Ethics, History, and Robert Redford’s “The Conspirator”

James McAvoy as Frederick Aiken, a Civil War era Ethics Hero you've never heard of.

Throughout Hollywood history, there have been actors who regularly used their screen personas to explore ethical issues: Henry Fonda, Glenn Ford, Paul Newman, John Wayne of course, Clint Eastwood, and recently, George Clooney. None of these focused their artistic attentions on ethics more sharply than Robert Redford, however, in such films as “All the President’s Men,” “The Candidate,” “The Proposition,” and “The Natural,” and he has continues his exploration of ethics as a director, in such films as “The Milagro Beanfield War” and “Quiz Show.”

Redford’s most recent film, “The Conspirator,” is another ethics movie, as well as one that explores law and American history. I am a Lincoln assassination buff, and I was eager to see the movie until I read several reviews criticizing it as a heavy-handed allegory attacking the Bush administration’s response to 9/11. Score one for the confirmation bias trap: the movie is nothing of the kind.

Conservative critics, knowing Redford’s liberal credentials, saw the movie as an effort to equate the government’s extra-legal efforts to make sure Mary Surratt hung for the crimes of her son with the excesses of the Patriot Act. One such critic noted that Redford had the accused conspirators appear in court with hoods covering their faces to evoke Abu Ghraib and the Guantanamo terrorist suspects. Uh, no…the director had them appear like that in court because that’s how they appeared in the actual trial.  Liberal critics, meanwhile, saw the government’s reaction to the assassination of Lincoln and its response to the World Trade Center and Pentagon attacks as closely related, the former implicating the latter, as if there were hardly any differences at all and Redford had uncovered the perfect historical analogy.

[Aside: Several critics faulted the film for not raising the issue of slavery, on the ground that no Civil War film should ever leave out the central issue of the war. This is idiocy. Lincoln’s assassination and the subsequent government response has nothing to do with slavery. The critics have pointed to Redford’s supposed failure to weigh in with a condemnation of slavery in a scene where Mary Surratt, refusing to implicate her son, John Surratt, who was Booth’s “right hand man,’ asks her lawyer if he has ever believed in a cause greater than himself. He angrily responds that he obviously does, having fought for four years in the Union Army. Mrs. Surratt then says that he should understand her position, and he agrees that she has her cause as he had his. But the critics have been so full of fervor for making every Civil War film an anti-slavery vehicle that they haven’t paid attention to the scene. Surratt’s “cause greater than herself” isn’t the Southern “Cause,” slavery and states rights, but motherhood, and loyalty to her son above all else. And these are the people I let persuade me not to see the movie! Will I never learn…]

Both conservative and liberal critiques were unfair to “The Conspirator,” director Redford, and potential audience members. It is a movie about law and ethics, not politics, and a nuanced, excellent one. Was Redford trying to make a 9/11 analogy? He didn’t need to try. There have been five unprecedented cataclysms in U.S. history: the Civil War, Lincoln’s assassination, the Great Depression, Pearl Harbor, and 9/11. Each called upon the government to take extraordinary steps, many of them outside the margins of the Constitution, to ensure the nation’s survival in the judgment of the decision-makers who were in the midst of each crisis. Many of those decisions, assessed in calm analysis after the fact, resulted in missteps and legal outrages. If anything, “The Conspirator” gives us a  sympathetic perspective on all of the others, by showing how difficult it is to perceive what the excesses are from the heat of a crisis.

“The Conspirator” flopped at the box office, of course. With no big stars, little “action,” and a historical theme set in one of the grayest, grimmest periods in American history, it is amazing “The Conspirator” got made at all. But Redford and his screenwriters mined a fascinating event for an abundance of historical , intellectual and philosophical issues, with a minimum factual distortion, an achievement in itself.

Chief among the historical fudges is the elevation of Lincoln’s War Secretary Stanton (well-played by Kevin Kline, but about six inches too tall and a foot too thin) to full-fledged villain status, as he is shown orchestrating a military kangaroo court to make sure “justice” against Booth’s gang is swift and terrible. The trial of the Lincoln conspirators was one of two show trials the U.S. held to send messages immediately after Lee’s surrender. The other was the war crimes trial of Capt. Henry Wirz, the hapless Confederate officer left in charge of the infamous Andersonville prison camp where union soldiers were starved and abused. Stanton had a large role in both, but he wasn’t the full-fledged puppeteer portrayed in Redford’s version of history.

Poor Stanton…for a century, conspiracy theorists have claimed that he was actively involved in Lincoln’s assassination plot, and now he is being vilified as being too harsh on the conspirators. In a complete fabrication, for example, the film shows Stanton personally strong-arming the military tribunal into changing its sentence for Mary Surratt from life imprisonment to death.

A fairer interpretation is that Stanton was doing the best he could, knowing that Washington was crawling with Confederate operatives and spies, that die-hard rebels were looking for opportunities to launch a guerrilla resistance, that nobody was sure of the extent of the conspiracy, and that he was saddled with a new President, Andrew Johnson, that he didn’t think was up to the task. Stanton is in fact one of the individuals most responsible for getting the United States out of the Civil War in shape to function at all, the MVP of Lincoln’s Cabinet. He deserves better treatment from history.

The slander on Stanton is compensated for by the film’s focusing a long-overdue spotlight on a true American hero that has been neglected by history. He is Frederick Aiken (portrayed by James McAvoy), the wounded Civil War veteran and young attorney who took on Mary Surratt’s defense in an act as courageous as John Adams’ representation of the British soldiers accused in the Boston Massacre. Aiken represents the very best traditions of American lawyering, defending an unpopular and reviled figure, not because he admired or wanted to see her escape the consequences of her acts, but because she was guaranteed a fair trial as an American citizen, and had to be proven guilty beyond a reasonable doubt.

Mary Surratt was  convicted and executed based on the testimony of two dubious witnesses and weak circumstantial evidence, and was not permitted to testify in her own defense, as guaranteed by the Constitution.  In the scene where Aiken asks a federal judge to sign a writ of habeas corpus to compel a civilian trial for Surratt, the judge asks Aiken if he really believes she is innocent. The young lawyer replies that he doesn’t know. It doesn’t matter. She hadn’t been proven guilty in the manner constitutionally guaranteed to all citizens, even ones who keep the boarding house where John Wilkes Booth made his plans. That was what mattered.

Aiken’s ringing and defiant defense of the beyond a reasonable doubt standard in his summation to the court can be read here. As a special surprise revelation at the end of the film, we learn that the lawyer went on to become the first city editor of the Washington Post—a link to Woodward and Bernstein that must have pleased Redford greatly.

Among the other difficult ethical issues raised by both the historical event of Surratt’s trial and Redford’s telling of it:

  •  When, if ever, is a government justified in waiving or violating its core principles to ensure its survival?
  •  Is the citizen, lawyer or elected official who opposes such measures—even if he or she believes they are necessary for survival—an idealist, a hero, a patriot or a fool?
  •  When do personal needs become professional conflicts of interest?
  • How much can or should war alter legal procedures, constitutional protections, and founding principles, if at all?
  • Should family loyalty trump duty to the law and country?
  •  How misleading is it for an artist to use historical events as an analogy or metaphor for more current events, especially when they are separated by many years?
  •  Is it fair to distort the historical role and reputations of real figures in the interest of drama and entertainment, especially those not alive to defend themselves? Are there any limits on this at all?
  • Is an unjust legal proceeding excusable if it achieves the right result? For it is overwhelmingly likely that Mrs. Surratt was sufficiently knowledgeable of the assassination plot that she deserved her sentence, just as the other controversial conspirator, Dr. Mudd, almost certainly deserved his.

Robert Redford’s “The Conspirator” has both historical and contemporary value, and he deserves plaudits for making a serious and thought-provoking movie…about ethics.

As usual.

3 thoughts on “Ethics, History, and Robert Redford’s “The Conspirator”

  1. Pingback: Ethics, History, and Robert Redford's “The Conspirator” | Ethics Alarms | The Lincoln Movies

  2. ‘THE CONSPIRATOR’ is now playing until this Sunday in the Maverick 4 Theaters in Mankato, Minnesota. I think this is it’s last picture show…
    It returned less than half it’s budget of 25 million dollars. The public can
    be blissfully neglectful instead of semi-worshipful of gravitas at times…

  3. Thanks for the recommendation on the movie. I bought it and watched it last night. I especially liked the way they handled the question of Mary Surratt’s guilt or innocence. For me personally the movie reinforced my belief that she was guilty. But at the same time it brought out that she was being railroaded and that her guilt had been decided on beforehand.

    I too thought the part where Stanton says he was going to change the tribunals mind on her death penalty was heavy handed also. I also wish that Gen Hancock’s role had been shown at the end concerning the Writ and how all that played out.

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