Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2018 The Law (?) of the Lincoln Assassination Martin S. Lederman Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1835 https://ssrn.com/abstract=2854195 118 Colum. L. Rev. 323-489 (2018) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Legal History Commons, and the Military, War, and Peace Commons COLUMBIA LAW REVIEW VOL. 118 MARCH 2018 NO. 2 ARTICLES THE LAW(?) OF THE LINCOLN ASSASSINATION Martin S. Lederman* Shortly after John Wilkes Booth assassinated Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theatre. Johnson’s decision implicated a fundamental constitu- tional question that was heatedly debated throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury with an independent, tenure- protected presiding judge by trying individuals other than members of the armed forces in a wartime military tribunal? That question is significant in the United States’ current armed conflicts against nonstate terrorist organizations such as al-Qaeda because Congress has authorized military commissions to try such nonstate enemy forces for domestic-law, war-related offenses. The gov- ernment and some judges have looked to the Lincoln assassination commission—in the words of one jurist, “the highest-profile and most important U.S. military commission precedent in American history”— as a leading precedent in support of such military jurisdiction, one that purportedly helped to establish a political branch practice that should inform constitutional understandings. As this Article demonstrates, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. During and immediately after the Civil War, * Visiting Professor of Law, Georgetown University Law Center. Thanks to Jessica Bulman-Pozen, Michael Crafts, David Golove, David Pozen, and John Witt for their thoughtful reactions and suggestions, and to Walter Dellinger and David Golove for their many insights on Lincoln as constitutional thinker, lawyer, and actor. Bill Binzel and Roger Cosbey saved me from several historical errors; I am grateful for their generous, eagle-eyed review. For their assistance in locating obscure manuscripts and papers, I am also indebted to the staff at the Library of Congress Manuscript Reading Room; to Colleen Puterbaugh and Laurie Verge at the Surratt Society and the James O. Hall Research Center; to Raffaela Wakeman; and, as always, to Thanh Nguyen, Erie Taniuchi, and the extraordinary team of research librarians at the Georgetown University Law Center Library. 323 324 COLUMBIA LAW REVIEW [Vol. 118:323 all three branches engaged repeatedly with the question of the permis- sible scope of military justice and whether certain wartime exigencies might justify circumvention of Article III’s guarantees, but the question resisted resolution; indeed, it was the rare constitutional problem that flummoxed even Lincoln. At war’s end, the President and many of his congressional allies appeared to be on the verge of repudiating the system of military tribunals that Lincoln himself had superintended. His assassination, however, prompted his successor to convene the most controversial military trial of them all, a highly unorthodox proceeding that not only revived the heated debate over the constitutional question but also precipitated one of the only instances in the nation’s history in which the Executive actually disregarded a judicial order—a presi- dential suspension of habeas to prevent the Article III courts from adju- dicating a challenge to their own displacement. The Article unearths this fascinating but rarely examined chapter in the history of constitutional war powers. The Article then carefully examines the place of the Lincoln trial in the nation’s constitutional discourse over the past century and a half and demonstrates that, far from being viewed as a canonical precedent, it has been virtually unthinkable for anyone to rely upon the assas- sination commission as venerated legal authority. This historical recovery is significant for the ongoing constitutional litigation challenging such military trials. More broadly, this historical survey might also inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution and when, if ever, asserted exigencies of war might justify deviations from the constitutional norm. PROLOGUE................................................................................................. 326 INTRODUCTION ......................................................................................... 337 I. CONSIDERATION OF THE CONSTITUTIONAL QUESTION DURING THE CIVIL WAR ..................................................................... 355 A. The War Department’s Justifications for the Constitutionality of Military Adjudication of Domestic-Law Offenses................ 357 1. The “Martial Law” Argument from Necessity................... 359 a. Halleck, December 1861 ............................................. 360 b. Stanton and Lincoln, August and September 1862 ... 364 2. The Lieber Code’s Theory of Alleged Violations of the “Laws of War”...................................................................... 365 3. “The Power to Make War . Without Limitations”.......... 370 B. Views from the Political Branches............................................. 374 1. Attorney General Bates ...................................................... 374 2. President Lincoln............................................................... 375 3. Congress ............................................................................. 383 2018] THE LAW(?) OF THE LINCOLN ASSASSINATION 325 a. The Habeas Act of 1863 .............................................. 383 b. The 1864 Guerrilla Sentencing Provision .................. 386 c. The Eleventh-Hour Initiative in March 1865 to Prohibit Commission Trials in Places Where Civil Courts Were Open....................................................... 387 II. THE CONSTITUTIONAL DEBATES IN THE CONTEXT OF THE LINCOLN ASSASSINATION TRIAL .................................................. 394 A. The Policy Arguments for a Military Tribunal in the Assassination Case..................................................................... 397 B. Addressing the Constitutional Question ................................. 399 1. Comstock’s Doubts.............................................................. 402 2. The Jurisdictional Pleas ...................................................... 403 3. Ewing’s Request for Specification of the Charge............... 403 4. The Oral Arguments on Jurisdiction.................................. 406 5. Mary Surratt’s Habeas Petition and Johnson’s Suspension of the Writ............................................................................ 414 6. Attorney General Speed’s Legal Opinion.......................... 420 III. AFTER THE WAR: MILLIGAN AND ITS AFTERMATH............................... 429 A. Precursor to Milligan: The Coles County Riot and Justice Davis’s Advice to Lincoln........................................................... 429 B. Meanwhile, in Indiana (Early Developments in the Milligan Case)........................................................................................... 431 C. What to Do with Jefferson Davis? .............................................. 433 D. The Supreme Court Finally Weighs In—The Milligan Case.... 436 E. Congress’s Reaction to Milligan in Anticipation of Reconstruction........................................................................... 443 F. Milligan’s Impact in the Executive Branch and the Courts ..... 448 1. The Fate of the March 2, 1867, Congressional Enactments .......................................................................... 448 2. Cases Involving the Alleged Lincoln Conspirators Themselves .......................................................................... 450 a. John Surratt.................................................................. 451 b. Mudd, Arnold, and Spangler ...................................... 452 3. Military Trials for Violations of the Law of War................. 454 IV. THE LINCOLN ASSASSINATION COMMISSION LEGACY (OR LACK THEREOF), 1886–1940 ........................................................................ 457 V. MODERN DEVELOPMENTS ................................................................... 461 A. The Nazi Saboteurs Case (Quirin) ............................................ 461 B. The Surprising Revival of the Case of Samuel Mudd............... 469 C. After 2001: Resuscitating the Lincoln Case as Precedent ........ 471 326 COLUMBIA LAW REVIEW [Vol. 118:323 VI. THE USE OF LANDMARK MILITARY TRIALS AS A SOURCE OF CONSTITUTIONAL AUTHORITY .......................................................... 473 A.