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Est. April 5, 2002
May 03, 2018 - Issue 740

The Crime Did Not Fit,
But The Jury Would Not Acquit:
The Irony of Donald Trump
and the
Petition to Pardon Jack Johnson

By Al-Tony Gilmore, PhD

"What Trump definitely will not do, is what
he should do. Admit that Johnson did not commit
a crime, and apologize for the corrupt actions
of the Justice Department that prosecuted,
convicted, and incarcerated an innocent man,
destroying his career and altering much
of his life in the aftermath."

Jack Johnson was boxing's heavyweight champion from December 26, 1908 until April 5, 1915; an era of Social Darwinism, white supremacy, legal segregation, eugenics and routine black lynchings. He was the most publicized and well-known black on earth. For most blacks he was revered because he symbolized the possibilities of blacks to compete on a level playing field, a practice of equal opportunity that did not exist in America. He refuted notions of black inferiority on a world stage, and because of his bold personal behavior and sense of freedom and manhood, he challenged the outer perimeters of expected Negro behavior, providing an example for blacks with which they could vicariously identify. Whites reviled him for the same reasons, but nothing was more irritating than one glaring fact that could not be ignored - he preferred white women and traveled with entourages of them.

Against the backdrop of the era, any suggestion of a black man having intimacy with a white woman in the South was a virtual death sentence routinely enforced by public lynchings. Jack Johnson not only dated white women, he married two. In 1912, his first white wife committed suicide, and within months he married another. Interracial marriages were forbidden in most states, but Johnson's marriages were in Chicago, Illinois, the city of his residence, a state where such marriages were not forbidden by law. So infuriating were Johnson's expressions of his legal rights, many whites rushed to condemn him causing a national uproar.

Johnson rubbed salt into the wounds of racism and segregation, once proclaiming that he could get “any white woman in Chicago" that he wanted. In response to Johnson, speaking with eloquence and indignation from the floor of the U.S. Congress, Representative Seaborne A. Roddenberry of Georgia introduced a constitutional amendment to ban intermarriages, saying:

No brutality, no infamy , no degradation in all the years of southern slavery, possessed such villainous character and such atrocious qualities as the provisions of the laws of Illinois, New York, Massachusetts, among other states which allow the marriage of a negro, Jack Johnson, to a woman of Caucasian strain (applause). Gentlemen I offer this resolution .... Intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant to the very principles of Saxon government. It is subversive to social peace. It is destructive of moral supremacy, and ultimately this slavery of white women to black beasts will bring the nation to a conflict as fatal and bloody as ever reddened the soil of Virginia or crimsoned the mountain paths of Pennsylvania. ... Let us uproot and exterminate now this debasing, ultra-demoralizing, un-American and inhuman leprosy. [Congressional Record, 62d. Congress, 3d. Less., December 11, 1912, pp 502-503 ]

The Governor of South Carolina, Coleman Blease, was more virulent threatening that any black man who placed “his hands upon a white woman ought not to have any trial, and all the white manhood of South Carolina wants to know is that they have the right man and there will be no trial." Fortunately, though anti-miscegenation constitutional amendments were proposed in 1871, 1912, 1913, and 1928, enough decency and fairness prevailed that no such amendment of federal law banning interracial marriages was ever enacted. However, prior to the California Supreme Court's ruling in 1948 (Perez v. Sharp), no state court had ever struck down a ban on interracial marriages.

Equally revolting as his marriages to white women, it was Johnson's domination of "White Hopes" that was most unsettling to whites who wanted to restore the heavyweight championship and its symbol of physical superiority to the white race. A calculated decision was made by federal prosecutors of the U.S. Department of Justice to dethrone Johnson as champion by charging him with violation of the Mann Act, (The White Slave Traffic Act) - the transportation of women across state lines for immoral purposes, by proving that a white woman, Belle Schreiber, who was not married to Johnson had once traveled from one state to another and engaged in sex. It did not matter that the woman was not solicited as a prostitute - the specific behavior targeted in the Mann Act -- and that the sex was consensual, which was not a stated violation of that law of 1910. All that mattered was that a conviction and prison sentence was the most convenient and efficient way to remove the heavyweight crown from the dome of Johnson's black bald head. On May 13, 1913, Johnson was found guilty by an all-white jury in the U.S. District Court in Chicago and sentenced to a year and a day in federal prison. The sentence was excessive as violators of the Mann Act - those who trafficked in prostitution for financial profit - were usually given fines and probation. The prosecutor and the judge lauded the excessive sentence. Tacitly admitting that Johnson's persecution was designed for its social significance, the prosecutor admitted that "it was his misfortune to be the foremost example of the evil in permitting the intermarriage of whites and blacks" though the charges against Johnson nominally had nothing to do with race, intermarriages, or miscegenation.

Rather than submit to incarceration over the fabricated charges, Johnson decided to surreptitiously leave the country for Europe while on bond pending his appeal. There is some evidence that the federal government facilitated the exile, believing it to be a more lasting penalty than the sentence, and that the influence of his lifestyle of challenging segregation, black inferiority, white supremacy and insisting on his constitutional rights would be lessened by the distance from his race. Subsequently, the appellate court, ruling in Johnson's absence, dismissed some of the charges in the conviction pertaining to prostitution, but would not reduce the prison sentence since it upheld the conviction based on Johnson paying for Belle Schreiber to travel across state lines for the purpose of engaging in consensual sex acts with him. [Johnson v. United States, 215 F.679, 681 (7th Cir.1914)] This decision effectively redefined the Mann Act, making it the first time in its history that it was used to invade the personal privacy of two consenting adults and criminalize their sexual conduct. Johnson had vigorously argued that the Mann Act should not apply to consensual sexual behavior, but the appellate court disagreed, and held that the statute covered "sexual immorality, and that fornication and adultery are species of the same genus." [Johnson, 215 F. at 683.]

Nothing has changed since that time regarding those court decisions, and technically the sole basis for Johnson's conviction remains the sexual intercourse/debauchery count in the indictment. Johnson's reputation, dignity, and legacy were eviscerated to the extent that he became a pariah to the boxing world. Once Johnson was defeated in 1915, it would be 22 years before another black boxer, Joe Louis, would be given an opportunity to fight for the title. Louis' handlers were so aware of the shadow of white resentment to Johnson that a public relations campaign was orchestrated by his all-black management team emphasizing that Louis was the anti-Jack Johnson, void of instincts for social relations with white women, or of a desire to challenge the etiquette of segregated race relations.

None of this was true to Louis' personality, but the constructed image of a wholesome Negro was necessary to advance his career.

After losing the title in a controversial match to Jess Willard in Havana, Cuba in 1915 -- losing in the 26th round and dominating the first 25 rounds - Johnson lived in Europe before making arrangements with U.S. officials for returning to the U.S. in July of 1920, where he surrendered to Federal agents at the Mexican border. His prison sentence began in September of that year, at the Federal prison in Leavenworth, Kansas. After being released in July of 1921 , with his fortune depleted , he resorted to what was left of his fame by barnstorming throughout the country as a sideshow attraction, participating in low paying exhibition matches, and making personal appearances at events where his celebrity was still in vogue, or attending boxing matches where his presence was modestly compensated by promoters.

Overlooked and ignored by the public for a generation, the resurrection of Johnson's life and the rehabilitation of his legacy began during and shortly after the eras of the Civil Rights and Black Power Movements -- with Howard Sackler's award winning Broadway play, The Great White Hope (1967 ), and movie adaptation of the play (1970); Miles Davis' bestselling album, A Tribute to Jack Johnson (1971); the books of Al-Tony Gilmore, Bad Nigger: The National Impact of Jack Johnson (1975 ) and Randy Roberts, Papa Jack : Jack Johnson and the Era of White Hopes ( 1983 ); Ken Burns' monumental PBS documentary, Unforgivable Blackness: The Rise and Fall of Jack Johnson (2004 ); and the book by Geoffrey C. Ward of the same title (2005); and, more recently, Theresa Runstedtler, Jack Johnson: Rebel Sojourner: Boxing in the Shadow of the Color-Line (2012 ). Perhaps, creating even more energy for the reclamation of Johnson was that his name gained entry into history textbooks in the 1970's, and black studies and black history courses, and sports scholars and journalists began to reexamine Johnson's life at the critical intersection of sports and society.

Moreover, Muhammad Ali's rise to boxing prominence in the 1960's and his willingness to use his stature to advance social causes and the interests of the black diaspora were such that they begged for comparisons with Johnson, which greatly assisted in reclaiming Johnson from infamy. Besides, Ali considered Johnson to be his hero, frequently invoking his name to some audiences who had no memory or knowledge of Johnson, and reminding those who did, in whose shadow " the self-proclaimed greatest" proudly stood. Both stimulated black pride and both were quintessential "bad niggers,” the type of persons who demonstrate an utter disregard for death or danger, who cannot be intimidated, and who to whites are dangerous and difficult to control. Conversely, this same personality type has always been a hero in black culture.

In 2004, the first petition to the President of the United States for the pardon of Jack Johnson was produced by The Committee to Pardon Jack Johnson, led by filmmaker Ken Burns and a prominent group of scholars, actors, politicians and well placed Americans. In many ways, it caught the nation off guard, but the timing was right in the wake of the widely acclaimed PBS documentary. Since Johnson's conviction, no other President or the climate in which they served would have been receptive to the petition. But times had changed in America - especially in its attitudes towards black men and white women. When Johnson was convicted, it would have been unimaginable that a black attorney married to a white woman would have been nominated to the U.S. Supreme Court and have survived the confirmation process without being lynched - and it would have been by rope and tree, not "high-tech."

The petition was sent to President George W. Bush, perhaps because he had been so instrumental in supporting the proposals for the construction of a National Museum of African American History and Culture on the National Mall. President Bush did not pardon Johnson, but it was that petition that helped newer generations of Americans understand that Johnson did not receive justice in the U.S. Courts, and that his "biggest" crime was marrying and having consensual affairs with white women - then considered to be the worst example for his race, and an assault on the sensibilities of many whites. Up to that time, none of the preceding presidents would have given the petition a second thought. It would have been considered either offensive, too explosive, without a political constituency, not required to repay a political debt, or fraught with too much baggage and risk for legacies. That list of former presidents includes Roosevelt, Truman, Kennedy, Johnson, Carter, and Clinton, each whose presidential campaigns made promises to blacks, and were highly dependent on black voters, though not a single one would have supported the petition, nor did any have black advisors who would have encouraged them to support it.

Attempts to clear Johnson's name with the Justice Department was another alternative to a Presidential pardon, but a difficult one to pursue, though there have been efforts in that direction. Basically, the Justice Department investigations on pardon requests are lengthy, complex and granted for people who are still living. Making a case that Johnson should be an exception is not easy. A number of Congressional efforts to clear Johnson's name have been unsuccessful. Petitions to the President to pardon Johnson can be started by any group or organization, and one such petition was initiated in 2004 by former boxing champion Mike Tyson at , and it, too, received notable endorsements, but President Bush did not act on it.

The quality of a petition is important, and the names of those whose names are affixed to the petition weigh heavily in determining its value, as well as the names of individuals and organizations that support it. The 2004 petition assembled by Ken Burns' Committee was meticulous, detailed and persuasive. Its 30 pages, prepared by a law firm , are comprehensive in the framing of Johnson's life, and explaining how and why Johnson was framed by the Department of Justice, using the unvarnished racist language - both private and public - of the prosecutors, press, and judges in his case. America's views on race during his trial of 1913, had not changed much since the Dred Scott decision of 1857 when Justice Roger B. Taney said, “a black man has no rights that a white man is bound to respect." The petition listed five reasons why Johnson should be granted a pardon. First, Johnson was framed because he was flamboyant, defiant, controversial and black. Second, it was necessary to expunge the racially motivated abuse of the federal government’s prosecutorial power, which would recognize that all phases of his prosecution were infected with illegitimate, discriminatory racial considerations. Third, his historical significance and reputation had been adversely impacted by the conviction, which was the first time anyone had been prosecuted under the Mann Act because of the opposite race of his consenting partner. Fourth, the pardon would demonstrate that America, at the highest level, can make amends for the miscarriages of justice of the past. And fifth, the pardon should be granted in recognition that he was the first black heavyweight champion, who blazed the trail for other great black athletes who would follow. By far, this petition, among all others, makes the strongest case for a pardon, and it is the petition that Sylvester Stallone brought to Donald Trump's attention and the same one that George W. Bush would not respond to with a presidential pardon. During Bush's presidency, the petition never gained sufficient political strength and public support , though members of the petition's Committee to Pardon Jack Johnson included four members of the Congressional Black Caucus, and Senators Edward Kennedy and John McCain, as well as Elliot Spitzer, the Attorney General of New York at that time, and former New York City Mayor, David Dinkins.

Between that time and the election of Barack Obama in 2008, there have been recurring proposals for the pardoning of Johnson. A bill calling for President George W. Bush to issue a pardon passed the House in 2008, but failed to pass the Senate. Shortly after Obama became President, the feeling was that the overdue pardon had its greatest possibility, Obama was from Illinois, Johnson's state of residence, and rode a tidal wave into office. Shortly afterwards, in April of 2009, Senator John McCain, along with Representative Peter King , Ken Burns and Johnson's great-niece Linda Haywood of Chicago, requested a presidential pardon. Further, on July 29. of 2009, Congress passed a resolution calling on Obama to issue a pardon, which was followed in 2016 by another petition issued by McCain, Senator Harry Reid (Nevada) and Congressman Gregory Meeks (New York) to Obama , on the occasion of the 70th anniversary of Johnson's death. This petition cited a provision of the Every Student Succeeds Act, which was signed by Obama in 2015, in which Congress requested a posthumous pardon; and a vote of the U.S. Civil Rights Commission “to right this century-old wrong” passed unanimously in June of 2016. McCain, a conservative Republican, pleaded that "Johnson's reputation was ruined by a racially motivated conviction of more than a century ago." "Johnson’s imprisonment," he continued, "forced him into the shadows of bigotry and prejudice and continues to stand as a shameful stain our nation's history."

President Barack Obama declined to pardon Johnson, and has never offered the courtesy of an explanation as to why he refused. On his last full day in office on January 19, 2017, supporters of a Johnson pardon were more optimistic than ever, and all were disappointed when Johnson's name was not among the 330 commutations he granted - the record for the largest single-day use of clemency power. Much of that was lost by the media, because most of a stunned nation was still grappling with the surreal transfer of power to Donald Trump. For certain, Obama was no stranger to pardons, having exercised his constitutional power to grant executive clemency to 1,927 individuals convicted of federal crimes. With the end of his presidency, Obama had issued more commutations than the past 13 presidents combined. But the "one" he did not issue, is the one that will certainly place an indelible stain on his legacy.

Trump is without a moral compass, and is passionately and blindly driven by several primary goals: personal financial gain; the satisfaction of his ego as the greatest ever in all things human and presidential; and the total historical erasure of Obama's credibility and contributions. All other items on his goal list are secondary. His obsession with wiping Obama from the pages of history (de-Obamarization) is reminiscent of Nikita Khrushchev doing the same with his Russian predecessor, Joseph Stalin (de-Stalinization) after Stalin died in 1953. Nothing easier and more politically convenient towards that pursuit has come across Trump's desk than the urging of Sylvester Stallone that he pardon Jack Johnson - not because it is the right thing to do, but because Obama did not do it. The contradictions will not bother Trump. It does not matter that Colin Kaepernick represents the athletic evolution of Jack Johnson, as well as the Trump described “sons-of bitches" of the NFL, who exercise their constitutional rights when kneeling during the playing of the national anthem. Or, those champion black athletes, college and professional, who will not visit the White House, while he is President, for recognition of their accomplishments. All are spiritual descendants of Jack Johnson. It does not matter that Trump and many of his followers would have defended the Mann Act prosecution of Johnson. All that matters is that Obama did not pardon Johnson, and that few of Trump's followers know or care about a black boxing champion of over 100 years ago, any more than Trump knew about Frederick Douglass - who he assumed was still alive, when citing him in 2017 during a Black History Month listening session at the White House as “somebody who has done an amazing job that is being recognized more and more, I notice.”

What Trump definitely will not do, is what he should do. Admit that Johnson did not commit a crime, and apologize for the corrupt actions of the Justice Department that prosecuted, convicted, and incarcerated an innocent man, destroying his career and altering much of his life in the aftermath.

Moreover, Trump should encourage some post-conviction relief in federal court and a full exoneration by the same federal judiciary that wrongfully convicted him. This will not happen, but a message needs to be sent to Trump that a presidential pardon alone is not enough; there must be an apology for this prosecutorial misconduct.

The importance of the apology cannot be overstated because when the Supreme Court ruled on the legal meaning of pardons in 1915, it said that acceptance of a pardon carries a confession of guilt and that has been often, but not always, echoed in the courts since that time. [ Burdick v. United States (1915. ] Legal authorities are split on the subject. Therefore, there should be no ambiguity with the apology because while it is doubtful that any judge today would assume that acceptance of a pardon necessarily implies an admission of guilt - and this would be a posthumous pardon - Jack Johnson has no voice in the matter. Those who have researched and studied his life, personality and the facts of the case, know that he would never accept a pardon if it carried a confession of guilt.

Still, to pardon Johnson is a win-win situation for Trump, the most openly racist President since Woodrow Wilson, and if he does, it will allow for the most prolific pathological liar in the history of the presidency to gain an upper hand on Obama. Trump will claim credit - as he should - and will ask the question that will become his refrain, "Why didn't Obama do it?" And it will force Obama into a corner where he will not be able to retort with any credible explanation or spin, or to locate himself anywhere other than on the wrong side of history. Obama may not know black people and black history as well as most people thought, and none of his inner circle -many from Chicago - seems to have understood that more black people would have supported the pardon, than the number of those who voted for Hillary Clinton. His failure is a singular tragedy that was under the radar screen of public opinion until Stallone called the White House.

Obama is black, Obama is a lawyer, and Obama is brilliant, but he severely miscalculated this oversight for his legacy, and has transferred the golden goose of the pardon into the hands of Trump. Obama's mistake has become Trump's opportunity. This represents a dilemma for those who have sought the pardon, though there is nothing that can be done about it. The ball is now in Trump's court. Politically, the pardoning of Johnson will serve as a prelude to the pardons he is contemplating, especially for his friends facing criminal charges, and for those who have taken his loyalty oath, hoping that they will continue to be his most faithful political allies. The ironies are transparent, but the other side of the coin is that Trump may do what none of his predecessor - for whatever reasons - had the courage to do, and that is to grant Jack Johnson a presidential pardon. A bitter pill to swallow, to be sure, but there is no other in the medicine cabinet. "From even the greatest horrors," wrote H.P. Lovecraft, "irony is seldom absent." Or, to put it another way, and in a vernacular more comprehensible to the millennials, as comedian Chris Rock has said, “I do not agree with it, but I do understand. Al-Tony Gilmore, PhD, is author of Bad Nigger! The National Impact of Jack Johnson, and is Historian Emeritus of the National Education Association. He is a noted author of numerous books, and is a pioneer in the field of sports history. Contact Dr. Gilmore.




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