Thread by @DavidPepper

🚨🚨

The Dangers of No Accountability

A 🧵

With today's dismissal of the Jan. 6 cases, I am reminded of a past struggle over a disputed election result, and the deep damage when there is no accountability for lawless and violent efforts to overturn the election results.

1.

The clear lesson from the past: political and racist violence must face swift and decisive accountability, or the violence only continues. And wins

We ignore that at our peril

(Much of what follows is drawn from the outstanding book by Charles Lane,"The Day Freedom Died"):

2/

The two names tell you everything.

In 1869, in rural Lousiana, naming a new parish (county) after Ulysses Grant (on March 4, the same day the President was sworn in as President), and a new town after Schuyler Colfax, Grant’s new Vice President

3/

underscored that politics defined the community from its very creation.

And in the years that followed, the heated and violent political tension in Colfax, and surrounding Grant Parish, never let up.

4/

In the same 1872 election that reelected Grant at the highest level, state and local elections in Colfax pitted two factions against one another:

On one side stood a multi-racial coalition of Republican candidates and their supporters--

5/

—a combination of White candidates and citizens, many having transplanted from the North, and newly enfranchised and politically active Black Louisianans, most of them former slaves from the area.

On the other side stood a slate of Democratic candidates,

6/

teeming with white supremacist sentiment and eager to eliminate Reconstruction and diverse democracy at all levels of Louisiana government, starting locally.

Of course, a similar political showdown was playing out across the South at the time,

7/

tinged with high tension that often spilled over into outright violence largely aimed at Black citizens.

Both Black voters and elected officials and convention participants were routinely attacked—sometimes murdered.

8/

But in Colfax—where a high-stakes and chaotic dispute emerged over who actually won those 1872 elections, then built into a face-off of large armed groups inside and surrounding the town’s courthouse—the powder keg exploded far beyond that.

9/

By the time the courthouse was in flames, only Black residents of Grant Parish—hundreds of them—remained trapped inside. Surrounding them, armed to the hilt, was a posse drawn largely

10/

from white supremacist groups that had emerged in the area, including some who had recently murdered other Black citizens.

In the minutes and hours that followed, those huddled inside were systematically slaughtered.

11/

The first were killed on the perimeter, fired on by the cannon—left-over from the Confederate arsenal—just before the white supremacists torched the courthouse roof. Many burned inside after fire enveloped the building.

Many others rushed from the courthouse,

12/

only to be shot in the back as they ran away, or when they were found hiding in nearby homes or surrounding woods.

Others were taken prisoner, and thenmurdered in cold blood—shot point blank in the head. 

13/

Estimates of the final death toll vary, but most accounts put it at between 80-100.

Of those who’d laid siege to the courthouse, three died. At least two were killed by friendly fire.

Even though dead and mutilated bodies were strewn throughout the town,

14/

Colfax was sufficiently remote that it took days for the nation to appreciate the scale of the violence that had taken place in an American town.

It then became front-page, national news—and yet more debate about who was to blame.

15/

But President Grant didn’t “both sides” the massacre. He’d taken on Klan violence in recent years using both the military and recently enacted federal legislation he’d signed into law, and his administration continued that fight now.

16/

The federal government brought charges against a handful of perpetrators who they were able to identify and apprehend as leaders of the courthouse siege and grisly murders.

17/

After two long and highly public trials in New Orleans, a jury found several of the defendants (including one Bill Cruikshank, a wealthy planter and well-known white supremacist who was identified as a key organizer of the slaughter) guilty, to face ten years in prison.

18/

But weeks later, a Sup Court Justice (who happened to be “riding the circuit” at one point in the second trial), reversed the convictions for violating the powers of the federal government under the Constitution

Without getting into all the technicalities, that decision

19/

was later upheld by the full Court

The decision--US v. Cruikshank--marked a dramatic departure from prior cases, where the federal government had been successfully cracking down on racist political violence in the South.

The legal ramification of the Cruikshank case,

20/

along with a number of other cases of the era, was to eviscerate the post-Civil War Amendments, the legislation that attempted to enforce them, and the right to vote more broadly.

Later, Congress repealed most of the Enforcement Acts altogether.

21/

As historian Eric Foner summarizes, “the decision rendered national prosecution of crimes committed against blacks virtually impossible, and gave a green light to acts of terror where local officials either could not or would not enforce the law.” (Foner, 531).

22/

Or as the Philadelphia Inquirer wrote at the time: the decision “breaks whatever force the Enforcement Act may have possessed.” (Lane, 246).

The complete lack of accountability for even such a public, proven and abominable explosion

23/

of violence rendered a predictable impact: ever more violence.

Even the initial ruling by the individual Justice (overturning the convictions) sparked a new round of violence in Louisiana,

24/

as white supremacists instantly felt liberated from the specter of accountability for crimes committed against Blacks.

After that initial opinion came down, one newspaper applauded that the Black citizen would no longer be able to...

25/

“invoke the strong arm of the Federal Government to protect him….” (Lane, 212).

Violence predictably broke out in numerous states in the months that followed, usually around election time—and often (as intended) intimidating Black voters from showing up at the polls.

26/

That violence only worsened over the long delay before the Supreme Court issued its final opinion in Cruikshank. Violence and anarchy became the norm in Louisiana, as large armed militia groups grew in size and their level of aggression.

27/

Another massacre took place in August 1874, climaxing into a near civil war over who would lead the state.

After oral arguments for Cruikshank took place in March 1875, but before the decision was announced (the Justices went back

28/

and forth for the remainder of the year and into early 1876), the downward spiral continued, with a bloody election cycle taking place in Mississippi that led to murders of Black and Republican Party members and a sitting state representative.

Again, no accountability.

29/

And of course, after the decision came down in March 1876, violence only worsened in a pivotal election year.

In South Carolina, Louisana, and Florida, high-stakes elections were accompanied by violence, not only leading to murders...

30/

but also impacting the outcomes due to depressed Black turnout.

Not only did Democrats sweep back into power in numerous Southern states, but those outcomes led to the deadlock that sparked the infamous brokered presidential election in early 1877

31/

—where Southern Democrats agreed to seat Republican Rutherford B. Hayes as president in exchange for his removing the military from the Southern states where they remained.

This also meant the handing over of power to Democrats in Louisiana and South Carolina—

32/

states that still had a black majority of citizens but would now be led by white supremacists.

And there was one other very specific demand to which Hayes acceded: replacing the Louisiana U.S. Attorney who had prosecuted the Colfax Massacre.

(My guess is this will be...

33/

...a preview of attempts to punish Jack Smith and his team. Similar recriminations by the right are already being voiced).

Even that attempt to hold the murderers accountable via a law passed by Congress was apparently too much to leave unpunished.

34/

In the Southern elections that followed, both violence and fraud became commonplace as a way for these new governments to retain and maximize power. As Lane writes: “The combined impact of mass murder and legal retrenchment

35/

made it easier for Southern Blacks to be gradually dispossessed of the political power they thought they had won in the Civil War.”

In 1888, one of the defendants let off the hook by the Cruikshank decision was elected Mayor of Colfax.

36/

And once the Democrats (and like that new Mayor of Colfax, these were often the very ones who had committed violence in the first place) occupied offices of power up and down Southern government,

37/

thanks to Cruikshank, they were the ones who shouldered the sole duty to keep Black citizens safe.

With that power and duty, they, of course, did nothing. Which meant systematic violence became the norm for generations—

38/

and the tool underlying generations of Jim Crow and non-democracy—while a federal government sat on the sidelines.

So that's the sobering history around the Colfax Massacre and all that followed.

39/

One of the many troubling things about the massacre and the case is that within the long arc of Constitutional law, Cruikshank is hardly known.

Most law students will learn little about the case but a few lines of black letter law.

40/

The casebook I use for my Voting Rights course mentions Cruikshank once, on Page 3 out of 1226 pages, cited in support of the proposition that: “acts of violence designed to intimidate voters do not violate the Constitution if committed by private individuals"

41/

Not one word about a massacre.

A second casebook from my bookshelf also mentions it one time, out of 1207 pages. Again, only a single sentence, but it does mention that “a white mob murdered a group of black voters in Louisiana” in a parenthetical summary of the case.

42/

A third casebook (947 pages) doesn’t even mention the case at all.

The near disappearance of the case as a matter of law and history shrouds the real-word and political impact the decision rendered, and the vital lesson we repeatedly fail to learn,

43/

and which, I deeply worry, we will have to re-learn once again following the dismissal of the Jan. indictment against Trump and others.

The parallels are deeply disturbing:

44/

January 6—a violent dispute over a presidential election outcome—happened with all of us watching.

Since then, we have seen increasing threats of violence against elected officials, as well as against those who do the hard work of running elections themselves.

45/

Against this backdrop of growing violence, we saw the US Supreme Court rule in its infamous immunity decision that certain acts--even lawless and violent onces--by the president & other officials acting within "official duties" do not face accountability.

46/

Yet Colfax teaches the lesson that without accountability for such acts of political violence, such violence continues.

Those committing violence only escalate further.

And that atmosphere of violence—and direct acts of violence

47/

—set in as the new normal, and shape the politics of communities and the entire country going forward.

And Colfax also taught us that allowing political figures and leaders to be held immune from accountability for fueling or engaging in violence...

48/

introduces the possibility that violence can itself shape, even alter, the outcome of that next election. And those that follow.

It sure did in 1876.

And continued to do so through decades of violence and non-democracy that followed.

49/

Numerous misjudgments & bad decisions led to a similar lack of accountability for those who led the Jan. 6 effort. A failure to learn from our history contributed.

And that history instructs us that we must work hard to avert even worse long-term consequences.

END