Is impeachment only about getting a conviction?
In May 1868, President Andrew Johnson came one vote short of conviction on articles of impeachment. His was the first presidential impeachment in US history, one of only three to date to go to trial. It came in the traumatic aftermath of the Civil War, amid a constitutional crisis over the relative powers of the president and Congress to set the terms of national reconstruction, including establishing the rights of 4 million newly freed African Americans. It remains the closest the country has ever come to convicting a president for “treason, bribery, or other high crimes and misdemeanors.” That Johnson did not get convicted, however, raises its own set of questions. If Congress could not succeed in prosecuting Johnson, is there reason to think it might never succeed in convicting a president? Given the political dynamics and consequences of the process, is there perhaps a better measure of success for impeachment than removing a president from office?
Impeachment has always been an obscure process. Article II, Section 4, of the Constitution identifies it as the ultimate check that the legislative branch has on the powers of the executive. But the article offers only minimal guidelines for the kind of behavior that merits impeachment or the process of adjudicating it. It states that “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Treason and bribery are straightforward enough, but the catchall category of high crimes and misdemeanors allows for a wide scope of transgressions. What the founders had in mind, Alexander Hamilton explains in The Federalist Papers, was “the misconduct of public men” or, in other words, “abuse or violation of some public trust.” Impeachment, therefore, was the remedy not only for corruption and treason but also for other abuses of power. For this reason, it was “denominated POLITICAL” in nature and thus posed difficulties in terms of enforcement. A trial for impeachment would never be an ordinary trial. Prosecutors (from the House of Representatives) would have wide latitude in defining the offenses, and in the absence of a jury, judges (the Senate) would have an “awful discretion” in deciding the case. To complicate matters, sometimes political neutrality would be in short supply. “In such cases,” Hamilton noted, “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
That essential prediction has held true over the course of impeachment’s history and is no less true in 2020 than it was in 1999 or in 1868. The danger that House members might use impeachment to target a political opponent pointed to the potential utility of impeachment as not so much a legal proceeding as a political one. Its inescapably partisan nature is the reason the founders set a high bar for conviction, but it also suggests the underlying value of the process as a powerful check on executive power and an expression of political will by the dominant party in the legislative branch.
Brenda Wineapple’s new book, The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation, presents a timely discussion of the Johnson affair and, more generally, the extended standoff between the president and Congress that triggered the process. As the title suggests, Wineapple is more interested in the impeachers and the trial than in the larger political stakes of the fight; for her, the whole matter is often quite literally a drama of personalities. The book starts by introducing its “Dramatis Personae,” the cast of characters in the 1868 play “The Impeachment Trial of President Andrew Johnson,” and it continues in this vein, presenting Johnson’s impeachment as a national tragedy, albeit one with elements of farce. In a series of very short chapters—some only seven pages long—she lays out the historical background, the impeachment process, the trial, and the verdict, weaving essential information in and around brief character sketches and colorful quotations from the key players.
Wineapple’s mode of narration offers an engrossing play-by-play account of the action, but at points it is not entirely suited to the task of providing the context and nuance needed to understand Johnson’s trial. His virtually Trumpian mode of braying and baiting political speech comes through loud and clear, as do all manner of personality conflicts that Wineapple sees as bearing on the outcome. But readers might have a more difficult time grasping the scope and scale of the historical problem between Congress and the president that brought them to the point of impeachment in the first place. The existential struggle between Johnson and congressional Republicans was primarily a dramatic clash not of personalities but of fundamental ethical and policy differences about the meaning of the Civil War, the terms of the country’s reunification, and the very future of American democracy.
Among US presidents, Andrew Johnson was uniquely vulnerable to impeachment and conviction. He was a Southern Democrat added to the Republican ticket in 1864 as Abraham Lincoln’s running mate in a wartime coalition, an “accidental president” elevated to the chief executive’s role by an assassin’s bullet. For his entire time in office, Republicans held veto-proof majorities in both the House and the Senate. Yet whatever Republican support Johnson began with, he quickly lost as a result of his self-aggrandizing exercise of presidential power and his Reconstruction policies, which empowered the defeated Confederates. For eight months he refused to convene Congress, attempting a quick reintegration of the former Confederate states entirely on his own (lenient) terms. When Congress finally reconvened in December 1865, the House refused to seat the white supremacist Democrats returned under his watch. By the end of 1866, even moderates in the Republican Party had abandoned him. In response, Johnson tried to woo Democrats by playing to their racism. But that didn’t work, either. By 1868, the Republican Party wanted nothing more to do with him, and neither did the Democrats, who put Horatio Seymour at the head of their ticket in the upcoming presidential election. By the time Johnson was impeached that spring, he was a man without a party and, as we would now say, without a base—a very different and far more exposed position than that of Richard Nixon, Bill Clinton, or Donald Trump, all of whom had their party behind them, at least at the start of the process.
There is no question that, as Wineapple puts it, “one of the chief architects of Andrew Johnson’s impeachment was Andrew Johnson.” He was, to put it mildly, temperamentally unsuited to the office: The nation’s 17th president rivaled its current one in his penchant for race-baiting and his shockingly coarse expressions and views. “Andrew Johnson was not a statesman,” Wineapple writes in a masterstroke of understatement. Instead, he was a man “with a fear of losing ground,” an “obsession to be right,” and a need to humiliate his enemies when “seeking revenge” on them. (And Johnson was certainly prolific in creating enemies, routinely denouncing the people who opposed him as “traitors” and “enemies of the people.”) He also spoke of himself in the third person (“They are ready to impeach him”) and specialized in self-promotion and self-pity. No man in the history of the office, he proclaimed, had ever been so “traduced and abused.”
Johnson had very little in the way of political charisma. The more the public saw of him, the less it liked. In the fall of 1866, on the eve of the midterm elections, Johnson set out on a disastrous speaking tour that came to be known as the “Swing Around the Circle.” He stumped for Democrats, attempting to build support for himself as the leader of a new Democratic coalition. In the immediate aftermath of massacres of African Americans in Memphis and New Orleans that shocked the nation, he egged the Southern Democrats on, campaigning against ratification of the 14th Amendment and urging Southern legislatures to hold the white supremacist line. But his craven cultivation of racists failed to win him a following, even as it further alienated or antagonized moderates of the Republican Party, legislators and voters alike. Heckled by hostile audiences, Johnson would lash out at his constituents, denounce Congress as a “rump” parliament, threaten to hang the Republican leader Thaddeus Stevens, and liken his situation to the agonies of Jesus—public statements that would all be cited in the articles of impeachment. Ulysses S. Grant, who had been forced to accompany Johnson on the tour, called him “a National disgrace” and at one point bailed on the tour. By its end, Republicans were united against him. “Was there ever such a madman in so high a place as Johnson?” asked Henry Raymond of The New York Times. After the midterms, talk of impeachment got serious.
Yet Johnson’s demonstrable unfitness for office can go only so far in explaining his impeachment. After all, impeachment did not immediately follow the midterm elections. First there needed to be a constitutional crisis over the power of the legislative branch to set national policy. The Republicans’ determination to impeach and remove Johnson turned on irreconcilable ethical and political differences about the terms of freedom and citizenship in the reunited nation more than it did on any difference in temperament and personality. By 1868, when the House wrote the articles of impeachment, Johnson had vetoed or campaigned against three signature pieces of Republican legislation: the Civil Rights Act, the 14th Amendment, and the Military Reconstruction Acts. Passed in 1866 and ’67 in response to provocations by Johnson and the Southern legislatures, each act was more radical than its predecessor. The Civil Rights Act established national birthright citizenship (though it still excluded Native Americans) and reversed the Supreme Court’s Dred Scott decision, which denied the claim of citizenship to all people of African descent. The act also guaranteed equality in civil rights, striking down the discriminatory “black codes” by which Southern states had limited the terms of freedom for African Americans. The 14th Amendment rendered those gains permanent in the Constitution, extended equal protection of the law to all citizens, and penalized Southern states for withholding the franchise from African American men by reducing their representation in Congress. The Military Reconstruction Acts were by far the most radical and confrontational. In the face of white Southerners’ unrepentant refusal to extend even basic civil rights to African Americans (as well as the campaign of white supremacist violence against them, which was already taking organized form in the Ku Klux Klan), the legislation carved up the former Confederate states into five districts and returned them to military rule. Those states would not be readmitted to Congress until they ratified the 14th Amendment and wrote new state constitutions enforcing its terms. The Military Reconstruction Acts thus intended what the 15th Amendment would later do—introduce black male suffrage—but earlier and by military fiat. Johnson vowed to obstruct them. This set impeachment in motion.
Despite its sure grasp of the biographical elements of the story, The Impeachers fails to take the proper measure of these acts and the constitutional crisis of which they were a part. The Civil Rights Act was not radical at all, Wineapple says, but “merely granted citizenship to all persons born in the U.S.” along with basic civil rights. Of the Military Reconstruction Acts, she opines that “the only real objection the Southern states might have…would be the granting of suffrage to black men.” They certainly did object to black suffrage—violently so, as the next 50 years of Southern history attests. But there was nothing modest about national citizenship or equality under the law, either. Congressional Republicans knew white Southerners would never concede to that unless compelled, and so executing the first two bills required the passage of the third. After a brutal civil war, renewed military occupation was the nuclear option, but enforcing black men’s right to vote would require precisely that: a virtual revolution in representation and, as W.E.B. Du Bois pointed out long ago, nothing short of the reconstruction of democracy itself in the United States.
Congressional Republicans thus expected presidential obstruction. On the same day they passed the Military Reconstruction Acts, they also passed the Tenure of Office Act, which barred the president from removing high-ranking appointees without Senate consent. It was written specifically to constrain Johnson’s ability to sack his secretary of war, Edwin Stanton, who could be trusted to enforce military reconstruction. Wineapple identifies the Tenure of Office Act as a “legal pretext.” But it was more than that. Stanton and the act were the congressional Republicans’ insurance against Johnson’s obstruction of their Reconstruction policy—or, as the articles of impeachment put it, his failure to uphold his oath to enforce the nation’s laws.
Eleven months later, on February 21, 1868, Johnson fired Stanton, in violation of the Tenure of Office Act. When the news arrived, the House and Senate went into special session and moved immediately to impeach. On February 24, Stevens delivered the impeachment papers to the House. After a day of debate and for the first time in American history, the House of Representatives voted to impeach a president. Speaking last, Stevens framed impeachment as the only available means to curb a president intent on denying the legitimacy of Congress’s role in government. In such a case, he argued, the framers relied not on the “avenging dagger of a Brutus” but on the “peaceful remedy [of] impeachment.” The resolution passed the House in a landslide, 126-47. Every Republican voted in support; no Democrat did.
The 11 articles brought against Johnson introduced a curious pattern that appears to have held across time. In most cases to date—Johnson, Nixon, Trump—the articles of impeachment were drawn narrowly, positing a strange relationship between the formal charges on which presidents were (and are) tried and the larger context of political corruption or abuse of power that provoked Congress to act. In 1868, the first eight articles focused on Johnson’s violation of that obscure Tenure of Office Act (which was repealed in 1887). The ninth involved a related charge about a military appropriations law that he had encouraged an officer to disobey. All of those articles involved violations of laws that had been recently and specifically written to curb the power of the president to obstruct congressional reconstruction. The last two articles, written at the insistence of Stevens, cut a wider swath. They identified impeachment as the only remedy for a chief executive who, by repeated violent speech (itemized at length in Article 10), sought to deny Congress the exercise of its “rightful authorities and powers,” and in the process, through behavior “peculiarly indecent and unbecoming in the Chief Magistrate of the United States…brought the high office of the President…into contempt, ridicule and disgrace.”
According to the articles, Johnson was guilty not of treason or bribery but of a series of “high crimes and misdemeanors in office.” All of Johnson’s “unlawful” and impeachable acts involved the violation of his oath of office to “take care that the laws be faithfully executed.” Starting in 1868, debate raged as to whether impeachable acts had to meet the standard of being indictable offenses. In this first, foundational case, the decision of the impeachers was that they did not.
After the House voted to impeach, Senate Republicans moved with equally impressive speed. Within 10 days, Johnson was summoned to appear, and the Senate convened under Chief Justice Salmon P. Chase as a court of impeachment for the trial. Johnson never did appear; the entire proceeding was conducted in his absence. The country had no precedent for this situation; as Wineapple observes, “No one knew what to do.” Offering a vivid account of the way the chief justice seized control of the process and arranged the rules to reserve power for himself, Wineapple explains that Chase insisted the Senate be organized as a court of law, meaning that the presiding judge would rule on the admissibility of evidence and the reliability of witnesses; he also awarded himself the right to cast the deciding vote in the case of a tie. There were procedural challenges to those arrangements during the trial, but Chase mostly prevailed.
By Wineapple’s account, the fix was thus in by the time the trial began. Chase’s views concerning the illegality of military government were on record. And because Johnson had no vice president, the next in line for the presidency was House Speaker Ben Wade, a Radical Republican and the only US politician quoted by name in Karl Marx’s Capital. (Indeed, Wade was so radical that he supported women’s suffrage.) “Wade, then, in the Executive Mansion? Not a chance,” Wineapple writes. As a result, the potential removal of Johnson proved “too frightening” for many. But even if the moderates were looking for a way out, Senate Republicans had so few defections that they came within one vote of conviction.
The impeachment trial was brief; arguments by the prosecution and defense extended over 17 days. The president had a brilliant defense team of five lawyers, including a former Supreme Court justice, Benjamin Curtis; Johnson’s attorney general, Henry Stanbery (who resigned from the cabinet to serve on his legal team); and the New York lawyer William Maxwell Evarts, who after the trial was rewarded with an appointment as Johnson’s next attorney general. They faced seven House managers making the case for the prosecution. That team included Stevens and Benjamin Butler, one of the best criminal lawyers in the country, who delivered the prosecution’s opening statement. The defense called 16 witnesses, one of whom—no less than Gen. William Tecumseh Sherman—testified to a conversation with the president that undermined the defense’s position that Johnson had removed Stanton for the express purpose of testing the Tenure of Office Act in court.
In making their case, the defense lawyers focused on the constitutionality of Johnson’s actions. Their tactics were twofold. They both attacked the constitutionality of the Tenure of Office Act and denied that it applied to Johnson, who had not appointed Stanton. Johnson had thus broken no laws, they argued. As now, so in 1868: The president’s defenders insisted there was no indictable crime. It was a position Butler explicitly rebutted in his opening remarks. An impeachable offense or “misdemeanor,” he said, was one that subverted the principles of government or that abused or usurped power. Conviction, he added, did not have to reach the same high legal bar as in a criminal case; a preponderance of the evidence was sufficient to prove guilt. And either way, Butler insisted, Johnson had broken a law, the Tenure of Office Act. If he didn’t want to execute that law, Stevens argued, Johnson should have resigned. But as Stevens himself noted, the breach of law was not what the impeachment was ultimately about. The “real issue was reconstruction” and the succor Johnson had given to rebels still “unwilling to create a free and fair country” for black citizens as well as white. Stevens knew that the impeachment hearings were a necessary part of the larger political struggle to constrain the president. What was at stake was who would get to control the course of Reconstruction.
In the end, every Senate Democrat voted “not guilty,” and 10 Republicans joined them. Most were moderates who recognized the political nature of the proceeding and thought the failure of impeachment was ultimately good for the party and in particular for Grant’s chances in the upcoming election, at that point only six months away. There is hard evidence of corruption against at least one of those Republicans, Edmund Ross of Kansas—ironically, a man singled out for praise by John F. Kennedy in Profiles in Courage precisely for his willingness to buck his party. But almost everyone else voted along party lines: Impeachment was an act of partisanship and principle.
As the impeachment trial of the country’s 45th president proceeds apace, there are several things one can take away from Johnson’s precedent-setting case. The first is that there will always be a high bar for conviction. In his closing argument in 1868, Evarts indicated what the standard should be. Remove the president, he asked, for what crime? “Had Johnson surrendered a fleet? Abandoned a fort? Betrayed the country to a foreign state? Fleeced the government?” Any of those would be a clear case; Johnson’s was not. By those standards, though, we appear to have one now.
The second is that there is always a reluctance to convict, and not just in the president’s own party. Too many people are afraid of what it would mean to vote to remove a president, even one grossly unfit for office. In 1868, men like Evarts and a handful of Republicans voted against conviction less in defense of the president than of the presidency. They were interested above all in the questions of executive power and the separation of powers in our constitutional system.
These are issues that have been central to every case of presidential impeachment. The Republican John Bingham, who delivered the closing argument against Johnson for the House managers, cared about the Constitution and the checks and balances on which American government rests. “The President had taken the law into his own hands,” Bingham insisted, and so had to be impeached and removed. “The President is not a King and cannot…disregard the Constitution and its provisions,” he continued. No man in the United States was “above the law…. No man lives for himself alone, ‘but each for all’. Some must die that the state may live,” and thus “position, however high, patronage, however powerful, cannot be permitted to shelter crime to the peril of the republic.” It was a powerful argument then and remains one, but that doesn’t change the fact that in a democratic system the protection of constitutional principles requires a mobilized political defense.
There is one more conclusion we can draw about 1868: Johnson may not have been convicted by the Senate, but his Republican impeachers nonetheless did win the battle over Reconstruction, and in this way impeachment was a success. After Johnson was acquitted, Republicans passed their most radical acts yet, holding their coalition together long enough to enact the 15th Amendment, which guaranteed adult male citizens the right to vote regardless of race, and the Enforcement Acts, by which they successfully used federal power to suppress the Ku Klux Klan. They also saw the election of Grant as president in 1868 and managed to hold off the Democratic white supremacist overthrow of radical Reconstruction into the 1870s. These were no mean achievements, and Wineapple’s The Impeachers helps us to see how Republicans won in the end, even though they failed to remove the president.
In The Wars of Watergate, Stanley Kutler writes that “impeachment was perceived as analogous to nuclear weapons: available, yet too dangerous to use,” which, if true, also means that invoking the power to impeach is itself a meaningful act. Impeachment is not likely to become a routine tool of partisan warfare. To date, it has been used only four times (including against Nixon, who resigned before articles of impeachment were voted on). In the wars over Reconstruction, when the questions on the table were as fundamental to democracy as they come, the decision to impeach Johnson was a critical demonstration of political will. Impeachment might not have been the most dramatic or important of the Republicans’ actions. But as a tool to constrain executive abuse of power and as a way to publicize dissent on matters of policy and principle, it suggests that impeachment itself is the measure of success, however remote the likelihood of conviction.
Stephanie McCurry, the R. Gordon Hoxie Professor of American History at Columbia University, is the author of Women’s War: Fighting and Surviving the American Civil War.
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