After two presidential impeachment crises in the last forty years, and with the dramatic expansion of the powers of the presidency, the lessons of the first presidential impeachment are more urgent than ever.
In 1868 Congress impeached President Andrew Johnson of Tennessee, the man who had succeeded the murdered Lincoln, bringing the nation to the brink of a second civil war. Enraged to see the freed slaves abandoned to brutal violence at the hands of their former owners, distraught that former rebels threatened to regain control of Southern state governments, and disgusted by Johnson's brawling political style, congressional Republicans seized on a legal technicality as the basis for impeachment -- whether Johnson had the legal right to fire his own secretary of war, Edwin Stanton.
The fiery but mortally ill Congressman Thaddeus Stevens of Pennsylvania led the impeachment drive, abetted behind the scenes by the military hero and president-in-waiting, General Ulysses S. Grant.
The Senate trial featured the most brilliant lawyers of the day, along with some of the least scrupulous, while leading political fixers maneuvered in dark corners to save Johnson's presidency with political deals, promises of patronage jobs, and even cash bribes. Johnson escaped conviction by a single vote.
David Stewart, the author of the highly acclaimed The Summer of 1787, the bestselling account of the writing of the Constitution, challenges the traditional version of this pivotal moment in American history. Rather than seeing Johnson as Abraham Lincoln's political heir, Stewart explains how the Tennessean squandered Lincoln's political legacy of equality and fairness and helped force the freed slaves into a brutal form of agricultural peonage across the South.
When the clash between Congress and president threatened to tear the nation apart, the impeachment process substituted legal combat for violent confrontation. Both sides struggled to inject meaning into the baffling requirement that a president be removed only for "high crimes and misdemeanors," while employing devious courtroom gambits, backstairs spies, and soaring rhetoric. When the dust finally settled, the impeachment process had allowed passions to cool sufficiently for the nation to survive the bitter crisis.
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[T]his was no ordinary political crisis. It was not a struggle for office, or a contest about a tariff..., but a dispute that followed hard on a terrible civil war. It was the reconstruction of the Union that was at issue.
AFTER FINISHING The Summer of 1787 about the writing of the Constitution, I wanted to pick up the Constitution's story at its next critical moment. To form a union from thirteen quarreling states, the Philadelphia Convention patched together a number of rough compromises, prominent among them agreements about slavery and the allocation of power between the federal and state governments. Those political bargains held up for seventy years. During those decades, a web of accommodation and mutual forbearance bound the nation together. Three times, painful compromises over slavery kept the states united. Arguments over the powers of the sovereign states flared and subsided and flared anew. By 1861, contention over slavery and state powers overwhelmed the constitutional structure. Eleven Southern states seceded and fought a savage four-year war to be no part of the United States.
That war exposed fundamental flaws in the founding document. Slavery could no longer be papered over. It had to be abolished. The national government's power over the states had to be reinforced. A commitment to equality and the right to vote had to be embraced. From 1865 to 1870, the Thirteenth, Fourteenth, and Fifteenth Amendments remade the Constitution in those ways.
Yet the central constitutional drama of this critical era was not the prolonged battle over the new amendments. Rather, the nation came closest to tearing itself apart, again, during the impeachment struggle between Congress and President Andrew Johnson in the spring of 1868. Accused by the House of Representatives of eleven offenses ("Articles of Impeachment"), Johnson endured a lengthy Senate impeachment trial, escaping conviction and removal from office by a single vote.
I first studied Johnson's impeachment trial twenty years ago, when I defended Walter L. Nixon, Jr., a federal judge from Mississippi, in an impeachment case before the Senate. I needed then to understand what offenses constitute "high crimes and misdemeanors" under the Constitution, and thus support impeachment. Naturally, I turned to the Johnson case, the only presidential impeachment trial to that point. My study yielded mostly confusion.
The principal players in the case were unfamiliar: Congressmen Thaddeus Stevens and Benjamin Butler led the prosecution; in opposition were former Supreme Court Justice Benjamin Curtis and attorney William Evarts. The eleven impeachment articles, which were the indictment of the president, were impenetrable, even for a lawyer. The S enate's rulings on legal issues what was a "high crime" or "high misdemeanor," and what evidence could be heard were inconsistent, even incoherent. Those seeking to drive Johnson from the White House were passionate, but the charges against him seemed technical and legalistic. The conflict focused on Johnson's attempt to fire his secretary of war. How, I wondered, could the president not have the power to do that? And yet Johnson almost was convicted on those baffling impeachment articles.
This time around, with greater time and study, I appreciated better how this confrontation grew from irreconcilable disagreements over how to reconstruct the nation after secession and civil war. Johnson was a Southern Democrat, elected on the Republican ticket in 1864, who became president because of the tragic assassination of Abraham Lincoln. Johnson took a narrow view of federal powers under the Constitution. Untroubled by gruesome racial violence in the South, or by the replacement of slavery with a brutal form of agricultural peonage, he wanted Union troops to withdraw quickly from the region. Sovereign Southern states, he believed, should be left to manage their own affairs.
Congress, overwhelmingly Republican and including no representatives from ten Southern states, disagreed. Congressional Republicans were enraged that former Confederates would be rewarded for their treason by swiftly regaining control over their states. Most Republicans wanted power in those "reconstructed" states to be reserved to men who had been loyal to the Union. They insisted that the freed slaves must be protected from white violence. Many wanted the freedmen to have the vote so they could elect state governments that would treat them fairly.
As the dispute between Johnson and congressional Republicans grew more rancorous, constitutional questions became central. Johnson insisted that he was defending the Constitution "as it is," preserving the original vision of the Founding Fathers. Congressional Republicans insisted that the Constitution, and the Union, had to change. When Congress resorted to its ultimate constitutional weapon against the president impeachment and removal from office calls to arms rang through the North and South. The nation's future hinged on whether impeachment would work well enough to prevent a plunge back into civil war. Could the Constitution mediate this fierce battle within the government itself? When the nation slid into civil war in 1861, the Constitution was no help. Would it perform any better seven years later?
This was a great testing for the Constitution and the nation. For many years, the conventional telling of the impeachment story portrayed it as a hairsbreadth escape from congressional despotism. By this traditional account, the presidency survived because a few heroic Republicans in the Senate refused to join the vengeful Northern harpies who hated Andrew Johnson for attempting to heal the nation's wounds. That conventional view is a cartoon version of the actual struggle, and ignores much of the historical record. As president, Johnson inflicted many more wounds on the nation than he healed, while votes for his acquittal were purchased with political deals, patronage promises, and even cash.
Andrew Johnson was an unfortunate president, an angry and obstinate hater at a time when the nation needed a healer. Those who opposed him were equally intemperate in word and deed. It was an intemperate time. The tempests of the Civil War still triggered high emotions. Yet Johnson's opponents, often described as demonic impeachers, defended the principles of fairness and equality that represent the finest parts of the American tradition, which they also were fighting to incorporate in the Constitution. The impeachment process proved cumbersome and exasperating, but ultimately achieved exactly the goal for which the Framers of the Constitution designed it: the peaceful resolution of a grave national crisis.
An unexpected part of the story is one that was difficult to see at the time and has been mostly ignored ever since: the corruption and bribery that surrounded the Senate trial. Though the passage of 140 years has covered many tracks, there remains substantial evidence that rogues and blackguards brandished fat wads of greenbacks and portfolios bulging with government appointments in order to keep Andrew Johnson in office, or to drive him out. The rascals included corrupt tax collectors, bent Indian agents, greedy financial manipulators, and political bosses. Assembling the facts surrounding these extraordinary events required historical detective work that was both fascinating and frustrating. The effort drew on my experiences as a criminal defense lawyer in cases involving private and public corruption. Though hard conclusions are elusive with this part of the story, the evidence paints an unsettling portrait of boodle and payoffs that might well have determined one of the critical moments in America's history.
As long as the Constitution holds the nation together, the story of the Johnson trial will be an important one. Twice in my lifetime, impeachment has stopped the nation in its mad rush to the great American future. Richard Nixon resigned in August 1974 rather than face the impeachment articles approved by the House Judiciary Committee. Bill Clinton was the second president in history to be impeached by the House of Representatives; after a brief proceeding in the Senate, he was acquitted on all charges. Yet those episodes pale when compared to the fervor that rocked the nation in 1868, when Andrew Johnson stood accused before the Senate sitting as a court of impeachment. At that moment, only the impeachment clauses of the Constitution stood between the nation and a second Civil War.
Copyright © 2009 by David O. Stewart
ANDREW JOHNSON OF Tennessee felt shaky on the morning of March 4, 1865. Despite the cold rain that was drenching Washington City, it should have been the most gratifying day of his fifty-six years. At noon, he would be sworn in as vice president of the United States. A man who never attended a day of school would become the nation's second-highest official. Still, despite the excitement of his own Inauguration Day, Johnson did not feel right. It might have been the lingering effects of a fever that had struck him over the winter. Or it might have been nerves a month before, he had proposed not to attend the inauguration at all, only to be overruled by the president, Abraham Lincoln. Or it might have been the residue of a hard-drinking celebration the night before.
Johnson had a good deal to celebrate. With determination and talent, he had built a tailoring business in his home town of Greeneville in the hill country of East Tennessee. He prospered in real estate deals and rose steadily through every level of government, serving as alderman, mayor, state senator, congressman, governor, and senator. Now he would become vice president, one step from the pinnacle of American politics. He was proud of his plain origins and his high achievements. He had a right to be.
It was a daunting time to come to the highest level of the American government. After almost four years of slaughter that took 600,000 lives on both sides, the Civil War was coming to its ghastly close. Somehow the nation would have to be reunited "reconstructed" was the favored term. President Lincoln worked to temper the military victory with compassion for the defeated, to quench both the rebellion and the fiery politics that kindled it, knitting together the bitter enemies of a long war. To restore a shared sense of being Americans, he preached national unity. Lincoln's Republican Party had changed its name to the "Union Party" for the 1864 election. Picking Johnson a Southerner and a Democrat to run for vice president had been part of that message of national unity.
Until the Republicans nominated him for vice president, Johnson was best known for a single courageous act. In 1861, the senators and congressmen from eleven Southern states had to decide whether to follow their states into rebellion. Only one, Senator Andrew Johnson of Tennessee, stood with the Union. Since 1862, Johnson had been Tennessee's military governor, struggling to manage a state crisscrossed by contending armies. By adding Johnson to their ticket, Republicans hoped to appeal to Democrats and show that they were not just a Northern party. Though Lincoln's modern reputation now towers over the era, he feared the judgment of his countrymen in the 1864 election. On August 23, just a few weeks before the voting began, he confessed in a private memorandum that he expected the voters, weary of the long and bloody war, to reject him and return the Democratic Party to power.
In the election, Lincoln and Johnson won 55 percent of the vote, carrying all but three states, while the Republican Party won dominating majorities in Congress. Republicans had a 149-to-42 margin in the House of Representatives and controlled the Senate, 42 to 10. Having Johnson on the ticket probably helped, though far more important was a rush of Union military successes the fall of Atlanta, the conquest of Mobile Bay, and victories in Virginia's Shenandoah Valley.
The procession for the Lincoln and Johnson inauguration stepped off from the White House at 11 a.m. Thousands of marchers, dripping wet, plunged into streets thick with mud. The military escort included units of white soldiers and some of Negro troops, followed by brass bands, fire companies drawing their engines, and the lodges of Odd Fellows and Masons. Lincoln and Johnson did not march. They were already in the Capitol Building, sixteen blocks away, out of the nasty weather.
The vice president's ceremony was to be in the Senate chamber, familiar ground for Johnson. Standing in that chamber in the winter of 1861, he had pledged never to abandon his country. "I am unwilling," he declared then, "to walk outside of the Union which has been the result of the Constitution made by the patriots of the Revolution." Now, four years later, the Senate was vertically segregated for his inauguration. The galleries above, except for the press and diplomatic seats, were reserved for ladies. The Senate floor held members of Congress, executive officials, and the diplomatic corps. Lincoln's seven-man Cabinet was at the very front, to the right of the main aisle.
Before the ceremony began, Johnson waited in the office of Vice President Hannibal Hamlin, the man the Republicans dumped from their ticket to make room for Johnson. Hamlin, an antislavery man from Maine, had offered too few political advantages for the critical election. Sitting with Hamlin and Hamlin's son, a Union Army general, Johnson was out of sorts. "Mr. Hamlin," he said, "I am not well, and need a stimulant. Have you any whiskey?"
Vice President Hamlin, a teetotaler, had banned the sale of liquor in the Senate restaurant. To accommodate his guest, he sent out of the building for a bottle. When the whiskey arrived, Johnson tossed down a tumbler of it, straight. Feeling reinforced, he announced that his speech at noon would be the effort of his life. Then he polished off a second glass of whiskey. Word came that it was time to start. Hamlin offered Johnson his arm. The two men passed a few steps down the corridor when Johnson turned back to the vice president's office. He quickly poured out a third glass of whiskey and drank it down. Hamlin looked on in amazement, according to his son: "[K]nowing that Johnson was a hard drinker, [Hamlin] supposed that he could stand the liquor he had taken." Unfortunately, on his own Inauguration Day, he could not.
Arm in arm, the outgoing and incoming vice presidents entered the Senate Chamber. They took their places on the dais. Hamlin began with brief and gracious remarks, thanking the Senate for its courtesies toward him as its presiding officer for the last four years. It was Johnson's turn. He faced the gathering. A solidly built man of medium height, Johnson was an experienced and confident speaker. His oratorical style was forceful and direct, with an adversarial edge that could inflict injury on his opponents. Johnson spoke that day without notes, as he usually did, but could not be heard well at first. Quickly, the audience could tell that something was wrong. Johnson's face glowed a luminous red. His sentences were incomplete, not connected to each other. At the biggest moment of his life, on the most prominent stage he had ever occupied, the man was drunk.
"Your president is a plebeian," Johnson announced. "I am a plebeian glory in it Tennessee has never gone out of the Union I am going to talk two and a half minutes on that point, and want you to hear me Tennessee has always been loyal."
Hamlin tugged on Johnson's coat from behind. "Johnson," he hissed, "stop!"
Johnson looked down at the Cabinet members arrayed before him. Calling to each by name, he advised them to remember that their power came from the people. When he got to the secretary of the navy, Gideon Welles, memory failed. Leaning over to a Senate official, Johnson asked in a stage whisper, "What is the name of the secretary of the navy?" Johnson continued, reminding the chief justice that his power, too, derived from the people. Hamlin tugged Johnson's coat again, imploring him to desist. Johnson, elated by the moment or simply oblivious, rambled on.
Sitting closest to the dais, the Cabinet Secretaries began to mutter among themselves. "All this is in wretched bad taste," complained Attorney General James Speed, adding, "The man is certainly deranged." Speed closed his eyes as Johnson kept on speaking. "Johnson is either drunk or crazy," whispered Navy Secretary Welles, whose name had eluded the new vice president. War Secretary Edwin Stanton, his features petrified, replied, "There is something wrong." The postmaster general's face flushed with embarrassment. A few of the senators and congressmen smirked. Most fidgeted anxiously, shifting in their seats, "as if in long-drawn agony." One senator placed his head on the desk before him. A Supreme Court justice showed an expression of "blank horror." Johnson spoke for more than fifteen minutes.
After a period, President Lincoln entered the Senate with several others. Hamlin took direct action. He stood to administer the oath of office to his successor. After mumbling the oath, Johnson grabbed the Bible on which his hand rested. Brandishing it before the crowd, he cried out, "I kiss this Book in the face of my nation of the United States." The mortifying spectacle was over.
Luckily, the rain relented, allowing the president to take his oath outdoors, on a platform on the east side of the Capitol. The dignitaries, shaking their heads in dismay, filed out of the Senate. They joined thousands who waited to hear Lincoln's Second Inaugural Address. The gloom and anxiety of Johnson's ceremony dissipated in the fresh air, scrubbed clean by the rain. As the tall president stepped forward to speak, an observer wrote, "the sun burst forth in its unclouded meridian splendor and flooded the spectacle with glory and light." With biblical cadences and a triumphant sadness, Lincoln's prepared speech gave Americans the reasons for their terrible sacrifices during the war. He also spoke, stirringly, of peace.
Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn ith the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether." With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace....
Lincoln's eloquence could not wash out the stain of Johnson's rant. Many in the audience knew Johnson from his long public career. They knew he appreciated liquor. A Tennessee rival once recalled uncharitably that Johnson always "enjoyed the meanest whiskey hot from the still,...stuff which would vomit a gentleman." A visitor to Johnson's office in Tennessee had concluded that he "took more whisky than most gentlemen would have done, and I concluded that he took it pretty often."
But Johnson had never been drunk on a public occasion, and certainly not on such an important one. A few days later, Lincoln offered the best defense he could to Hugh McCulloch, secretary of the treasury. "I have known Andy Johnson for many years," the president said. "He made a bad slip the other day, but you need not be scared; Andy ain't a drunkard." More candid was the letter of a Michigan senator to his wife: "The Vice President Elect was too drunk to perform his duties & disgraced himself & the Senate by making a drunken foolish speech."
The verdict was universal. Johnson's speech, which he wanted to be the effort of his life, had been a disaster. Treasury Secretary McCulloch thought the new vice president humiliated his friends. A future member of Johnson's Cabinet wrote that the vice president "disgusted all decent people who heard him." The appalling quality of his performance was captured by the correspondent from the Times of London, whose reporting was not inhibited by any feelings of national pride:
All eyes were turned to Mr. Johnson as he started, rather than rose, from his chair, and, with wild gesticulations and shrieks, strangely and weirdly intermingled with audible stage whispers, began [his] address....[Johnson's] behavior was that of an illiterate, vulgar, and drunken rowdy, and, could it have been displayed before any other legislative assembly in the world, would have led him to his arrest by the serjeant-at-arms....M r. Johnson was so proud of the dignity into which fate had thrust him that he boasted of it in the language of a clown and with the manners of a costermonger.
The vice president retired from the Washington scene for several days, recuperating at a nearby estate. He was back in Washington later in March, but rarely presided over the Senate, choosing to stay out of sight. The injury to Johnson's stature could not be calculated. From that day on, whenever he made a controversial statement, many assumed he had been drunk.
Six weeks after the inauguration, on the morning of April 15, Abraham Lincoln lay dead, struck down by an assassin's bullet. John Wilkes Booth, an acclaimed actor and Confederate sympathizer, had organized a desperate conspiracy to kill the North's leaders. Booth himself shot Lincoln at Ford's Theater, inflicting the head wound that took the president's life. At the same time, a second man attacked Secretary of State William Seward in his home, where Seward was recuperating from a broken jaw and dislocated shoulder suffered in a recent carriage accident. The assailant almost crushed the skull of Seward's son, stabbed two other men, then slashed open Seward's face and arm. A third conspirator was assigned to kill Andrew Johnson at his room at Kirkwood House. That man, after having a drink to steady his nerves, thought better of the enterprise and hightailed it out of town.
In life, Lincoln had been a controversial figure. He won the presidency in 1860 with only a plurality of the popular vote. His reelection in 1864 was no landslide; he commanded 55 percent of the vote in an election that did not include the Southern states still in rebellion, where he would have been lucky to get one vote in ten. The tragedy of his death began to chip away at any clay feet. The historical Lincoln would eclipse the real Lincoln, rising as a figure of almost mythic resonance for Americans. The president who succeeded Lincoln was bound to be judged by high standards.
Andrew Johnson took the oath of office as the nation's seventeenth president between ten and eleven on the morning of April 15, in his room at Kirkwood House. The days were turbulent. The war was ending. Six days before, Robert E. Lee and the Army of Northern Virginia had surrendered at Appomattox Court House. Joseph Johnston's army in North Carolina would yield in a week. The states would be reunited. To Johnson would fall great challenges. He would need to relieve the enmity born of four years of vicious bloodletting. He would need to bring North and South together, recreating a shared national identity. He would need to help integrate four million freed slaves into American society. As a Southerner and a Democrat who stood by the Union, he could serve as the bridge between the nation's warring regions, fostering peace and reconciliation. Or, as a Southerner and a Democrat, he could perpetuate the sectional hatred that brought war in the first place.
Copyright © 2009 by David O. Stewart
Table of Contents
1 Bad Beginnings: Spring 1865 5
2 President Johnson: April 1865 14
3 Land of Revolution: November 1865 27
4 The Opposition Gathers: December 1865 36
5 A Government Divided Against Itself: January-June 1866 46
6 Political War: July-November 1866 59
7 False Start on Impeachment: December 1866-June 1867 74
8 The Dangerous Sphinx: August-November 1867 87
9 Impeachment, Round Two: December 1867 100
10 Impeachment, Round Three: December 12, 1867-February 15, 1868 114
11 Showdown on Seventeenth Street: February 15-21, 1868 127
12 The Dam Bursts: February 22-24, 1868 138
13 The Waterloo Struggle: February 24-March 4, 1868 151
14 Send in the Lawyers: March 5-29, 1868 167
15 Influence and Edmund Cooper: March 1868 181
16 Ben Butler's Horse Case: March 30-April 8, 1868 193
17 Defending the President: April 9-20, 1868 206
18 Counting to Seven: April 1868 219
19 An Avalanche of Talk: April 22-May 6, 1868 229
20 The Dark Men: May 5-9, 1868 240
21 Scrambling for Votes: May 6-12, 1868 250
22 Desperate Days: May 12-15, 1868 260
23 Free Again: May 16-26, 1868 275
24 Searching for Scandal: May 17-July 5, 1868 284
25 The Caravan Moves On: January 1, 1869- 300
26 The Rorschach Blot 315
Appendix 1 The Impeachment Provisions in the Constitution 327
Appendix 2 The Tenure of Office Act 329
Appendix 3 Impeachment Articles 331
Appendix 4 The Senate Votes 343