A military tribunal heard the case, and Vallandigham offered no serious defense against the charges. He contended that military courts had no jurisdiction over his case. The tribunal found Vallandigham guilty and sentenced him to remain in a United States prison for the remainder of the war.
Vallandigham's attorney, George Pugh, appealed the tribunal's decision to Humphrey Leavitt, a judge on the federal circuit court. Pugh, like his client, claimed that the military court did not have proper jurisdiction in this case and violated Vallandigham's constitutional rights. Judge Leavitt rejected Vallandigham's argument. He agreed with General Burnside that military authority was necessary during a time of war to ensure that opponents to the United States Constitution did not succeed in overthrowing the Constitution and the rights that it guaranteed United States citizens.
As a result of Leavitt's decision, authorities were required to send Vallandigham to federal prison. President Lincoln feared that Peace Democrats across the Union might rise up to prevent Vallandigham's detention. The president commuted Vallandigham's sentence to exile in the Confederacy. On May 25, Burnside sent Vallandigham into Confederate lines.
Some historians have viewed General Order No. 38 as Burnside's personal attack on Vallandigham. While Burnside clearly objected to his views, the general was not personally targeting Vallandigham. Numerous Ohioans, especially those with family members living in or economic ties to Confederate states, openly objected to the war. Other Union military commanders issued similar orders. Burnside attempted to restrain all Confederate sympathizers residing in the Department of Ohio with General Order 38.
Critics of General Order No.38 commonly argued that this and several other actions by the Union government violated Americans' civil liberties, including the writ of habeas corpus and freedom of speech. The Union's actions clearly restricted freedoms that most Americans held dear in the 1860s and many hold dear still today, yet Union officials sought to preserve the Union, even if that meant a temporary suspension of these fundamental rights.