The managers protested any testimony about the president’s statements to Sherman. If the defense wished to present Johnson’s statements, Butler insisted, they should produce the president himself. The defense lawyers replied, and Chief Justice Chase agreed, that the Senate had allowed Adjutant General Thomas to offer exactly such testimony. The Senate promptly reversed that ruling and refused to hear the testimony from Sherman. Stanberry struggled to get around the ruling and elicit from his witness the desired statements by Johnson, but without success. Stanberry brought Sherman back the following day for another try, but had no better luck.
The defense contrived a new tactic. On the following trial day, Monday, April 13, General Sherman took the stand for a third time. Senator Reverdy Johnson, a Maryland Democrat and ally of the president, posed a question. Did the president explain to General Sherman why he offered to appoint him as secretary of war? By a single vote, the Senate allowed Sherman to answer. Sherman gathered his thoughts for a moment, now that he finally would be permitted to share them.
Astonishingly, the general did not give the testimony the defense had labored for three days to present—that the president wished the dispute over the Tenure of Office Act to go to the courts. Johnson “did not state to me,” Sherman said, “that his purpose was to bring [the dispute] to the courts directly; but [said it was] for the purpose of having the office administered properly in the interest of the Army and of the whole country.” According to Sherman, when he asked Johnson why the matter was not before the courts, the president replied that it could not be. Wisely, the managers saw no need to cross-examine Sherman.
The general had confounded the defense lawyers and helped the prosecution by describing Johnson as uninterested in going to court. Sherman had undermined one of the president’s principal defenses. On the other hand, the Senate’s rulings on the admission of evidence perplexed everyone. The Senate allowed Thomas to testify about the president’s statements, then refused to hear such testimony from Sherman, then reversed itself again. These arbitrary changes in direction raised questions about the fairness of the trial.
On the night when Sherman’s testimony ended, another misfortune struck the defense. Stanberry, who had trained like a prizefighter for the trial, fell ill. It was pleurisy, a dangerous lung infection. The Senate granted the defense a one-day recess, but the president’s team would have to persevere without the lawyer Johnson trusted most. Stanberry would not be able to answer the bell for the next round.
The president brooded over his fate. Every night, he greeted an aide who attended the trial, William W. Warden, with the words, “Well, what are the signs of the zodiac today?” The news rarely cheered him. On Sunday, April 12, he heard a sermon on Chapter 12, third verse, of the First Book of Samuel, in which an old king walks among his people and self-righteously demands, “Whose ox have I taken? Or whose ass have I taken? Or whom have I defrauded? Whom have I oppressed? Or of whose hand have I received any bribe to blind mine eyes therewith?” Dwelling on the application of that verse to his situation, Johnson pulled from his shelf a Bible he had brought with him from Tennessee. He studied the passage. Colonel Moore, who sat with him, was struck by how keenly Johnson felt the injustice of the trial.
That night the president’s defenders met in the White House. A visitor recorded the scene. With Nelson, the Tennessee lawyer, sitting to one side, Curtis and William Evarts reviewed possible trial exhibits. Each time they turned to a document, they fretted that it could do as much harm as good. After a lifetime in courtrooms, Judge Curtis said, he “feared every new witness,” since the House managers “were fishing for evidence.” Evarts concurred.
The next day, when Sherman unexpectedly damaged the defense case and Stanberry took to his sickbed, the president was gloomy. The official events of his days only reinforced the nation’s troubles, both from the war and from the current struggle over Reconstruction. On April 15, the third anniversary of Lincoln’s death, Johnson presided over the dedication of a monument to the late president. Perched on a thirty-five-foot pedestal, the life-size statue stood in front of Washington’s City Hall. The ceremony was not entirely harmonious. General Grant declined to join Johnson on the platform, but stood on a nearby sidewalk. In Lincoln’s memory, War Secretary Stanton directed that a cannon be fired every half hour from sunrise to sunset. Demonstrating his control over the department, Stanton closed it at noon that day. The closing did little to disrupt a city that was transfixed by impeachment. Department heads reported that never before had government workers performed so few duties.
On April 16, Johnson greeted a Union Army veteran, Sergeant Gilbert Bates, who had executed a personal project to unite the country. As a gesture of reconciliation with Southerners, Bates walked 1,400 miles from Vicksburg, Mississippi, to Washington City, carrying an American flag. He gave Johnson the flag along with messages he collected along the way. The sergeant reported that he was received warmly throughout the South. In North Carolina and Virginia, he recounted, “I had a bouquet in my hand every hour of the day.” Bates told the president that thousands of former rebels would gladly fight for the Union now.
At the same time, and despite raw weather, blacks in Washington celebrated the anniversary of the Emancipation Proclamation. From a White House window, Johnson bowed to salutes from the marchers, who gathered to hear speeches on a field south of the mansion. Johnson complained that a military display was part of the ceremony, fearing that it aligned the federal government with the blacks.
The new Ku Klux Klan was growing at astonishing rates across the South, gaining virtual control of whole counties in Tennessee, whipping black people in the night and burning homes and courthouses. The Klan took credit for the murder of a leading Unionist in Georgia. With the spread of the Klan and other paramilitary organizations dedicated to white supremacy, the prospect rose again of guerilla warfare that could bloody the South for years.
The Klan delivered its verdict of hate directly to the House managers. Logan, Stevens, and Bingham received messages in red ink, festooned with skulls and coffins, pledging death to traitors. Butler, due to his prominent trial role, was the target of multiple threats: A message on a window shutter in the House Reporters’ Gallery stated BUTLER PREPARE TO MEET THY GOD. THE AVENGER IS ABROAD ON YOUR TRACK. AFTER DEATH COMES JUDGMENT. HELL IS YOUR PORTION.
The managers were not deterred. Butler summoned people from around the country as possible rebuttal witnesses. He asked a former Confederate general for information about any “pro-secession proclivities” of Lorenzo Thomas during the war. He brought General Sherman in for more questioning, along with the publisher of a pro-Johnson newspaper in Washington.
With several managers preparing closing speeches for the trial’s end, the prosecution was irate over the Senate’s rule that only two final speakers could appear for each side. There were, after all, seven managers. They agreed among themselves that Butler would give no closing address and that Bingham and Boutwell would. That raised the alarming prospect that the other four managers would never step into the trial’s spotlight. Stevens, John Logan, and Thomas Williams had devoted considerable effort to preparing closing orations. The managers demanded the right to deliver at least five closing speeches, or maybe more. When the issue was raised by motion on April 12, Stevens supported it with his first public words of the trial. The Senate ducked the question until April 22, when it finally yielded, allowing an unlimited number of closing statements by both sides.
With the trial entering its third week, War Secretary Stanton began to relax. Visiting the War Department in early April, General Sherman had been surprised by the heavy guard around the building. Stanton, he remarked, was better protected than Sherman had been when riding through Indian country. By the middle of the month, Stanton was straying from his post. He and Mrs. Stanton, evidently reconciled, slipped away for a weekend in Baltimore, leaving his son Eddie (who was his personal aide) to guard the fort. After that, the Secretary started going home in the
evenings for dinner and a rest. Stanton continued to provide advice to the impeachers.
After General Sherman’s testimony, the proceedings languished. For most of Wednesday, April 15, the defense bored the Senate near to death. Benjamin Curtis, master of bloodless presentation, submitted documents reflecting the methods of appointing and removing officials through the life of the Republic. Curtis covered interim appointments of postmasters, naval officers, and every Cabinet-level official from 1829 to 1860. He was proving an uncontested point: that previous presidents routinely discharged executive officials without the participation of the Senate, even when the Senate was in session. Because those dismissals came before the Tenure of Office Act was adopted, they had little bearing on the issue before the Senate.
The following day brought unexpected fireworks. Ben Butler’s temper frayed through an afternoon of battling to exclude testimony about statements made by Johnson. In this instance, the Senate chose to hear the testimony. The Senate’s inconsistency was maddening. When William Evarts proposed to adjourn early, Butler pitched a fit. Every minute the trial dragged on, he warned, meant that white marauders would slaughter more law-abiding citizens in the South. “The moment justice is done on this great criminal,” he thundered, “these murders will cease.” He warmed to his subject:
While we are being courteous [to Johnson’s lawyers] the free Union men of the South are being murdered, and on our heads and on our skirts will be their blood.
Butler delivered the emotional words with passion. One observer depicted the stout Massachusetts manager moving “every muscle and limb of his body, like a frog in the pangs of vivisection.” Defense lawyer Evarts calmly disparaged Butler’s speech as a “harangue,” and won his early adjournment.
Though many applauded Evarts’s unruffled response to Butler, President Johnson despaired over its mildness. Evarts, Johnson complained, missed the chance to “administer a rebuke that would not only have told upon the Senate but upon the whole country.” With Stanberry ailing, the president was “particularly dissatisfied” with Evarts. He considered telling the New York lawyer that he had mismanaged the case.
Despite his client’s feelings, Evarts was playing an increasingly central role. He took charge of the final evidentiary push for the defense. From the beginning, Johnson’s lawyers planned to present testimony by Cabinet members. Trailing the dignity of high office, they would describe how Stanton himself had condemned the Tenure of Office Act as unconstitutional. They also were expected to fill the evidentiary hole left by General Sherman; they would testify that the president intended to challenge the Tenure of Office Act in court. That argument over the president’s intent was a red herring, since Johnson had taken no step to challenge the law while complying with it in several instances.
Evarts began to play the Cabinet card in the early afternoon of Friday, April 17. He started with Gideon Welles, secretary of the navy through the full terms of both Lincoln and Johnson. Principally remembered for the sharp-edged entries in his daily diary, Welles was a strong Johnson loyalist. With a tart New England outlook and a beard even more ebullient than Stanton’s, Welles walked ramrod-straight to the front of the Senate, brandishing a pair of gold spectacles.
Gideon Welles, Secretary of the Navy.
Evarts asked Welles about Johnson’s disclosure to his Cabinet that he had fired Stanton. Butler sprang to his feet, objecting that Welles learned of the president’s action after it happened, so the conversation was irrelevant. After a lengthy argument between lawyers, the Senate voted 26 to 23 to hear the testimony. Soon Butler was objecting again, this time to evidence that the Cabinet thought the Tenure of Office Act was unconstitutional. The defense, he protested, wanted to “have the ministers shield the king.” If Johnson could hide behind his Cabinet’s advice, then he need only select Cabinet officers who would advise him “as he wants to be advised.” Evarts fell back on the defense mantra: if the president thought the statute unconstitutional, then he had no intention to commit an illegal act when he replaced Stanton.
The dispute spilled over to the next day, when Manager James Wilson took over the argument. In his sober and ingratiating manner, Wilson explained that even if Cabinet members thought the Tenure of Office Act unconstitutional, they did not advise Johnson to ignore it, so the offered testimony was irrelevant. Though Curtis tried to counter Wilson’s reasoning, the Senate once more changed its standard for receiving evidence. By a 20-to-29 vote, it refused to hear Welles testify about the Cabinet Secretaries’ views of the statute, and by a wider margin refused to hear evidence of their wish for a court challenge to the law. Though other Cabinet members, including Secretary of State Seward, were waiting to testify, the defense lawyers gave up the effort.
The dispute, at one level, was pointless. Every senator knew that Johnson’s Cabinet thought the Tenure of Office Act was invalid. Indeed, the Senate had accepted into evidence documents reciting the Cabinet’s view. Yet the defense won a considerable victory by losing on this question. The exclusion of the Secretaries’ testimony made the Senate seem high-handed, even unconcerned with justice. To many, the Senate had demeaned the distinguished members of the Cabinet. By muzzling some of the most prominent men in the nation, it seemed more interested in covering up than revealing the truth, while denying the president a fair opportunity to present his case. In the end, the episode only emphasized the evidence that the Senate supposedly excluded.
This last fight magnified a negative impression that had built through the trial: that the case was a lawyer’s frolic, an exercise in legal formalism that was divorced from the momentous question of who should run the country. By several counts, the evidentiary squabbles consumed roughly one-third of the trial. Every minute of sparring over evidence made the case seem more like Butler’s horse case and less like a constitutional confrontation of historic importance. In Butler’s hands, the case became small. The managers—particularly Butler—should have known better. They talked too much about too little.
Evarts announced the end of the defense case on Saturday, April 18. Two days later, the House managers offered a few scraps of rebuttal, notably a list of 41,000 federal jobs. If acquitted, the managers argued, Johnson would claim unbridled discretion to fill every one of those jobs with his cringing dependents. Nothing in the rebuttal materials made much impression. Indeed, the trial had performed little practical function beyond the theatrical. “[T]he evidence sheds absolutely no light on the case,” complained an editorial in The Nation. “It might all have been dispensed with on both sides.”
Most European observers found the spectacle confusing, a distasteful example of America’s rambunctious politics. The Times of London was puzzled. Congress had passed its legislation over Johnson’s veto. What need was there to remove him? For Frenchmen living in the Second Empire of Louis-Napoléon, the impeachment demonstrated the wisdom of limiting the power of representative assemblies.
Two steps yet remained to the contest. First, the combatants would give their closing statements. Then the Senate would vote. Though those two steps sound simple, it would take a month to complete them, longer than the trial up to then. It took so long because the fight grew ever more fierce.
COUNTING TO SEVEN
APRIL 1868
[I]t is certain that no man has the least confidence in the [House of Lords’] impartiality when a great public functionary, charged with a great state crime, is brought to their bar. They are all politicians. There is hardly one among them, whose vote on an impeachment may not be confidently predicted before a witness has been examined.
THOMAS BABINGTON MACAULAY, 1841
ON SUNDAY, APRIL 19, Colonel Moore asked the president how he thought the impeachment vote would turn out. It was all conjecture, Johnson replied, declining to say more. Despite his demure response, the president was devoting careful attention to the question. With the trial nearing its end, counting the votes in the Senate became an obsession throughout Washington City. The arithmetic remained simp
le. The president could rely on the votes of nine Democrats and three “Johnson Republicans.” That left him seven votes short of the nineteen he needed to block conviction. Judgments varied on whether and where he could find those seven additional votes.
On April 11, the Chicago Tribune predicted that Johnson would be convicted; six days later it reported that gamblers were betting large sums on acquittal. After another five days, the Springfield (Mass.) Republican explained that conviction was certain because only three Republicans would vote to acquit. The New York Times agreed with that prognosis in early May. The New York Independent wrote, “The President’s intimate friends abandon all hope, and report him to be dejected and silent.” At the same time, the New York Herald found that the president’s acquittal was expected. The Petersburg Index in Virginia confessed that it could not predict how the vote would turn out.
Some of these conflicting reports reflected the wishful thinking of writers and editors. News reporting in the 1860s often included a strong dose of bias. But the contradictory reports also reflected reality. The forecast changed from day to day as rumors were sifted with incomplete reports of offhand remarks by senators. Samuel Barlow of New York, a lawyer and Democratic power broker, struggled to reconcile the reports from Washington. On April 4, he was told that Johnson could not be saved by all the money available for bribes from “the whiskey Ring together with all the Political Influence and Political trickery of [Secretary of State] William H. Seward and [New York Republican boss] Thurlow Weed.” Two weeks later, he heard that Johnson would win with eight additional Republican votes. Barlow remained skeptical.
At the end of the first week of trial, Judge Curtis estimated that between twenty-two and twenty-five Republican senators “began the trial with a fixed determination to convict” and would never change their minds. That left more than a dozen Republicans whose votes he could not predict. “What will become of them I know not,” he wrote, “but the result is with them.” Senator James Grimes of Iowa was more generous in his estimate of how open-minded the Senate Republicans were. Grimes insisted that at least thirty of his colleagues “intend to hear the evidence and weigh the law before they pronounce judgment.”
Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy Page 24
