The ancient Athenian democracy featured a unique political safety valve known as ostracism that allowed for the ten-year exile of any citizen of the polis based solely upon the votes of his fellow citizens. Senators in ancient Rome could be impeached and expelled from the Senate for malfeasance, another kind of safety valve that unfortunately did not apply to the Emperor. It was to Rome that framer Benjamin Franklin looked during the 1787 Constitutional Convention when he observed that without the legal alternative to impeach the President “. . . in cases where the chief magistrate rendered himself obnoxious . . . [the only] … recourse was … assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused.” Hotly debated, Franklin’s point of view nevertheless prevailed, although it was to be decidedly vague as articulated in Article II Section 4 of the Constitution: “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.”
It has never really been clear what constitutes these “other high Crimes and Misdemeanors,” although in the current political climate it might be especially relevant to bone up on the concept. Gerald Ford once (1970) said that: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Most would agree with author David O. Stewart that the embarrassing 1999 Senate impeachment trial of President Clinton was little more than an example of “. . . House Republicans . . . throwing [a] . . . moralistic temper tantrum . . . [that sought to impeach] Clinton for actions totally unrelated to his official duties [p321] But in Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy, Stewart reminds us that there are times when impeachment is a legitimate recourse. Richard Nixon resigned in 1974 to avoid almost certain impeachment and conviction in the Watergate scandal, making Gerald Ford (with some irony given the comment above) President of the United States. In his 1868 Senate impeachment trial, Andrew Johnson avoided removal by only a single vote.
In this well-written narrative, Stewart looks beyond historiography and brings to bear his own experience as a constitutional lawyer who once clerked for Supreme Court Justice Lewis Powell, Jr. and later served as principal defense counsel for U.S. District Judge Walter L. Nixon, Jr. in a 1989 impeachment trial before the United States Senate, to place impeachment in context and to bring a fresh perspective to the attempt to remove Johnson. Stewart recalls that it was President Jefferson who first attempted to utilize the impeachment statute for political purposes as he sought to remove unfriendly federal judges appointed by his Federalist predecessor. His efforts met with limited success and thus he abandoned them. The impeachment tool largely lay dormant until the Johnson era.
Tennessean Andrew Johnson was a staunch Unionist and the sole Senator from a southern state to not resign his seat during the secession crisis and the onset of the Civil War. In the 1864 national campaign to re-elect Lincoln (who himself believed he would likely not prevail), Johnson – a Democrat – was added to the VP spot of the “National Union Party” ticket to bolster Lincoln’s chances that November. Johnson, a somewhat vulgar character who was known to tip the bottle a bit too frequently, was drunk on Inauguration Day. Forty-two days later, as the Civil War drew to a close, Lincoln was assassinated and Johnson was President of the United States.
There was tension almost immediately with the simultaneous dawn of Reconstruction and Johnson’s accession to the Presidency. It at once became clear that Johnson was at odds with Congress on virtually every aspect of the process that would readmit the seceded states back into the union, punish or pardon former rebels, protect the millions of newly freed African-American former slaves, and the role that federal troops and the federal government would play in these sometimes-conflicting arenas. Lincoln died before his vision for Reconstruction could be fully shaped, but he was a political moderate who endorsed reconciliation and the speedy readmittance of the former Confederate states, yet certainly had concerns for the welfare of black freedmen. Congress was controlled by Radical Republicans, who largely sought to both punish the rebellious southern states and elevate African-Americans to some kind of relative equality. Johnson took a vastly different approach that was almost diametrically opposed in every case to that advocated by the Congressional majority. Johnson, an opponent of the Fourteenth Amendment, favored the immediate readmittance of the seceded states, a policy of unilateral forgiveness for the former rebels, and a strict constitutional view of states’ rights that afforded virtually no role for the federal government in protecting African-Americans from harsh and often brutal treatment by their former masters. Johnson went so far as to remove several generals commanding occupation forces in former Confederate states for the too diligent enforcement of Reconstruction policies and the active defense of the otherwise helpless population of recently freed blacks.
Before long, antagonism between the legislative and executive branches reached unprecedented levels of hostility that spawned multiple attempts at impeachment. Two of these failed before the third took hold. The critical issues were that the actions of the Johnson Administration seemed to negate the essence of the Union victory in the Civil War, further endangered the millions of freed African-Americans struggling in a hostile climate, and jeopardized the Lincoln legacy. General Ulysses Grant, the most admired man in America in the wake of Lincoln’s death and the presumptive Republican nominee in 1868, shared these concerns. Efforts to recruit the more conservative General William Tecumseh Sherman – perhaps the second most admired man in America – to Johnson’s cause failed because of the unshakeable loyalty between Grant and Sherman. Most of the cabinet officials Johnson inherited from Lincoln were on board with him, with the notable exception of the highly respected yet irascible War Secretary Edwin Stanton, who blocked Johnson at every turn. An attempt by Johnson to replace Stanton collided with the recently enacted “Tenure of Office Act” that sought legislative control over presidential appointments and led finally to an impeachment action.
Those familiar with the Civil War will recognize many of the characters who walk the stage in the detailed trial drama that unfolds, including Radical Republican Thaddeus Stevens, a weak and dying man who is nevertheless Johnson’s most potent adversary, mediocre general but fiery political chameleon Benjamin Butler, who leads the prosecution forces in the Senate trial, and Salmon P. Chase, once Lincoln’s Treasury Secretary kicked upstairs to the Supreme Court to avoid potential rivalry in the ’64 election, now presiding over the trial. There are many others.
Stewart takes a decidedly revisionist approach and argues with some conviction that the position underscored in traditional historiography, which perhaps received the most prominence in John F. Kennedy’s Profiles in Courage – that Johnson’s acquittal was a welcome victory for the Executive branch in the Constitutional separation of powers – is a flawed interpretation to the actual events and their aftermath. In fact, Stewart demonstrates in his well-reasoned study that impeachment, as Benjamin Franklin imagined it, was perfectly suited to the Johnson case. The problem, as the author underscores, was not the case against Johnson but the way Congress bungled it. As it turned out, the linchpin of the case, the Tenure of Office Act, was hardly a convincing ploy against Johnson in these circumstances. There were multiple other articles, all vague, none irrefutable. Butler, who could be a brilliant tactician, was also often all ego and bluster, and Stevens was too frail to take the kind of lead that might have produced an entirely different outcome. In a fascinating articulation of his deep research into the people and events of the trial, Stewart points to multiple backstories that traditional studies have overlooked. It was clear that Grant was not only the likely nominee in November of that year but also would soon be President; what difference would a few months make? And if Johnson was removed from office, under the rules of the day the new President would be none other than Benjamin Wade, president pro tempore of the Senate, a Radical Republican who was also seen as too radical by too many. (One newspaper wrote, “Andrew Johnson is innocent because Ben Wade is guilty of being his successor.”) Significantly, much patronage and graft was at stake if the President was removed and another took his place. Most prominent here was the massive corruption surrounding the tax and siphoning off of the tax dollars on whiskey, which contributed to funding the Union effort in the Civil War. There was also much wagering on the outcome of impeachment, and gambling bought or sold many votes. Finally, there were bribes, pure and simple, that put a Senator’s vote in one camp or another. Stewart concludes that his research points to the purchase of the decisive vote for acquittal by Senator Edmund G. Ross, long otherwise lionized for his courage of principle.
Whatever your opinion on the merits of impeachment, Stewart notes that the result of Johnson’s acquittal was clear. Prominent former Confederates were seamlessly elected to Congressional seats in the newly readmitted former Confederate states, Johnson issued a blanket pardon to rebel political and military officials, and blacks were routinely repressed and terrorized throughout the south. African-Americans and the entire nation paid a century-long penalty for the failure to remove Johnson. Stewart notes that in 1868 alone:
Estimates of the election-year carnage in the South were staggering though often imprecise. The House Committee on Elections found that in Louisiana more than 1,000 blacks and white Unionists were killed and an equal number wounded, more than 600 killed in Kentucky, and dozens more in South Carolina. From August to October, the Freedman’s Bureau reported, Georgia saw 31 killings of blacks and white Unionists, 43 nonfatal shootings, 5 stabbings, and 63 beatings. A Republican Congressman from Arkansas was assassinated for political reasons. Fifty armed men attacked a plantation owned by a Unionist in Texas, killing seven freedmen. The Ku Klux Klan claimed credit for murdering leading Republicans in Alabama, in Georgia, in Texas, and in South Carolina . . . Many freedmen were blocked from voting. Others were compelled to vote for Democrats. Much of the worst violence continued to be in Texas. A former governor reported in May 1868 that 250 “union men” had been murdered in the state in the preceding six months. For a price, gangs would kill blacks, Republicans, or federal soldiers. Efforts at self-defense by the poorly armed freedmen often brought catastrophe. Civil war broke out in Brazos County, with whites and blacks forming militias. Twenty-five freedmen died in a battle that drove most blacks and Union families from the area. [p302]
If there is a fault in this fine book it is that there is too much detail, too many characters, too much attention to the blow-by-blow of the trial outcome. But then, the author is a lawyer, so attention to detail is, I suppose, especially requisite. I did not pick this book up planning to learn as much as I did about the impeachment process, but I closed the cover firmly convinced that Benjamin Franklin was on to something most significant when he noted that there needed to be an avenue to remove a Chief Executive who has “rendered himself obnoxious.” Perhaps this will be a road that beckons travel yet again soon.
[My Review of: Madison’s Gift: Five Partnerships that Built America, David O. Stewart ‘s later work, is here: https://regarp.com/2018/10/17/review-of-madisons-gift-five-partnerships-that-built-america-by-david-o-stewart/ ]