Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy (9 page)

Not only was the general-in-chief intransigent, but General Sherman also refused to take Grant’s place at the head of the army. “[T]he President was aiming to get Grant out of the way, and me in,” Sherman wrote to his senator brother, “on the supposition that I would be more friendly to him.” To his wife, Sherman wrote, “I will be a party to no such move.” Defied by his generals, the president backed down. He sent Sherman on the mission to Mexico.

Each new incident built Republican frustration with the president. Some began to cast about for a bloodless method for ridding the nation of this dangerous president, an inquiry that led directly to the impeachment clauses of the Constitution. Though no president had been impeached in the nation’s first eight decades, perhaps impeachment could be the tool for removing Johnson peacefully.

Radical newspapers started impeachment talk in the spring of 1866. When he denounced Johnson’s official appointments in late May, Stevens issued a menacing warning, stating that “there is a grand inquest of the nation before whom men who are guilty of malpractices in office can be brought and their cases presented to another tribunal which would try them.” By the end of the summer, Stevens was wondering whether Johnson’s “corrupt” patronage practices could support impeachment. Another congressman countered that Johnson should be impeached “for his attempt to [i]ncite the people to revolution” by calling Congress “a usurping & illegal body.”

Perhaps fittingly, an early call for impeachment came from former Vice President Hannibal Hamlin of Maine, who had lost his job—and his chance at the presidency—to Johnson. After resigning in early September from his position as collector of the Port of Boston, Hamlin challenged Johnson’s “usurpations” in creating the Southern state governments and his association with rebels and Copperheads. “Did we fight down the rebellion,” Hamlin asked, “to give the South more power?”

Former General Benjamin Butler of Massachusetts, who was about to claim a seat in Congress, took up the impeachment cry with a vengeance, speaking throughout the fall campaign of 1866 on the need to remove President Johnson. Before a Brooklyn crowd of 3,000 in late November, he denounced “King Andrew the Indecent,” and presented a laundry list of “charges” against him: that Johnson wrongly granted pardons to rebels, incited the New Orleans massacre, failed to confiscate Confederate property, delivered “inflammatory and dangerous harangues” (also one of Butler’s favorite activities), and usurped congressional powers by unilaterally establishing state governments in the South.

The talk of impeachment reflected many factors that combined to cripple Johnson’s presidency. In a decade that already featured secession and civil war, political leaders in the 1860s did not shy from extreme remedies. Extreme actions seem less extreme as they become part of the ordinary experience of life. Johnson’s political messages—that the South must be left alone to define itself, and that the Constitution barred federal actions to the contrary—carried disturbing echoes of Southern political rhetoric before the Civil War. And then there was Johnson himself. For many Northerners, his most basic qualities made him seem unworthy of the presidency at that moment in history. He was a Southerner, but the South had lost the war. He was a Democrat, but that party had not supported the war. He defended states’ rights theories that had supported secession and civil war. He was rigid and angry, unwilling to compromise, at a time when the nation had to be united. And many thought of him as a drunkard. It was a ruinous combination.

Passions still ran high when Congress gathered in early December. Pointing to the Republican electoral sweep, Stevens announced he had been “rather conservative last winter, but is now Radical, and expects to continue so the remainder of his days.” Though some laughed at the Pennsylvanian’s tongue-in-cheek conversion, Stevens meant every word. He wrote coldly in one letter that with the president “still unhung,” Congress needed “to look a little after the hemp.” To another Radical, he observed there was great work to do “if we are brave enough! Yes, there is the rub. And how few brave men are there?”

Despite the growing opposition, President Johnson still had no appetite for compromise. His annual statement to Congress, delivered in early December, again called on Congress to admit the representatives from the Southern states. It conspicuously failed to endorse the pending Fourteenth Amendment.

With both sides digging in deeper, the political war could only escalate.

I do impeach Andrew Johnson, Vice President and President of the United States, of high crimes and misdemeanors. I charge him with a usurpation of law and violation of law:

In that he has corruptly used the appointing power;

In that he has corruptly used the pardoning power;

In that he has corruptly used the veto power;

In that he corruptly disposed of public property of The United States;

In that he has corruptly interfered with elections….

R
EPRESENTATIVE
J
AMES
M
.
A
SHLEY,
J
ANUARY
7, 1867

W
HEN THE LAME-DUCK
Congress convened in early December 1866, the nation seemed to be sliding backward. The blessings of peace were proving disappointing. Partisan and sectional resentments seemed to be growing. “[T]he great war of the Rebellion,” a French observer wrote, “though it is over in the military sense, still goes on in men’s minds.” He added, “The hatred of the South for the North is more bitter than ever.”

In this toxic atmosphere, several Radical Republicans demanded a special committee to investigate impeachment of the president. Meeting resistance within the Republican caucus, Representative James Ashley of Ohio agreed with Stevens to present an impeachment resolution to the full House. Called “a calculating fanatic” by Navy Secretary Welles, Ashley accused the president of usurpation of power by making corrupt appointments, issuing pardons to rebels, selling off confiscated property, vetoing legislation, and interfering with elections.

Stevens, persuaded that real Reconstruction was impossible with Johnson in office, provided the muscle behind Ashley’s resolution. When the House referred it to the Judiciary Committee on January 7, Congress was daily receiving petitions that demanded Johnson’s removal from office. The petitions, the fruits of an organized campaign, were signed by as few as three citizens or as many as three hundred. They poured in throughout 1867, mostly from the Midwest.

The new Congress mounted a furious legislative assault on Johnson and his policies. Over the president’s veto, it approved Negro suffrage in the District of Columbia. Legislation admitted Colorado and Nebraska as new states—holding out the prospect of more Radicals in Congress—only to meet with presidential vetoes. Nebraska but not Colorado made it past Johnson’s roadblock.

Two audacious new laws aimed to curb presidential powers. The first came from inside the president’s official family. When Congress convened in December, Edwin Stanton invited George Boutwell, the Radical congressman from Massachusetts, to a private room at the War Department. Pronouncing himself more concerned about the nation’s fate than he had been during the Civil War, Stanton dictated legislation that would make it a crime for the president to issue military orders that did not go through the General of the Army (Grant). Boutwell brought Stanton’s language to Stevens, who placed it in the military appropriations bill for the year. Though Johnson intended to veto the bill, and with it the army’s budget, his Cabinet persuaded him to sign the legislation in order to ensure military funding. The president asked Stanton for his advice on this legislation—which the secretary of war himself had drafted to hamstring the president. Stanton’s reply was cool: “I approve your taking whatever course you may think best.” Johnson lost power under the new law, while Grant gained it.

For some time, Stevens had been urging a second key statute, the Tenure of Office Act, which would become the centerpiece of the impeachment charges against the president. Under the legislation, the Senate would have to concur in the firing of any executive official whose appointment the Senate had confirmed in the first place.

Stevens’s bill addressed one of the asymmetries of the Constitution. The Framers in 1787 required Senate confirmation of presidential appointees, but the charter was silent about who could remove those officials. With no direction from the Constitution, the power to fire executive officials could be lodged in the president or could be made subject to Congress’s power to make the laws. Early statutes gave the president the right to discharge those officials without any action by the Senate. Did that mean Congress could specify different removal procedures, as Stevens now proposed to do? Or did it mean that the president always had the power to discharge executive officials? The argument had continued for decades and would be rehashed repeatedly over the next eighteen months. Indeed, it continued through the rest of the nineteenth century and into the twentieth, with parts of it unresolved to this day.

When Congress took up Stevens’s statute in March, debate focused on Cabinet appointees: should the Senate have to concur when the president wanted to dismiss a member of his Cabinet? Congressional Republicans disagreed among themselves. Stevens and his allies, hoping to protect Stanton at the War Department, pressed for the statute to cover Cabinet members; others worried that no president should have to retain a department head in whom he had no confidence. In a muddled legislative sequence, the House and Senate disagreed on the issue, then adopted compromise language that did not clearly resolve it. This question, too, would be the subject of exhaustive debate during the impeachment trial.

That Johnson would veto the Tenure of Office Act was a foregone conclusion. More surprising, though, was Edwin Stanton’s advice that he do so. Even though the law was partly designed to keep him in office, the war secretary was “very emphatic” that it unconstitutionally limited the president’s powers. Indeed, Stanton helped draft the veto message. As was becoming routine, Congress enacted the bill over Johnson’s veto.

Although the statute was intended to block the president from removing Republican officials, which it certainly did, it also shrank the powers of Johnson’s successor in the White House. That
next
president would be able to appoint new Cabinet officers on his own, but he would have to seek the concurrence of the Senate in order to replace any other executive official. The perverse result of the statute would be to allow Johnson appointees to burrow deeply into the bureaucracy so long as they retained the favor of the Senate.

In addition, Stevens set an obvious trap in the statute. Section 6 of the new law stated that appointments or removals that violated the act were “high misdemeanors,” echoing the “high crimes and misdemeanors” language of the Constitution’s impeachment clause. Stevens and Congress were placing Johnson on notice. If he violated the Tenure of Office Act, he would risk impeachment.

Stevens pushed Congress to do away with the Johnson-sponsored governments in the Southern states. Staffed by many former rebels, those state governments maintained black codes and ignored white violence against the freedmen. Over the next several months, Congress enacted three Reconstruction laws that would sweep out those state governments after less than two years in existence. Under this new phase of Reconstruction—called “congressional reconstruction”—Southerners would again call statewide conventions to draft new constitutions. When new governments were established under the new constitutions, they could petition for readmission of their representatives to Congress. This time, many ex-Confederates would be excluded from the process. Unionists and freedmen would be encouraged to participate. The legislation also reinforced the Army’s position in the South.

In this welter of political activity, the House Judiciary Committee pursued its inquiry into whether Andrew Johnson should be removed from office. This was the ultimate constitutional confrontation, one branch of government considering whether to decapitate another. All the anger and self-righteousness of the Civil War returned, but in a new garb. Instead of North versus South, now Congress was facing off against the president. There were few precedents to follow, and the committee members had difficulty defining exactly what they should be investigating. Pursuing a scattershot and often superficial course, the committee’s performance would not inspire confidence, even among Republicans.

Impeachment dates back at least to fourteenth-century England. Rooted in the struggle for power between Parliament and kings, impeachment was a device for prosecuting great lords and high officials who were beyond the reach of the law courts. British impeachments carried heavy penalties, including fines, imprisonment, and beheading. Though the British mostly abandoned impeachment by the nineteenth century, the process involved charges brought by the House of Commons, followed by trial in the House of Lords.

The delegates to the Constitutional Convention in 1787 created an American version of impeachment. They wanted a peaceful means for Congress to remove judges and executive officials, including the president. Otherwise, as Ben Franklin pointed out, assassination was the only way to rid the nation of a bad president.

The Constitution devotes seven sentences—about 180 words—to impeachment. First, the House of Representatives has “the sole power of impeachment,” which means that all impeachment charges must originate in that body. By custom, once the House approves those accusations (called “articles of impeachment”), it appoints several of its members (called the “House managers”) to prosecute the case in the Senate.

The Senate has “the sole power to try all impeachments.” To hear that trial, senators must take an oath; by its own rule, the Senate requires the oath to be a pledge to “do impartial justice according to the Constitution and laws.” When the president is the target of impeachment, the chief justice of the United States presides over his trial. If two-thirds of the Senate votes to convict the accused on any single impeachment article, he is immediately removed from office. No president can absolve an impeachment conviction by granting a pardon. The removed official can also face criminal prosecution for any offenses he or she has committed.

The greatest puzzle of impeachment has been the definition of those actions that warrant its use. The Constitution authorizes impeachment for “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery have proved clear enough, but a crisp definition of “high crimes and misdemeanors” has eluded generations of scholars. The term was proposed in a late debate on the impeachment mechanism during the Philadelphia Convention in 1787. George Mason of Virginia complained that the draft impeachment provision was limited to treason and bribery. “Attempts to subvert the Constitution,” he pointed out, “may not be treason.” He proposed to add “maladministration” as a basis for impeachment. James Madison criticized that term as too vague, so Mason substituted “high crimes and misdemeanors,” to the vexation of succeeding generations.

The rejection of Mason’s initial proposal of “maladministration” suggests that mere incompetence is no basis for impeachment. Some have insisted that an impeachable offense must violate a criminal statute; after all, treason and bribery are crimes, and “high crimes and misdemeanors” certainly
sound
like crimes. Others have argued that “
high
crimes” and “
high
misdemeanors” refer to betrayals of official trust, what Alexander Hamilton in his
Federalist
essays called “abuse of executive authority” and “malconduct.”

The uncertainty surrounding this question reflects the mixed nature of impeachment. It is fundamentally a political action. The accused suffers no consequence other than removal from office. One branch of the government (Congress) pursues it against members of the others (the executive branch or the judiciary). Yet the procedure for impeachment feels entirely judicial. The senators must “try” the impeachment charges, on their oaths. This mixture of the political with the judicial has left the most interesting question about impeachment unresolved for more than two centuries.

Little guidance on this key question could be drawn from American impeachments before Johnson’s presidency. In the eighty years from the writing of the Constitution to January 1867, the House of Representatives had approved impeachment resolutions only four times, never against a president. The only brush with presidential impeachment came in 1843, when the House defeated a proposal to impeach President John Tyler. Tyler’s situation bore some superficial resemblance to Andrew Johnson’s. Tyler was a Southern Democrat chosen as a running mate for a western non-Democrat (William Henry Harrison was a Whig from Indiana). Succeeding to the presidency after Harrison’s death, Tyler angered Whigs by vetoing bank and tariff legislation. With little debate, an impeachment resolution lost by an 83-to-127 vote.

Four judges had faced impeachment trials in the Senate, but their cases did not yield much more wisdom. In all four cases, the judge was charged with “high crimes and misdemeanors” or a “high misdemeanor”; none involved charges of bribery or treason. Two cases ended with convictions; two with acquittals.

When he entered the White House in 1801, Thomas Jefferson became intrigued with impeachment’s potential to clear the federal bench of the judges appointed by his predecessor, John Adams. Jefferson started with Judge John Pickering of the New Hampshire Circuit Court. Known to be mentally unstable, Judge Pickering never appeared at his Senate trial and was duly removed from office. Emboldened, Jefferson sent his congressional hounds after Justice Samuel Chase of the Supreme Court, who was charged with misbehavior on the bench and unfairness to litigants. Defended by a lawyer who had been a delegate to the Constitutional Convention (Luther Martin of Maryland), Chase won acquittal in early 1805. Jefferson abandoned his impeachment project.

Since the Chase acquittal, two more judges had been impeached by the House. District Judge James Peck of Missouri was tried by the Senate in 1830 on a single accusation. After Peck ruled in an important land case, the lawyer for the losing side took out a newspaper advertisement denouncing the judge. Peck tried the lawyer for contempt of court and sentenced him to eighteen months in jail. The lawyer then persuaded the House of Representatives to impeach Judge Peck for imposing an excessive penalty. After a five-week trial, a majority of the Senate acquitted the judge. Finally, most congressmen in 1867 remembered the impeachment five years earlier of District Judge West Humphreys of Tennessee. The military governor of that state, none other than Andrew Johnson, recommended impeachment after Humphreys became a judge for the Confederacy without resigning from his position with the United States government. The Humphreys impeachment articles charged neither treason nor bribery, but high crimes and misdemeanors. Those offenses included giving speeches that incited secession and confiscating the property of Andrew Johnson. Humphreys, who did not appear at his Senate trial, was unanimously convicted. John Bingham of Ohio, who would play a major role in the Johnson impeachment, served as lead prosecutor for the House.