Why should it be? The Chief Justice's desire to set aside the indictment in 1868 was due to his opinion that the passage of the 14th Amendment made any conviction of Davis an unconstitutional violation of his 5th Amendment rights.
Had the trial been held in 1866 then Supreme Court review was nothing to fear. Since the administration was insisting on a trial by federal court instead of military tribunal then the problems uncovered by the Milligan decision wouldn't be an issue.
Chase refused to hear cases in the Virginia circuit while the state was still under military government and until habeas corpus was restored.
The trial was not held in 1866.
Since the administration was insisting on a trial by federal court instead of military tribunal then the problems uncovered by the Milligan decision wouldn't be an issue.
The Milligan problem was that the Court slam-dunked the administration 9-zip. The Judicial Branch was now in a position to reassume status as an equal branch of government. In order to have a trial in Virginia, the Executive had to somehow get CJ Chase to hold the trial.
A trial was supposed to begin in 1867. The Court convened on November 26th, but Chase was not present. The government asked for a postponement.
The Chief Justice of the Supreme Court was also the Justice of the Virginia circuit. I wonder what he was so busy doing on November 26, 1867, besides sitting somewhere giving the finger to the Executive branch.
Once he had the 14th Amendment in hand, and the 5th Amendment issue in his pocket, Chase apparently decided it was time for a trial.