Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy (17 page)

Troubled, Johnson summoned the commander of the Washington garrison, General William Emory. In an exchange that would become the basis for the least persuasive impeachment charge against him, Johnson asked the general whether there had been any changes in the disposition of his troops. Emory described some reassignments over the preceding several months, which were of no interest to the president. He meant any changes in the last twenty-four hours. Assuring Johnson that there had been no troop movements so recently, Emory added that by statute he could receive orders only through General Grant, not directly from the president.

Rumors continued to swirl through the agitated city. General Emory, a Marylander, was feared to be under the influence of South-leaning relations and friends. Navy Secretary Welles was supposed to have offered to march 500 marines to the White House to defend the president. Maryland’s governor visited the White House, renewing fears of the Maryland militia. Senator Ben Wade of Ohio, next in line for the presidency, was reported to be “vibrating between the War Department and General Grant’s headquarters, with an air of profound and ominous distraction.”

The president gave another placid interview to a pet reporter, professing utter indifference to the prospect of impeachment. In private, Johnson betrayed intense anxiety. Twice the president sent a junior secretary to the floor of the House to gauge the likely vote on impeachment. Johnson insisted that his course was the right one, that “if he cannot be President in fact, he will not be President in name alone.”

The president conferred with Attorney General Stanberry and Navy Secretary Welles, urgently seeking a way out of the tempest. Stanberry suggested another candidate to be war secretary: Thomas Ewing, his former law partner and father-in-law to General Sherman. Ewing, a conservative Republican in his late seventies, known to everyone in Washington, might win Senate confirmation. Johnson, desperate, agreed. Colonel Moore tried to deliver Ewing’s nomination papers to the Senate, but the chamber had closed. More than two-thirds of the senators were watching the debate in the House. The Senate never did take up the Ewing appointment, which dropped from sight after a few days.

With the battle lines drawn between the president and Congress, Johnson entertained two visitors who were unknown to the public and have remained obscure since. In different ways, Sam Ward of New York and Perry Fuller of Kansas exemplified that Washington species that thrives at the intersection of power and money. Never holding office themselves, they represented pools of wealth whose fortunes were tied to the continuation of Johnson in office. Joining with a passel of like-minded political fixers, Ward and Fuller would help apply money—the universal lubricant of politics—to save the president.

As an historical figure, Sam Ward ranks somewhere between implausible and preposterous. Born to an aristocratic banking family in New York City, by his mid-forties he had burned through two marriages (one to an Astor heiress), several careers (including spells as literary agent for Henry Wadsworth Longfellow), and a fortune. Wealth, in any event, was a temporary condition for someone with Sam Ward’s rich tastes and narrow attention span.

In middle age, Ward started anew as a Washington lobbyist. Always a pro-South Democrat, he flourished in the Johnson years and was acclaimed as the “King of the Lobby.” Ward’s client list featured foreigners worried about tariffs, bankers and gold traders eager to anticipate Treasury policies, and the kingpin of New York’s gambling and lottery businesses. He won greatest fame as the host of brilliant dinners. Ward’s European education and savoir-faire added to his luster, as did the salacious reports of his cross-dressing mistress, or “protégé,” back in New York. He charmed Washington with his grand style, quick wit, and amiable rotundity. One newspaper gushed that Ward “has been all over the world,” had mastered multiple languages and published poetry, “shipped before the mast, and knows every considerable public man in the country. He drinks only champagne, buys gold at the rate of fifty thousand at a stroke, [and] wears good clothes….”

Yet Sam Ward was no mere bon vivant, guilelessly amusing his guests at ever more extravagant meals. He understood how cash and patronage eased the gears of government, particularly for the horde of crooked federal tax collectors in New York, where the thriving seaport and flourishing whiskey business generated waves of bribes and kickbacks. One newspaper acknowledged Ward’s worldly side, proclaiming that the New Yorker had “a peculiar faculty of coming in at back doors and by private staircases.”

At dinner with a group of Democrats on February 22, 1868, Ward learned of Johnson’s failed attempt to place Lorenzo Thomas in charge of the War Department. Ward immediately prevailed upon the secretary of the treasury, Hugh McCulloch, to give him an introduction to the president.

The president received Ward late that evening. Johnson had endured a stressful day, capped off with a diplomatic dinner and reception. In their late-night interview, according to Ward, he advised the president “to secure the ablest counsel, half Democrats and half Republicans.” Though this was surely good advice, Ward’s true contribution to the president’s defense was yet to come.

Perry Fuller of Kansas spent the following evening, February 23, at the White House with the Democratic National Committee. Fuller had nothing like Sam Ward’s refinement, but a lot more money. In the Kansas of the 1860s—ten years before Wyatt Earp cleaned up Dodge City—politics was a bare-knuckled fight for prime feeding spots at the public trough. Perry Fuller had staked out some of the best.

Fuller stole most of his wealth from Indian tribes and from government programs to help them. He sold bad liquor, cut timber pilfered from Indian land, and supplied beef rustled from reservations. He also helped tribes sell their land to railroads at bargain basement prices while his trading company grew fat on Indian supply contracts that federal officials denounced as “outrageous swindle[s].” Cherokee Chief John Ross accused Fuller and his partner of “corrupting everything on that [Kansas] frontier.”

Once he grew rich, Fuller purchased enough votes in the Kansas Legislature to elect both of the state’s senators. (Senators were chosen by state legislatures until the Seventeenth Amendment was adopted in 1913.) As one Kansas trader wrote dryly, when it came to the two Kansas senators, plus one from Nebraska, Fuller “by some mysterious influence can get them to favor all of his projects.” Fuller was “the virtual gatekeeper of the Indian office” at the Department of the Interior. In a Supreme Court case, a clerk in the Indian office could not explain how he came to have $45,000 (at least $630,000 in present value), alleged to be bribes from Fuller. Fuller had big ambitions. He was pressing Johnson to appoint him as commissioner of internal revenue, a mouth-watering opportunity to sit atop the pyramid of crooked tax collectors. To prove his dedication to Johnson’s cause, Fuller had paid $7,000 (more than $100,000 in today’s dollars) to underwrite the abortive National Union Convention in August 1866 and was pledging to support the struggling pro-Johnson newspaper in Washington City.

“Smooth faced, shrewd, large, ‘paunchy,’…repulsive at a second examination,” Fuller left behind no record of his conversations at the White House on February 23. Such a large affair would afford few opportunities for intimate talk of sensitive matters. In any event, Fuller did not like to leave tracks. Like Sam Ward, the Kansas Indian trader had skills that would prove useful during the next ninety days of hand-to-hand combat over who would be president, and what course the nation would follow.

With the House of Representatives in recess on that Sunday, February 23, passions ebbed slightly. Cold temperatures kept many indoors, though sensational rumors continued to rocket through barrooms and lobbies. Stanton received adherents at the War Office, while letters and telegrams of support poured in. Adjutant General Thomas, feeling ill after two difficult days, chose not to drop by.

Johnson huddled at the White House with Attorney General Stanberry and Secretary of State Seward, exploring schemes to divert the confrontation into the courts. Perhaps Stanton had outsmarted himself by having Thomas arrested. Maybe Thomas’s case could be a vehicle for a court ruling on whether the Tenure of Office Act was constitutional. Attorney General Stanberry prepared a response to the Senate resolution that had denied the president’s power to fire Stanton.

On Monday morning, the excitement returned with a wet and gloomy snow. Guided by military patrols, crowds converged on the Capitol early. The building’s rotunda filled with sightseers. From ten in the morning until six at night, the House galleries bulged with citizens eager to know the president’s fate. Though a somber decorum prevailed during debate, the harsh jeremiads against the president continued, occasionally interrupted by fierce challenges to the impeachers. Incendiary language, delivered with dignity, was the order of the day.

Stevens, who sat through the day’s proceedings in a special chair next to the Speaker’s podium, rose after the sun had set. Stepping unsteadily into the well of the House, supported on a cane, Stevens paused with a showman’s assurance, allowing the silence to gather weight. Congressmen sidled closer to him. Every ear in the gallery strained to hear. Stevens struggled to begin his speech. As an observer noted, he plainly ached to “perform a duty which he felt belonged to himself alone.” After a few words that almost no one could hear, Stevens gave up. He handed his speech to the House clerk to be read for him.

The speech insisted that impeachment was a political remedy and recited Johnson’s violation of the Tenure of Office Act. Stevens added a unique charge against the president, accusing him of attempted bribery when he offered to pay any fine levied on General Grant for violating the statute. God, he told his colleagues, would hold them responsible for their votes. They were choosing between a continent “filled with free and untrammeled people” and one that was “a nest of shrinking, cowardly slaves.”

The vote overwhelmingly favored impeachment, 126 to 47, with 17 not voting. No Republican voted “no”; no Democrat voted “yes.” When the tally was announced, the onlookers exchanged whispers and meaningful looks, awed by the gravity of the moment.

The House Speaker, Schuyler Colfax, appointed Stevens and John Bingham of Ohio to deliver the resolution to the Senate. He also named a committee to prepare articles of impeachment. Stevens, Boutwell, and Bingham were on it, along with James Wilson of Iowa (the Judiciary Committee chairman who led the fight against impeachment ten weeks before) and John Logan of Illinois (and of the GAR).

The president received the news calmly. It was no surprise. Stanton rejoiced over the bulletin, but all was not well in the Stanton family. Realizing he might be living in his office for some time to come, the secretary sent a sergeant to his home for food, clothes, and bed linen. Mrs. Stanton refused to provide any of it. She instructed the sergeant to tell her husband to resign immediately and come straight home.

Thus obstructed to an extent that Lorenzo Thomas had never managed, Stanton asked the sergeant to retrieve the necessaries from the sergeant’s home. They prepared an Irish stew in an office fireplace, but the dish burned when they fell asleep. On the following afternoon, a pleading note from the war secretary brought Mrs. Stanton back to the curb outside the War Office. Seated in her carriage, they continued their quarrel until she drove off in a renewed rage. Not for several more days would Mrs. Stanton be reconciled to her husband’s self-imposed exile from home.

Personal problems aside, the impeachers were riding high, while Johnson loyalists were heartsick. Sam Ward predicted the president’s immediate ouster. “Make your calculations upon having Ben Wade for president by the 30th of March,” he wrote. “There is more volcanic danger today than when South Carolina seceded.”

For now, the action would be in the House of Representatives. Three days after Lorenzo Thomas tried to take control of the War Department, the House had voted to impeach Andrew Johnson. Now the congressmen had to decide what they were impeaching him for.

If he was impeached for general cussedness, there would be no difficulty in the case.

S
ENATOR
W
ILLIAM
P
ITT
F
ESSENDEN
, M
ARCH
1868

E
VERY EYE FOLLOWED
Thad Stevens as he limped down the center aisle of the crowded Senate chamber on February 25, 1868. Stevens’s countenance was stony, his gaze defiant. His mission that day was unique. He was about to announce that the House of Representatives had voted to impeach the president. Though sick and stooped at seventy-five, Stevens could radiate a fearful intensity, a “will of inherent and uncommon might.” His “brilliant eye,” wrote one correspondent that evening, “spoke of a strength within equal to the Waterloo struggle before him.” Stevens’s resolve to oust Johnson hardened daily. The president, he intoned with extravagant hyperbole, “is guilty of as atrocious attempts to usurp the liberty and destroy the happiness of this nation, as were ever perpetrated by the most detestable tyrant who ever oppressed his fellow men.”

The Senate galleries overflowed with spectators as snow swirled outside. Most of the 54 senators and 185 congressmen wedged themselves into the chamber. An eerie silence descended at 1
P.M.
as Stevens and John Bingham of Ohio made their way toward the podium, then stopped. For a long breathless moment, the anxious throng watched the pair standing before Ben Wade of Ohio, president pro tempore of the Senate. The rough-hewn Wade would take over the White House if Andrew Johnson were deposed. Stevens and Bingham wore somber black, contrasting with the flaming reds and yellows of the Senate’s decor. The falling snow dimmed the skylight overhead, but the glow from gas jets was bright.

It was a moment for reflection on the nation and its president. Having begun in the tragedy of Lincoln’s assassination and the euphoria of victory over the Confederacy, Andrew Johnson’s term in office seemed a freakish catastrophe. Years of public truculence and private intransigence had led him, and the nation, to this point. Now the House would prosecute him before the Senate for high crimes and misdemeanors. If the upper house convicted by a two-thirds majority, Johnson would be the first president ever ejected from office.

Stevens and Bingham deliver the impeachment resolution to the Senate, February 25, 1868.

Recognized by Senator Wade, Stevens surprised the crowd by answering in a strong voice. He invoked the authority of the House of Representatives and the people of the United States, then announced, “We do impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors in office.” With no trace of embarrassment, Stevens added that the House “in due time” would deliver “particular articles of impeachment and make good the same.” In other words, Johnson had committed high crimes and misdemeanors, but the House had not yet decided which ones to pursue. Wade appointed a committee to receive specific charges when the House adopted them.

Stevens and Bingham withdrew. The old man rode in a chair, carried by two brawny attendants, back to the House side of the Capitol. There the two congressmen reported what they had done. Then Stevens lay down to rest in a nearby room.

The House impeachment committee was already working, having first met the day before. The committee members braved a Washington snowstorm that the
Chicago Tribune
interpreted politically as a reminder that “there is a North, pure, bright, and cold as justice.” A subcommittee of the usual impeachment hands—Stevens, Boutwell, Bingham, and Wilson—began to assemble the evidence and draft articles of impeachment.

Taking over the Capitol room of the House Judiciary Committee, the subcommittee set a brisk timetable: articles to be released in two days, then approved by the House and presented to the Senate in six days. As described by Stevens in an interview, the subcommittee’s procedure reflected the egotism of its members. Each was preparing his own impeachment articles, which the subcommittee would sort through and aggregate. This approach, Stevens admitted, risked disagreements over each member’s favorites, but he hoped for the best. Asked if he still despised moderate Republicans as cowards, Stevens declared, “No, they are not cowards now because they have been pushed to the wall and are fighting like brave men.”

The collision in the Capitol, one correspondent recalled, riveted the nation and “stirred the whole North to its very depths.”

With political momentum on their side, the impeachers leaned into the task. On Wednesday, February 26, they took testimony from Lorenzo Thomas, from General Emory, head of the Washington garrison, and from Emory’s second-in-command. The facts, though, were not in dispute. The principal arguments would be legal ones: What did the president intend when he sent Lorenzo Thomas to the War Office? Did his actions, combined with his intent, constitute an impeachable offense? What did the Tenure of Office Act really mean?

The subcommittee struggled to reach agreement. Some wanted only three impeachment articles. Others proposed five or six. A visitor to their deliberations found Stevens and Bingham arguing. “Both are profane,” the visitor recorded in his diary, “but Stevens is especially so.” Looking thin and haggard, the Pennsylvanian sipped wine or brandy through every drafting session, pushing the work along, the “ruling spirit” of the group.

The pressure to add articles grew stronger. The list reached six, then eight. They would not include any charges from the November impeachment report that the House had rejected. Reviving those claims, the
New York Times
reported, was deemed “fatal to the moral and legal effect of the prosecution.”

Johnson had one last ploy for avoiding impeachment: He hoped to take the starch out of the Republicans by submitting key legal issues to the courts, starting with the constitutionality of the Tenure of Office Act and whether he had the constitutional power to remove Stanton. Shouldn’t the Supreme Court, rather than the partisan Senate, decide those issues?

The press filled with predictions that the attorney general would file a lawsuit raising those questions, but the problem with this strategy was time. A lawsuit would take too long. It would start before a single district court judge in Washington City, followed by an appeal to the full district court, which could not act until May. That court’s decision would not be reviewed by the Supreme Court until December. No one thought the proceedings could be expedited, which meant that no decision could issue until after the presidential election, a few months before Johnson’s term of office expired. The Senate impeachment trial would end long before then.

Johnson’s team figured out a shortcut, one that could take advantage of Stanton’s lawsuit against Thomas. If Judge Cartter kept the adjutant general on bail, or under any form of restraint, Thomas could demand a writ of habeas corpus directly from the Supreme Court. Then the eight justices—at least five of whom were reckoned favorable to the president—could decide the constitutionality of the Tenure of Office Act. With luck, that decision would come before a Senate trial ended.

Edwin Stanton, barricaded in the War Office, performed the same legal analysis. Though Stanton doubtless had enjoyed the spectacle of Thomas under arrest, the war secretary was not sentimental about legal strategies. If prosecuting Thomas could thwart impeachment, he would abandon the case.

Thomas appeared in Judge Cartter’s chambers at 10
A.M.
on Wednesday, February 26. When his lawyer asked for a writ of habeas corpus, Stanton’s lawyer moved to drop the prosecution. After all, he explained, the adjutant general no longer threatened to take the War Department by force. The ploy forced Thomas’s counsel to insist that the prosecutor must proceed against his client, an awkward argument for any defense lawyer. The judge had no trouble dismissing the matter. When Thomas called for his mail at the War Department a day later, he complained he had been “euchred…again.”

Thomas’s days took on a depressing routine. He presented himself to the president in the morning. If Johnson was feeling combative, he directed Thomas to demand control of the War Department. The adjutant general would trudge over to Stanton’s office, make the demand, be denied, report his failure to the White House, and return home. If the president felt less aggressive or was involved in other business, Thomas was allowed to call quietly at the War Department for his mail and then head home. Sometimes he stopped to confer with his lawyers. As the Radical
Philadelphia Press
wrote with glee, he “receives for this arduous duty the salary of a brigadier general.” Stanton had locked the adjutant general’s office at the War Department, denying Thomas the key until he agreed to perform that job, and that job only. Thomas, Johnson’s pawn in the game, could not accept those terms.

Thomas sued Stanton for wrongfully denying his right to be interim war secretary, demanding $150,000 in damages. The case was destined for that limbo where insincere lawsuits drift. Johnson could not shift into the courts the fight for his political life. The battle would be in the Senate, on impeachment articles approved by the House of Representatives.

When George Boutwell of Massachusetts rose in the House on Leap Day—Saturday, February 29—the novelty of impeachment was wearing off, but the thrill remained. Once more, the galleries overflowed with fascinated citizens of both races and both sexes. Again, the House of Representatives was poised to do something for the first time in history: it would debate what specific charges should be lodged against a president it already had impeached.

Boutwell presented ten articles of impeachment. As the clerk read them aloud, confusion spread. The articles were a jumbled horror. Having failed a few months before with broad and amorphous impeachment allegations, the impeachers had careened to the other extreme, keeping their focus painfully narrow and obscurely legalistic.

The first nine articles addressed only the Thomas-Stanton confrontation, dissecting it into overlapping allegations of “high misdemeanors” and “high crimes.” The House would not deploy impeachment as a political remedy, but would pursue it as an ersatz criminal prosecution. As
The Nation
observed, Johnson was impeached because he had finally “committed a distinct and palpable violation of the law,” though the offense of firing Stanton was not “by any means the worst in a moral point of view.”

This strategy raised problems. Shrinking the scope of the articles seemed to cheapen the enterprise. The impeachers were reduced to charging the “great criminal of the age”—the man who betrayed the sacrifice of Union soldiers while abandoning the freed slaves to lives of want and oppression—with misapplying a personnel statute. To make these small-gauged articles seem proportionate to Johnson’s enormous crimes, the impeachers charged his misstep as nine separate violations that grew more mystifying as they multiplied. The strategy was unnecessarily complex. It would take only one successful impeachment article to remove the president. Having many overlapping allegations would do the prosecution no good.

The first article charged Johnson with violating the Tenure of Office Act when he dismissed Stanton; the second alleged that he violated the same law by appointing Thomas as interim war secretary. Those two articles might seem redundant—mirror images of the same violation—but at least they could readily be understood. The real trouble started with the third article, which charged Johnson with unconstitutionally appointing Thomas to a position that was not vacant. Only unadorned hairsplitting could distinguish this allegation from the one before it.

Serious incoherence set in with the next five charges, all alleging conspiracy between Thomas and Johnson. Article IV alleged that Johnson violated the federal conspiracy law when he agreed with Thomas to drive Stanton from office, while Article V charged that the same conspirators attempted to use
force
to the same end, in violation of the Tenure of Office Act. The sixth stated that the same conspiracy violated both statutes; Article VII alleged a conspiracy to violate the Tenure of Office Act
without
using force. Citizens in the House galleries had to be scratching their heads.

The eighth article repeated the conspiracy motif, this time charging that Johnson and Thomas conspired to seize the
property
of the War Department. Article IX charged the president with firing Stanton for the purpose of gaining control over War Department funds. The modern mind paces nervously around these last two articles. Isn’t the president
supposed
to have control over government property and funds?

Happily for those in attendance, the final article was on a different subject; unhappily for the impeachers, it had no foundation. Article IX concerned President Johnson’s meeting with General Emory on February 22, just the week before, during which he asked about the disposition of federal troops in Washington City. The article charged Johnson with instructing Emory that the Constitution invalidated the statute requiring all army orders to pass through General Grant. That Emory’s testimony would not directly support the allegation, and that the president might be entitled to state his opinion on the subject, had not deterred the impeachers.