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JG6789-
The two special counsels, namely John J. Clifford and Richard Dana, who were appointed by the Federal Government both withdrew, questioning the validity of the Government's case. They thought that the Government was likely to lose and should leave well enough alone.
Davis’ defense argued in US Circuit Court that Davis’ indictment be thrown out because—as they argued—he had already been punished for treason by the clause of the 14th amendment barring those who have engaged in rebellion, insurrection, or treason from public office. Thus, to try him for treason constituted double jeopardy. The government responded with the argument that the disqualification from office was not a criminal penalty, therefore the trial could go ahead. The Circuit Court judges demurred, and put the matter to the Supreme Court. Dana and Clifford did indeed express doubts that the government’s argument would win in the Supreme Court but, significantly, these doubts were not over whether the government could successfully convict Davis of treason at a trial, but over whether the Supreme Court would even let them go to trial in the first place.