Blackstone put one set of papers away and produced another. He was sitting with his knees together, documents on his lap. He said, “Shall I assume that you know the constitutional basics, Mr. President?”
“You dastn’t assume a damn thing where I’m concerned, Carlisle. Nobody in my job has been impeached for a hundred and fifty years, so start from scratch.”
The actual number of years since the Andrew Johnson case was 133. Blackstone did not point this out. He handed Lockwood the briefing book and proceeded on memory. “First, briefly, some history,” he said. “Essentially, impeachment is a device to charge and try persons, noblemen and others, who are traditionally above the law. In Britain, where it has been in use since the seventeenth century, this never meant the sovereign, who derived his rights from God.”
“Fascinating.” Lockwood leaned forward, planting his elbows on his knees and his chin in his hands. As Blackstone knew, this was always a sign that the President was losing his concentration. A polka-dot handkerchief flowed from the lawyer’s breast pocket. Lockwood stared at it fixedly, apparently to focus his mind. This was disconcerting to Blackstone, who felt that he was talking to a cross-eyed man.
Blackstone continued, “However, as is the case with so much that the Founding Fathers handed down to us, the American form of impeachment is in some ways the same as the British, but in other particulars profoundly different. The chief dissimilarity is that the House of Representatives can impeach the head of state. A second difference is that the British monarch may pardon a person convicted of an impeachable offense, but the President of the United States may not do so.”
Lockwood interrupted with a lifted forefinger. “What about Nixon?”
“He was not impeached. He resigned before his case came to a vote,” said Blackstone. “Shall I expand on that?”
“No. Move on. Tell me how the whole thing works, from day one.”
“For reasons it deems sufficient—there is no other test—the House of Representatives passes a resolution. The wording in the Andrew Johnson case was simple: ‘Resolved, that Andrew Johnson, President of the United States, be impeached for high crimes and misdemeanors.’ Essentially the same form was followed in the case of Richard Nixon.”
“Then it goes to the Judiciary Committee.”
“In Nixon’s case, yes. However, Johnson’s impeachment was handled by the House Committee on Reconstruction. The House can designate any one of its committees to handle this phase of the process, or it can create an entirely new one for the purpose. And if that committee finds grounds to believe an offense has taken place, it prepares articles of impeachment for transmittal to the House. The House then votes on the articles of impeachment. A simple majority of all members present is required for adoption.”
“What exactly constitutes ‘high crimes and misdemeanors’?”
“There is no definition of these terms in law. Richard Nixon seems to have been condemned not for what he did, for which there was no documentary evidence until the Supreme Court, in effect, ordered him to incriminate himself by releasing the famous tapes, but for what a majority of the House of Representatives and the news media perceived him to be—a bad man. Andrew Johnson was impeached for firing his Secretary of War, Edwin M. Stanton, after Congress passed the Tenure of Office Act requiring the consent of the Senate to any such dismissal and providing that a violation of its terms should be ‘a high misdemeanor.’ From this, a reasonable man might conclude that the act was designed to entrap the President, a political maneuver pure and simple. And as you yourself have suggested, sir, so, in a more complicated way, was the Nixon case. Alexander Hamilton, who opposed the inclusion of impeachment provisions in the Constitution, warned that the process would always be driven by politics, not legal principles.”
“Forewarned is forearmed,” Lockwood said. “How is the trial conducted?”
“Like any other trial, except that it takes place in the Senate chamber,” Blackstone said. “The articles of impeachment adopted by the House are read, evidence is introduced, witnesses are examined, the Chief Justice presides and makes rulings as required, and the lawyers present arguments. When the case is completed, the Senate, with each member under oath or affirmation, convicts or acquits, with the question of guilt or innocence being put to each senator in alphabetical order by roll call. The votes of two thirds of the members present are required for conviction.”
Lockwood shifted his gaze from Blackstone’s pocket handkerchief to his long, troubled face. “Who prosecutes?”
“The House appoints the prosecutors, called ‘managers,’ from among its members,” Blackstone said.
“How long did Johnson’s trial last?”
“Two months.”
“Too long,” Lockwood said. “And after all that, the Senate acquitted him by one vote. Is that right?”
“That’s one way of putting it,” Blackstone said. “In more accurate terms, the Senate vote in favor of conviction fell short of a two-thirds majority by a single vote. The exact count was thirty-five yes to nineteen no, with seven Republicans joining twelve Democrats for acquittal. Johnson remained in office, but it cannot be said that he was vindicated.”
“So if I say to hell with vindication, all I need is thirty-four votes to survive?”
“Exactly,” Blackstone said. “But I must tell you, sir, that you have a much more difficult case to defend than Andrew Johnson did. Or even Nixon.”
Lockwood glared. “Worse than Nixon?” he cried. “Jesus! How’s that, Counselor?”
“The charge, stealing a presidential election, is the most serious that can possibly be brought. It strikes at the heart of the Constitution. This is no defiance of Congress or camouflaged struggle on the part of Congress to wrest control of policy from a duly elected President, as with Johnson and Nixon. The controlling question is, Who is the rightful President? The main objective of all concerned, including yourself, will be to reestablish the fundamental sovereignty of the people by arriving at the truth. No sensible prosecutor will even suggest that political advantage is a consideration. He’ll hammer hell out of the facts and the law. And barring a miracle, assuming the evidence stands up, he will surely win.”
Lockwood bared his teeth. He snarled, “Your long experience as a political expert and a trial lawyer tells you this?”
Unblinking, Blackstone said, “Mr. President, we both know I’m not a trial attorney. But I went to law school at night in a tough neighborhood —not Harvard or Yale, but a school that prepares you to work in the world as it really is—with several fellows who are pretty darn good courtroom lawyers. I consulted them. It’s their opinion—their unanimous opinion—that I am passing on to you.”
“And what did your legal eagles say the defense would do while the prosecution is eating us alive?” Lockwood’s tone was contemptuous. He was hearing things he did not want to be told, and he was suddenly irritated by Blackstone’s New York accent, which had grown steadily stronger as he spoke.
Blackstone wearily removed his pince-nez and looked Lockwood straight in the eyes. “The defense would hope to save the President by throwing some lesser figure to the wolves,” he said. “I think Julian had better tell his brother that it’s time to come home.”
2
No one was more interested in the whereabouts of Horace Hubbard than the Speaker of the House of Representatives, R. Tucker Attenborough, Jr., of Dead Horse Mountain, Texas. Before entering Congress forty years earlier, at the age of twenty-five, the Speaker had been-nicknamed “One-Question Attenborough” for winning the acquittal of the owner of an isolated gas station who had caused the untimely death of a bearded stranger from Cambridge, Massachusetts. The victim had sealed his own fate by passing a remark about the beautiful young woman who happened to be the Texan’s bride of three weeks.
The state of Texas alleged that the defendant had committed murder in the second degree, or at the very least first-degree manslaughter, by knocking the bearded stranger unconscious with a blow of his fist, bi
nding him hand and foot with electrical wire, and then lowering him into an abandoned quicksilver mine shaft in nearby Terlingua by means of a rope tied beneath his armpits. When the accused went back a couple of days later to haul the bearded stranger to the surface (he didn’t return sooner because his bride pleaded with him not to do so, on grounds that he was still mad enough to kill him), he found him dead of suffocation.
Attenborough called just one witness for the defense, the insulted wife, and in the incredibly loud bass voice for which he was later to achieve nationwide fame, asked her a single question: What were the exact words uttered in her hearing by the bearded stranger on that fateful day? And though she was a Christian girl in whose presence, as she testified, no male had ever before uttered a word stronger than “golly” or “gosh,” Attenborough gently urged her to bring herself to repeat the words the man had spoken because the life of her young husband was at stake. She did so, in a tremulous whisper that could barely be heard in the hushed courtroom, only after lifting her lovely face to heaven and uttering a silent prayer for forgiveness. The words were, “Wow, man! That’s eatin’ pussy!” Whereupon Attenborough thundered, “The defense rests.”
The Attenborough family was long on brains but short in physical stature; Attenborough’s father, the Reverend Dick T. Attenborough, had been known as “the shortest Dick west of the Pecos,” which was why the Speaker went by the name R. Tucker. While making his closing argument to the jury, he had had his client stand beside him; the accused was six foot three, the lawyer five foot two. Attenborough said, “Now, my client may have been a little bit naughty, and he may have been a little bit hotheaded, but if he’da wanted to kill that bearded stranger, he sure coulda done so. Look at the size of him, ladies and gentlemen of the jury. No hippie from Cambridge, Massachusetts, site of that justly celebrated institution Harvard University, could have survived this young giant’s wrath if he had vented it. But this recent bridegroom, so deeply in love with his pure young bride, did not want or intend to do murder or manslaughter or commit any other crime. No, he merely wanted to teach the man who had offended her some manners. It wasn’t this richly deserved lesson in gentlemanly comportment that killed that foulmouthed stranger, for the Book of Isaiah, chapter the first, verse the seventeenth, tells us to ‘take wrongdoing out of my sight, learn to be good, discipline the violent.’ All this boy was trying to do, friends, was what the Good Book advises us all to do, and why a greater punishment was imposed in the dark and mysterious depths of that old mine shaft, only the all-seeing Almighty knows.” The jury reached its verdict for acquittal on all charges after just seven minutes of deliberation.
Now, three decades later, Attenborough bellowed, “I’ve got just one question, Mr. President. Where the hell is Horace Hubbard?”
“Tucker, how the hell would I know?”
They were drinking Maker’s Mark at the end of the day in the windowless room in the Executive Office Building that Lockwood used for discreet meetings.
“If I were you, I’d find out,” Attenborough said, holding out his glass for a refill.
The two men were in shirtsleeves, seated on opposite sides of a conference table, with the bottle and a bucket of ice between them.
Lockwood said, “What do you think I’m trying to do? But it ain’t easy. Old Horace is a master spy. Even the goddamn FIS can’t find him.”
“The FIS couldn’t find its own pecker if Miss America held the mirror for ‘em,” Attenborough replied. “Have you tried asking Horace’s brother where he is?”
“Half brother. What for? If Julian knew, he’d tell me.”
“You think so? You don’t know a hell of a lot about brothers, Brother.”
Lockwood said, “Don’t call me brother. All you want out of Horace Hubbard is a witness you can ask one question: ‘How soon can I be President of the United States, even though I could never in a million years get my sorry Texas ass elected because it’s too close to the ground.’ ”
Attenborough let silence gather before replying in dignified tones to this insult. “There’s no need for that kind of talk, Frosty,” he said at last. “Neither one of us wrote the Constitution. You’re the President, you’re the head of our party, and you’re my friend, and you know damn well I’d rather farm rattlesnakes than have the job that you’ve got—no matter how Franklin Mallory says you got it.”
“Right,” Lockwood said. “It took ‘em two, three months to impeach and try old Andrew Johnson. What’s your schedule?”
Attenborough shifted in his chair seat. He said, “Well, frankly, Frosty, I was hoping you’d control the schedule.” He opened the battered old leather briefcase with his initials on it, given to him for graduating first in his class from the law school at El Paso, extracted a letter, and laid it between them.
“What’s this?” Lockwood said.
“It’s a letter.”
“I thought you and your boys were going to deliver it in a body—have a pep rally out front.”
“That’s not the way we do business, Mr. President.”
About two thirds of Attenborough’s bourbon had vanished. Lockwood topped him up again with a steady hand, then took the letter out of the unsealed envelope and looked at it without his glasses. The three or four typed lines at the top were a blur, and so were the several pages of signatures that followed.
“My arm’s not long enough to make this out,” he said. “What’s it say?”
“It asks you and the Vice President to stand aside under the Twenty-fifth Amendment until the issue of the outcome of the last presidential election is resolved by the Congress.”
Lockwood waved the letter. “How many signatures is this?”
Attenborough replied, “A hundred and thirty-seven.”
“Is yours one of them, Tuck?”
“No, sir.”
“I thought it might be missing, just in case I said yes and you reluctantly had to step into my job,” Lockwood said.
“Goddamnit, Frosty, for the last time, I don’t want your job. I’m just trying to find a way to resolve this unholy mess them rich boys have got you into without impeaching you. If you’re not in the presidency, nobody can throw you out of it. Use your head, boy!”
“In other words, this is a trick.”
“You can call it that. It’s a way out for you and the party.”
“That’s what I figured,” Lockwood said. “You can save me the trouble of saying this a hundred and thirty-seven more times. Go on back and tell the boys I said, ‘Shove it.’ ”
3
At two o’clock the following morning, Julian stopped in to see Carlisle Blackstone. The lawyer sat with his back to the door, absorbed in his work, and was not aware that he had a visitor until Julian spoke.
“Still at it, Carlisle?”
Blackstone turned around to face him. “As you see.” He made no effort to smile.
Julian leaned against the doorjamb and crossed one ankle elegantly over the other, the burnished toe of an English oxford resting on the carpet. To all appearances he was wholly at ease despite his desperate circumstances. Only a man of his breeding could have struck such a pose when his own brother’s chances for disgrace, even prison, were so great—or so Blackstone believed as the result of a lifetime of opposing nonchalant WASP lawyers whose clients were as guilty as sin.
“I’ve just put the Boss to bed,” Julian said. “He’s a little sheepish about having raised his voice to you this morning.”
“No need. I didn’t expect him to like what I told him.”
“He understands that you were just doing your duty. He’s a lawyer himself, in a manner of speaking. But he feels he was a little sharp.”
Blackstone waited, wondering if Julian would say something about the suggestion that his brother—half brother; the correction was becoming automatic—be thrown to the wolves.
But of course Julian did not mention the matter. He unwound his legs, looked at his watch, and flinched in mock surprise at what it told him. �
��I’d better go home. Doesn’t your wife complain about your hours?”
“She wouldn’t come down here with me—too hot, too slow, too far from everything; it makes her nervous to ride in taxis that don’t have meters. We spend weekends together in New York.”
“Really?” Julian said, genuinely interested and surprised. “I had no idea.”
“Well,” Blackstone said, “those are the facts of the case.”
It was Blackstone’s turn to smile; although he and Julian had worked together every day for four years, neither man had met the other’s wife except at state dinners. Even then the encounter consisted of a vague smile, a compliment, an introduction as a means of escape. When Caroline was replaced in Julian’s bed by Emily, he had introduced his second wife by title alone (“Mr. and Mrs. Blackstone, my wife”), as though presenting a new special assistant to the President; it was the office, not the occupant, that counted. Emily, a fresh-faced friendly girl who looked (as Blackstone realized the next time he went to the National Gallery of Art) like Renoir’s portrait of Mme. Henriot, had supplied her own first name, along with a firm handshake.
An hour after Julian went home, Blackstone’s telephone rang. Lock-wood’s voice resounded in the earpiece. “Come on upstairs.”
In the Lincoln sitting room, Lockwood offered five kinds of Kentucky bourbon, Scotch, gin, vodka. Blackstone shook his head no to each.
Finally Lockwood said, “Coffee? Tea? Glass of milk?”
“Thank you, Mr. President. Nothing.”
“Do you take any kind of stimulants, Carlisle?”
“Wine with dinner, martinis on weekends in the privacy, of my own home. Gin has an unpredictable effect on me.”
“You too? Makes me mean or horny, usually at the same time. Polly made me give it up years ago. That’s probably why I’m where I am today, which goes to show you there are worse things than a martini fit.”
Blackstone smiled appreciatively, understanding that Lockwood was making up for his earlier lack of graciousness. Clearly the President was perfectly sober now, his liver having metabolized the half-pint of Maker’s Mark he had consumed a few hours earlier in the company of Atten-borough. From the litter of papers surrounding him, he produced a sheet of stiff White House bond on which the names and capsule biographies of half a dozen famous trial lawyers had been typed.
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