The Democrats’ appeal in the local elections of 1867 started with raw racism, a potent political weapon in every part of the country. Though Northerners made huge sacrifices to end slavery, many agreed with Johnson that the nation should have a white man’s government. The Republican Speaker of the House of Representatives, Schuyler Colfax of Indiana, stated, “I never believed in Negro equality.” Voters in Connecticut, Minnesota, and Ohio defeated proposals to grant the vote to their few black neighbors. The Democratic candidate for governor in Ohio promised to fight “the thralldom of niggerism.” Ben Wade, firmly committed to Negro suffrage and equality, summed up the election results: “The nigger whipped us. We went in on principle, and got whipped.”
Thad Stevens read the election returns differently. “I take the occasion to thank God for our late defeat,” he wrote. “The Republicans have been acting a cowardly part, and they have met a coward’s fate.” Win, lose, or draw, Stevens always wanted to attack. He and the president shared that quality. Still intransigent, still itching to take Johnson on, Stevens was laying plans for fresh confrontations when Congress reconvened in December.
At the War Department, Grant continued to resist Johnson’s policies. He, too, did not give up easily. Johnson once more hoped Sherman would deliver him from this sphinxlike opponent. The president called Sherman to Washington and hinted that he could be secretary of war. But the ties of military comradeship between the two generals were too strong. Sherman spurned the bait and fled back to St. Louis, writing to his brother, “I cannot place myself in a position even partially antagonistic to Grant.”
As senators and congressmen returned to Washington for their new session in December 1867, an escalation of the conflict seemed certain. Johnson felt revived. He had gotten rid of Stanton, Sheridan, and Sickles, yet had suffered no terrible political consequences. The election returns were encouraging. The time was right, he felt, to press these modest advantages.
Those same developments made Republicans even angrier. Despite the election results, they remained a powerful force. With overwhelming control of both houses of Congress, and led by the implacable Stevens, the Republicans would not miss the opportunity to use their majorities. Johnson himself was not popular. His ouster of Sheridan made the cavalryman an even greater hero in the North. In a triumphal procession, Sheridan was cheered by enthusiastic crowds in Baltimore, Wilmington, New York, Brooklyn, and Boston.
Both the president and congressional Republicans would have to deal with a new factor in their political calculations. Between them—really much closer to Congress than to Johnson—stood Ulysses Grant. Though new to high-level politics, he was no stranger to strategy and tactics. As Congress and the president circled each other warily, each looking to gain ground against the other, perhaps to administer a coup de grâce, Grant stood on the most critical ground in the fight—at the War Department, in charge of the military. Not only that, his stature with the public was too great for anyone to ignore. With Grant holding the pivot of the contest, the battle would be joined again in the poisonous political climate of Washington City.
IMPEACHMENT, ROUND TWO
DECEMBER 1867
If the great culprit had robbed a till; if he fired a barn; if he had forged a check; he would have been indicted, prosecuted, condemned, sentenced, and punished. But the evidence shows that he only oppressed the Negro; that he only conspired with the rebel; that he only betrayed the Union party; that he only attempted to overthrow the Republic—of course he goes unwhipped of justice.
NEW YORK INDEPENDENT, DECEMBER 12, 1867
IMPEACHMENT WAS DEAD. So said Thaddeus Stevens in mid-November 1867, as he planned for the session of Congress that would begin in two weeks. A few days earlier, the House Judiciary Committee had resumed its impeachment hearings, but the witnesses covered old ground: the pardoning of Union Army deserters in West Virginia; the supposed conspiracy between Johnson and Confederates during the war; and government printing contracts awarded to local printers (a rich source of patronage). Newspapers were more interested in the meteor displays that lit East Coast skies in early morning hours. “They swept through the air,” one report enthused, “with almost the speed of thought and left long luminous trains in their wake.”
Impeachment advocates had to choose between two approaches, neither very appealing. They could adopt Stevens’s theory that Johnson had upended the constitutional structure in order to deliver power to ex-rebels. This approach had the virtue of simplicity—it involved uncontested facts about the president’s policies—but it felt abstract, theoretical. Moreover, it could be challenged as not presenting a true impeachable “crime.” Alternatively, the impeachers could stitch together a prosecution based on specific actions investigated by the committee. But the truly heinous actions the committee examined (Lincoln’s assassination, conspiring with the Confederacy) had only vaporous connections to Johnson, while those authored by him violated no law. Stevens saw the situation clearly. The prospects for impeachment were dim.
Those prospects darkened further when the last committee witness, impeachment advocate James Ashley of northern Ohio, gave testimony that bordered on the delusional. A pharmacist whose fiery abolitionism led him into politics, Ashley had worked feverishly to tie Johnson to the Lincoln assassination. The trail led to a con man of many names—variously Charles A. Dunham, or Sanford Conover, or James W. Wallace. In jail for perjury, Dunham-Conover-Wallace offered tantalizing hints linking Johnson to Booth. The overeager Ashley visited this slippery witness in prison. Dunham-Conover-Wallace promptly accused Ashley of suborning perjury. Chastened, the Ohio congressman admitted in late November that he had no “sufficient” evidence connecting Johnson to the assassination. Pressed for what evidence he did have, Ashley disclosed to the committee that two vice presidents had murdered the presidents they succeeded in office:
I have always believed that President [William Henry] Harrison and President [Zachary] Taylor and President [James] Buchanan were poisoned, and poisoned for the express purpose of putting the Vice Presidents in the presidential office. In the first two instances it was successful. It was attempted with Mr. Buchanan and failed….
Armed with Ashley’s theory of presidential demise, Johnson supporters could persuasively portray the impeachers as lunatics, or at least as entirely unreliable.
Despite Ashley’s escapade, on November 25 the House committee approved an impeachment resolution, reversing its 5-to-4 vote from five months earlier. The switch came because one congressman, Republican John Churchill of upstate New York, changed his mind. In a letter to the New York Times, Churchill gave his reasons for reversing his vote: Johnson’s statements denouncing Reconstruction, the attorney general’s opinions limiting the Reconstruction statutes, Johnson’s veto of the Third Reconstruction Act, the suspension of War Secretary Stanton, and the ousters of Generals Sheridan and Sickles.
Churchill’s switch pushed the impeachment resolution out of the committee, but its chances in the full House were far from robust. Committee Chairman James Wilson of Iowa and another Republican opposed it. Before the committee even issued its report, the press predicted defeat. The New York Times counted more than 100 votes against impeachment, with only half as many in favor. The Associated Press found but 40 proimpeachment votes, while a Philadelphia newspaper claimed 57.
Though it was largely stillborn, this impeachment resolution highlighted the central ambiguity of American impeachments: what is an impeachable offense? Until this moment, the House had impeached judges who committed indictable offenses, and those accused of abusing their offices so thoroughly—without committing an actual crime—that they should be removed. Leading constitutional scholars of that era agreed that impeachment applied to both types of cases. But the defeat of this resolution would tilt presidential impeachment toward requiring an indictable offense, sapping impeachment of much of its political content and beginning its transformation into a legalistic hunt for a “crime.”
Stevens could h
ave prevented the doomed impeachment resolution from coming to a vote, but he did not. No matter how poor its prospects, this resolution might present his only chance for an up-or-down count on whether to remove Andrew Johnson. Time was running out. Stevens’s health was failing daily. In August, the once athletic Stevens wrote a friend that the day had come when he could “no longer attempt to hurl the discus or bend the bow of Ulysses.” When he left Lancaster for Washington in mid-November, his physician sent along extensive instructions for the treatment of heart and digestive ailments.
The press followed Stevens’s health closely, an early example of celebrity journalism. Daily dispatches described how frail the Pennsylvanian looked and what his friends related about his condition. On November 19, he made it to the Capitol, several men carrying him into the building from his carriage. Some reports disparaged his mental faculties. The New York Herald wrote that Stevens’s conversation was “disconnected and broken, with frequent pauses,” and showed “a great effort to confine himself to a consecutive train of thought.” He could flash into coherence, according to the Boston Post, but then “the fire would die out, leaving him more the appearance of a corpse than a living man.” Still, several correspondents thought that the political battle was reviving Old Thad. Republican politicians laid siege to his modest home near the Capitol, seeking his advice on current matters. Stevens rallied. When colleagues offered to assist him to his seat in the House chamber, he declined, snorting, “I am not as dead as some of my newspaper friends have reported me.”
For Stevens, the grounds for impeaching Andrew Johnson remained straightforward. “Why, I’ll take that man’s record, his speeches, and his acts before any impartial jury,” he boasted, “and I’ll make them pronounce him either a knave or a fool.” But the Senate’s role was not to judge whether Johnson was a knave or a fool. It was to decide whether he should be removed from office under the impeachment clauses of the Constitution.
The House Judiciary Committee issued three reports on the impeachment resolution: the majority report, written principally by Representative Thomas Williams of Pennsylvania, and two minority reports, one by Chairman Wilson and the other signed by the committee’s two Democrats, which was generally ignored. The public announcement of the committee’s report was a historic moment. Many senators came to the House Chamber to view the spectacle. The galleries had neither standing nor sitting room, “nor hardly breathing room.” When the report was presented, one newspaper wrote, whites in the gallery hissed and blacks applauded.
For fifty-nine pages, Williams’s majority report wandered from broad denunciations of the president to disorganized factual allegations. The language was heated, depicting Johnson as claiming “more than kingly powers” and issuing “imperial proclamations.” The majority report claimed that Johnson’s offenses flowed from his goal of reconstructing the Southern states “in the interests of the great criminals who carried them into rebellion.” In dealing with the former rebels, the majority report said, the president had “pardon[ed] their offences, restor[ed] their lands, and hurr[ied] them back [into power]—their hearts unrepentant, and their hands yet red with the blood of our people.”
When it came to the president’s specific transgressions, the majority report fell flat. Its review of Southern railroad transactions established only that Johnson followed the advice of War Secretary Stanton, a Radical. The majority report criticized the return of confiscated land and cotton to wealthy rebels who had been pardoned by the president. Johnson fired loyal Union men from government service, the majority report complained, replacing them with former Confederates. Also recited were corruption in Henry Smythe’s New York Custom House, the New Orleans massacre (which supposedly was “encouraged” by Johnson’s pro-South bias), plus dark but unproved allegations of self-dealing during Johnson’s wartime service as military governor of Tennessee. The majority report argued that this hodgepodge proved Johnson had a master plan “to overwhelm the legislature and the courts, and usurp all the powers of government.”
The majority report’s final passages turned to the central legal question: what is an impeachable offense? The majority insisted that no indictable crime need be committed. It recited support from English legal sources, from Alexander Hamilton (who approved impeachment for “malconduct”), and from James Madison in early congressional debates, when he argued that a president could be impeached for the “wanton removal of meritorious officers.” The majority report also relied on several American treatises on the Constitution. One stated, for example, that impeachment charges could properly allege that an official “has, from immorality, or imbecility, or maladministration, become unfit to exercise that office.” Pointing to the four judges impeached before then, the majority report observed that most of the charges in those cases did not state criminal offenses.
The majority report also made an important point that would be submerged through much of the impeachment drama. When Johnson denied the legitimacy of a Congress without Southern representatives, Congress responded by restricting his powers as president. It shrank the Supreme Court so he could not appoint new members to it, then reduced his ability to fire underlings in the Executive Branch, then limited his ability to issue orders to the army. Rather than continue this “questionable process” of reshaping the government with a much smaller presidency, the majority report urged that the government be delivered into “the hands of those who will recognize the jurisdiction of Congress, and bow respectfully to its authority.” This was an apt description of how the bitter contest between Congress and Johnson was distorting the government. Congressional Republicans were not dissatisfied with the constitutional system, but with Andrew Johnson. Yet rather than use the constitutional impeachment process to remove the man, Congress had altered the structures of government in fundamental ways. It chopped back the executive’s powers, excluded Southern congressmen, and restricted the courts’ jurisdiction—all to limit the mischief that one man could do. Rather than contrive fresh distortions of the government, why not simply get rid of him?
Rep. James Wilson of Iowa, Chairman of the House Judiciary Committee and opponent of the first impeachment attempt.
The unfocused, rambling quality of the majority report obscured its valid points. The minority statement by Chairman Wilson of Iowa was almost as long, but far more forceful. Wilson, called by one newspaper “the most business-like lawyer in the House,” began by insisting that impeachment could be based only on a criminal offense. He argued that the Senate acted as a court “of special criminal jurisdiction” and must follow legal forms. For Wilson, once the senators took their oaths “to do impartial justice,” impeachment lost its political quality. Such a special court could consider only actual crimes. In an unsupported leap, he insisted that the Senate can try only offenses “known to the Constitution, or to the laws of the United States,” and that judicial rules of evidence must apply.
Wilson scavenged through other constitutional provisions to reinforce his argument. By rough force and incomplete logic, he attempted to coax support from unpromising constitutional text. When he turned to the four American impeachment cases, which involved numerous noncriminal allegations, Wilson employed lawyerly evasions. He dismissed one as wrongly decided (Judge Pickering), avoided any conclusive statement about another (Judge Peck), and skipped over the noncriminal aspects of the remaining two (Justice Chase and Judge Humphreys). Wilson’s discussion of English impeachment precedents was as murky and inconclusive as the majority’s had been.
Yet Chairman Wilson effectively answered the factual charges in the majority report. Tracing the battle over Reconstruction, he denied that Johnson usurped Congress’s powers, making the obvious point that Congress had overridden most of Johnson’s vetoes. As for abuse of patronage powers, Wilson noted that Johnson’s hirings and firings violated no laws; in fact, they followed the prevailing practices of the preceding fifty years. On pardons for Southerners, the restoration of Southern railroads, and other points, t
he Iowan countered that the president acted to achieve valid public purposes. Disagreement with the wisdom of a policy, he insisted, could not be the basis for impeachment.
In his conclusion, Wilson struck a resonant note. Johnson, he admitted, “deserves the censure and condemnation of every well-disposed citizen,” and “we must condemn him.” But Wilson denied that political considerations alone could support the impeachment: “Political unfitness and incapacity must be tried at the ballot box, not in the high court of impeachment.”
The most frustrating feature of the exchange between the majority and the minority reports is the problem that has confounded impeachment scholars and lawyers ever since: the tenacious opacity of the phrase “high crimes and misdemeanors.” The phrase was drawn from English impeachment precedents, but even after extended study those precedents prove incomplete, slippery, and contradictory. Each side found support in them. The American precedents supported the majority’s position that impeachment did not require an actual crime, but Wilson framed important practical considerations that appealed to the politicians in the House of Representatives. If impeachment is entirely political, what is the stopping point? If a president and his policies are unpopular, is that enough to impeach him? If you do that today to a president you do not like, will your opponents do it tomorrow to a president you do like?
The majority report was a dud. Harper’s Weekly sniffed that it did not “inspire general confidence,” while even the Radical Chicago Tribune disparaged its charges as “inferential and circumstantial.” The Tribune suggested that any trial covering “the score and more of accusations” against Johnson would last at least until the elections in the fall of 1868. With some glee, the New York Times called the report “a whitewashing” of the president, clearing him of the persistent rumors that he had conspired with Jefferson Davis and John Wilkes Booth. One Republican congressman recalled that “much of the evidence seemed irrelevant, and that which bore directly upon the question of the president’s offenses fell far below the serious character assigned to it by previous rumors.”
Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy Page 12
