 years as a U.S. Army officer and the offer of command of the U.S. Army made to him at the outbreak of the Civil War in 1861, which he refused. “What has General Robert Lee done to deserve mercy or forbearance from the people and the authorities of the North?” the Boston Daily Advertiser shrilly demanded after Lee surrendered his dwindling, scarecrow band of rebels at Appomattox Court House on April 9, 1865. Lee was “the bloodiest and guiltiest traitor in all the South,” and Congressman George Julian...
(Excerpt) Read more at: Weekly Standard
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