The troubled president sought solace in history and in familiar things. He read and reread Addison’s Cato, committing parts to memory and comparing present-day senators to those portrayed in the play. He reflected at length on a sermon he heard at St. Patrick’s Church, observing that there was nothing more depressing than “to labor for the people and not be understood. It is enough to sour [a man’s] very soul.” Then he was back to ancient Rome, comparing his situation to that of the Gracchi brothers, tribunes of the people who were murdered at the instigation of the Roman Senate. “This American Senate,” he insisted, “is as corrupt as was the Roman Senate.” Johnson dug out a weathered collection of political speeches, the first book he ever owned, given to him before he learned how to spell. He turned to the speeches of Lord Chatham (William Pitt the Elder), denouncing British policy toward the American colonies. Johnson lingered over Chatham’s statement that “no tyranny is so formi[d]able as that assumed and exercised by a number of tyrants.” For Johnson, the parallel to Thad Stevens’s Congress was unmistakable.
Johnson’s closest adherents expected the worst. Navy Secretary Welles judged that every member of the Cabinet thought the president would be convicted.
But the unexpected can happen in a trial, and in politics. Everyone was nervous. Everyone was excited. The battle was about to be joined.
BEN BUTLER’S HORSE CASE
MARCH 30–APRIL 8, 1868
[The impeachment committee] put in the forefront of its battle a lawyer whose opinion on high moral questions…nobody heeds…and whose want…of decency, throughout the case gave the President a constant advantage.
THE NATION, MAY 21, 1868
EVEN BRASH BEN Butler felt intimidated. Waiting to give the opening statement on the first full day of trial, Monday, March 30, “I came as near running away then as ever I did on any occasion in my life.”
Rising to address the Senate, Butler was not a commanding figure. One observer described him as “short, broad-shouldered, short-legged, fat, without much neck, but with a good many flaps around the throat, standing as if a trifle bow-legged…[with] a great cranium of a shining pink color.” Another complained of his raspy voice, like a cross-cut saw. A third deprecated his enunciation as “neither silvery nor distinct.” On this day, Butler lost his usual swagger. Cowed by the significance of the moment, he clutched his papers close to his face while nervously reading a three-hour speech.
Crowded to suffocation, the Senate galleries bloomed with bright feminine costumes. Many remarked on Butler’s daughter Blanche, her youthful beauty contrasting with her father’s singular appearance. Equally lovely were Chief Justice Chase’s daughter Kate, whose husband Sprague was at his desk on the Senate floor, and the notorious former Confederate spy, Belle Boyd, with “very black eyes and a very blue veil.” Only two “Africans” were there, as was British Ambassador Edward Thornton.
Ben Butler delivers the opening statement for the prosecution, March 30.
The managers sat at the table to the left of the chief justice, facing him. The table for the defense team was to the right. Butler regretted that the prosecution was “too weak in the knees” to demand that Johnson attend the trial. The Massachusetts Radical had argued for compelling his appearance, forcing him “to stand until the Senate offered him a chair.” In truth, Johnson ached to gratify Butler’s wish. That morning, he felt again “strongly impelled” to attend the trial. His lawyers once more dissuaded him from being Exhibit A in a spectacle managed by Ben Butler and Thad Stevens. Allowing himself to be dragged into the Senate would diminish the presidency, they argued. Johnson should remain above the battle.
Though many listeners were disappointed by Butler’s restrained presentation that day, the speech was as solid as the ill-constructed prosecution permitted. Eight impeachment articles focused on the confrontation between Stanton and Thomas, and the Tenure of Office Act. Butler emphasized those articles, charging that the president claimed a “most stupendous and unlimited prerogative” to ignore the statute when he replaced his war secretary. The manager admitted that the last three articles—the General Emory charge, Butler’s own stump-speech article, and Stevens’s catchall Article XI—were diminished by the “grandeur” of the first eight. Butler thus created a logical inversion, calling the eight narrow articles (thought “trifling” by Stevens) truly grand, and disparaging the three broad ones as slight. To justify all eleven articles, the manager had to define an impeachable offense expansively; it was, he said, any act that subverted a “fundamental or essential principle of government or [was] highly prejudicial to the public interest.” The question before the Senate, he contended, was whether Johnson, “because of malversation in office, is no longer fit.”
In a passage that drew much criticism, Butler told the Senate that it was “bound by no law, either statute or common.” The senators, he continued, were “a law unto yourselves, bound only by natural principles of equity and justice.”
Without an explicit constitutional provision granting or denying Congress the power to adopt the Tenure of Office Act, Butler marshaled the historical precedents that supported the statute. In The Federalist, Alexander Hamilton had insisted that the Senate’s consent would be necessary under the Constitution “to displace as well as to appoint.” Not only had Congress in the 1790s defined the president’s power to remove high officials, but it again asserted its power over the question in 1863 when it set a term for the comptroller of the currency, and in 1866 when it directed that military officers could be removed only by impeachment. Johnson himself signed the 1866 statute. Johnson followed the procedures of the Tenure of Office Act when he suspended Stanton the prior August. The House manager agreed that Johnson could challenge the constitutionality of a law by violating it, but only at his peril. “[T]hat peril,” Butler continued, “is to be impeached for violating his oath of office.” Butler botched his discussion of Article XI, stating incorrectly that acquittal on the other charges would require acquittal on the catchall article.
Butler offered the customary comparisons between the president and despots of yore (Caesar and Napoléon). He described Johnson as “thrown to the surface by the whirlpool of civil war,” and acceding to the presidency as “the elect of the assassin,…and not of the people.” Butler blamed Johnson for Southern murders of freedmen and white Unionists, “encouraged by his refusal to consent that a single murderer be punished, though thousands of good men have been slain.” On the Senate’s verdict, he warned, the welfare and liberties of Americans “hang trembling.”
Managers Wilson and Bingham then read into the record the prosecution’s first evidence, the presidential oath of office and the president’s December letter justifying his removal of Stanton under the Tenure
of Office Act. Having sat from 12:30 until 5 P.M., the Senate called it a day.
The prosecution’s case took five days to present, with the Senate sitting as a court from noon to five, through Saturday. In the unseasonably warm weather, it seemed longer. Throughout the week, attendance declined in the galleries and among the congressmen. Ladies brought knitting and novels to their seats. Senators wrote letters at their desks. The fourth day was the nadir, according to one newspaper, “intensely dull, stupid, and uninteresting.” By Saturday, April 4, senators had to be herded back into the chamber after a recess, and the galleries were half-empty. Fewer than fifty House Republicans showed up for the hearings on Friday and Saturday, some playing hooky to catch the afternoon show of Dan Rice’s traveling circus. (The circus included a political element befitting the season; the animal acts were interspersed with pro-Johnson monologues by Mr. Rice.) When Butler announced the end of the prosecution case, impeachment supporters were deflated.
Some sense of anticlimax was unavoidable. No one could sustain the fevered emotions of the early impeachment days. Moreover, the taking of factual evidence is mostly a businesslike affair. Even in the Senate Chamber, the rhythmic catechism of question and answer offers few opportunities to cry
out for justice or to compare adversaries to legendary tyrants.
Also, everyone already knew the interesting facts. Newspapers had printed complete accounts of the confrontation at the war office, plus summaries of the testimony taken by the House managers in their preparations. President Johnson’s unfortunate addresses in 1866—the basis for the stump-speech article—had circulated around the nation. Compelling testimony might have come from Edwin Stanton, but the managers had good reasons not to present him. If Stanton left his office for an afternoon, Lorenzo Thomas could slip in and change the locks, undermining the case. Also, Stanton could be a disaster as a witness. He would have to explain why he should remain in office against the wishes of the president he had assiduously disserved. A skilled cross-examiner might goad Stanton into revealing his native arrogance, an unattractive quality in a witness. Butler likely was content to leave the war secretary undisturbed at his bivouac.
Left with mostly dull testimony, Butler did the best he could. The first meaty witness was the fourth one, a Republican congressman from Niagara County, New York. Burt Van Horn, one of the group in Stanton’s office when Thomas arrived on February 22, was the shorthand writer who jotted down on an envelope the exchange between dueling war secretaries. Another Republican congressman who was then in Stanton’s office echoed Van Horn’s testimony.
With the sixth witness, the congressional delegate from the Dakota Territory, Butler began to take the wheels off his own case. Walter Burleigh was a friend of Adjutant General Thomas. Butler wanted Burleigh to relate Thomas’s statements on the evening of February 21, before the adjutant general attended the masquerade ball at Marini’s Hall. Stanberry objected that the testimony was irrelevant. When a senator requested that the objection be submitted to the Senate for decision, the chief justice demurred. Referring to himself in the third person, Chase announced that “the Chief Justice is of opinion that it is his duty to decide preliminarily upon objections to evidence.” If a senator disagreed with the chief justice’s ruling, he could ask the Senate to overrule it.
On every possible ground, Butler objected. Chase’s procedure would bias evidentiary rulings during the trial, he argued, since the Senate would defer to the chief justice’s initial decision on an issue. Worse, the House managers could not themselves appeal for a Senate vote, but would have to rely on some friendly senator to do so. Reciting seventeenth-century English precedents, Butler expressed concern that Chase’s procedure could be abused by a future chief justice who would not be as admirable a jurist as Chase: “We have had a Johnson in the presidential chair,” he warned, “and we cannot tell who may get into the chair of the Chief Justice.” Having sat quietly for almost two days, Managers Bingham and Boutwell chimed in. Then Butler popped up with a few more choice remarks.
The Senate’s response was utter confusion. After wrangling through five inconclusive roll-call votes on procedural motions, the senators retired for an executive session on the subject. Then the Senate adopted a rule that followed Chase’s proposed procedure. Adjournment at 6:30 P.M. was a blessing.
That evening, the defense team must have chuckled all the way back to the White House. Defense lawyers ordinarily yearn for procedural snarls and quibbles over motes—anything that will distract the court from the prosecution case. With only slight provocation from the imperious Chase, the managers and the Senate had sunk into the sort of contentious squabble that the defense craved. What a capital sight, watching the managers climb over each other in their eagerness to derail their own case with indignant speeches on a not very important dispute! After battling manfully over the Senate’s procedure for resolving evidentiary issues, what senator could even remember Burleigh’s testimony, much less that the fate of the Republic hung in the balance?
The next morning, the managers, at their regular pretrial meeting at 11 A.M., fumed over the Senate’s failure to adopt a rule that would bar the chief justice from casting a tie-breaking vote (as the vice president does in legislative matters). Butler proposed that the managers withdraw from the trial in protest. They should, he said, ask the House of Representatives for instruction on the question. Though supported by Stevens and Boutwell, his proposal lost 4 to 3. After the managers trooped into the chamber, Senator Charles Sumner proposed a rule to bar such a tie-breaking vote by the chief justice. The motion lost.
At this point, the advocates settled in for two more hours of debate over whether Delegate Burleigh should be allowed to relate his conversation with Lorenzo Thomas. Finally, by a margin of 39 to 11, the Senate said yes. The payoff for this stupefying exercise was Burleigh’s description of the adjutant general’s presumably inebriated pledge to take control of the War Department Office, to “meet force by force,” and to break down any doors that were barred to him. Butler had used more than four hours of the Senate’s time to secure a few minutes of mildly titillating testimony that would sway not a single vote.
The Senate Chamber during the impeachment trial.
The president’s lawyers recognized the opportunity before them. They started to use the evidentiary procedures to have some fun. William Evarts interposed frequent objections to Butler’s questions, triggering the same excruciating sequence. If Butler rephrased the question to meet the objection, Evarts raised a new one. And another. Finally, in exasperation, Butler would write out his question and hand it to the chief justice to read to the Senate. The lawyers then exchanged volleys over the virtues and vices of the written question, and a roll-call vote would decide whether the witness had to answer. If the Senate allowed Butler to press that question, Evarts protested the next one.
The prosecution threatened to become a Dickensian satire of itself. The ratio of procedural scuffling to actual testimony was soaring. Topping off the chaos was the weird vision of Adjutant General Thomas buzzing around the building in his full dress uniform. Having been advised that he might be called as a prosecution witness, Thomas restlessly wandered the Senate Chamber, flitting from the gentleman’s gallery to the ladies’ gallery to the press gallery.
At the end of the second day of evidence, Butler caught a small break. His witness was an ingratiating gentleman from Delaware, George Karsner, who had encountered Thomas at a White House reception on March 9. Butler summoned Karsner to testify that Thomas promised to kick Stanton out of the War Department, a shred of evidence of barely marginal interest. Karsner explained that he exhorted Thomas (a fellow native of Delaware), “General, the eyes of Delaware are on you!” The phrase brought a roar of delight from the entertainment-starved chamber. The chief justice laughed until he shook. It became a catchphrase for the impeachment season, somehow capturing the contrast between the trial’s quotidian reality and its epochal significance.
After Karsner, Butler’s case slid downhill. A powerful thunderstorm rattled the Capitol building on Thursday, April 2, blowing dust through its corridors. Black clouds darkened the Senate’s skylights, leaving the chamber dramatically lit by gas lamps during the daytime. Another congressman testified about the faceoff between Thomas and Stanton. General Emory of the Washington garrison and his senior aide gave testimony that did not really support the ninth impeachment article. Then the managers began a parade of ever more dreary witnesses. Some testified about the form of commissions issued to executive officials. More described their shorthand practices in recording the president’s speeches. Butler’s attention to such minute points reflected the practices of a time when most documents were handwritten. Forgery and misrepresentation were constant risks. Still, with defense lawyers launching objections at will, the case slowed to a crawl. This was not the “railroad speed” promised by Butler; it was tedium. As one Radical wrote in dismay, “What bores us, disgusts us.”
Butler even offered evidence surrounding the unsuccessful appointment of Edmund Cooper as assistant treasury secretary. Noting Cooper’s close ties to the president, Butler offered a convoluted motivation for Cooper’s appointment. According to the House manager, Johnson wanted to place “his man, his
Secretary” at Treasury so Cooper could approve expenditures to be incurred by a future war secretary whom Johnson would appoint illegally to replace Stanton. Butler insisted that Cooper’s appointment violated the Tenure of Office Act. The president’s lawyers replied that Cooper’s appointment had nothing to do with the offenses described in the impeachment articles. The Senate agreed.
Like every trial lawyer, Butler wanted to end his case on an upbeat note. His final crescendo came from a letter sent by Treasury Secretary Hugh McCulloch in August of 1867, when Johnson suspended Stanton. The letter stated that Stanton was suspended under the Tenure of Office Act, directly contradicting the assertions of the president’s lawyers that Johnson had acted under his constitutional powers. The defense, caught flat-footed, reacted with a consternation that had to delight the managers. With this modest flourish, the direct evidence against Andrew Johnson was closed.
The Senate adjourned until the next Thursday, giving the president’s lawyers three extra days to prepare their defense.
Republican newspapers declared victory. The managers, according to the Philadelphia Press, “demonstrated beyond doubt or cavil the truth of every assertion contained in the impeachment articles.” Other newspapers disagreed. “It is very generally conceded,” the New York Herald reported, “that the evidence in the impeachment trial is too weak to hold water.” Stanberry, maintaining the defense position that an impeachable offense must be a crime, claimed that a court would dismiss the managers’ case for failing to prove the president had criminal intent when he sent Thomas to replace Stanton.
Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy Page 22
