Why Was Andrew Johnson Impeached?
There has been diverse but shallow commentary on the impeachment of Andrew Johnson in 1868. John F. Kennedy, for example, writing in his Putlitzer-winning Profiles in Courage, depicted the impeachment trial as an attempt to overturn constitutional government in the United States and to substitute legislative supremacy. This was a very Kennedyesque view, since the regime before the twentieth century, on a clear reading of the constitution and its context, must imply that the legislative branch was supreme. For historians, as opposed to constitutional lawyers, opinion has been filtered through perspectives on Civil Rights. Since most commentators now generally assume that Johnson’s presidency was the one, controlling reason for the disastrous failure of Reconstruction, most tend to ground explanations of impeachment in explanations which justify his trial.
There is thus a serious preliminary question to be asked and answered here, which is how the ‘regime’ interpreted impeachment and its purposes. (The term ‘regime’ refers to the body of conventions, understandings and perspectives that explain why formal documents or rituals are elaborated and understood in the way that they are.)
Before the twentieth century, America was, or at least was intended to be, a parliamentary republic at most times. The Constitution quite starkly puts the Senate and House, not the presidency, into the First Article. It gives the Senate, which in the beginning was a Cabinet-sized body of 26, the right to declare war, make treaties, and, with the House, to spend money, propose and pass bills, and raise taxes. The Senate and House, acting together, organised the government of the United States, and it was their legislation which formed the basis of statutory law. There was no corresponding notion of a royal-style presidential prerogative, and the terms and conditions on which the Senate and House met, and disciplined their members, were up to them (Article I s.5). Crucially, the House and Senate could not be impeached, although they could impeach the judiciary or the presidency. The officers of the United States were different from the law-makers. The officers were subject to the law.
Impeachment also built upon, but differed significantly from, colonial and State precedents. New York and Massachusetts offered broadly political examples of what impeachment was for, which could be basically summed up in the formulation of ‘maladministration, corrupt administration, misconduct in office and gross negligence’. This is what the phrase ‘high crimes and misdemeanours (not high misdemeanours) almost certainly meant. It represents the importation of a vague, tort-related term based upon ‘duty’ into the political affairs of the West. That term had been tentatively explored in the feudal period, during which Kings were expected to govern in particular ways on pain of breach of canonical authority, as could be seen in the various iterations of Magna Carta. It had been brutally enforced on Charles I by a minority of Parliament in 1649, and was built into the terms of the 1689 Bill of Rights; but it had never been elaborated.
In that, the Constitution was providing both for stability and a parliamentary mechanism for those issues of political activity, legitimate behaviour and the acceptable limits of political dishonesty which no court can judge. This was America’s answer to the later Victorian jurist Dicey’s point that common law systems, unlike those on the European continent, did not require administrative law because serious issues would be debated and decided by the representative majority. Members of Congress were expected to use their judgement about the issues to be brought to trial, and the Senate was expected to use its more refined faculty to decide on the removal of a president.
As detailed in Federalist 69 and 77, impeachment was the other side of presidential immunity from everyday prosecution—an immunity not granted to any other person. The presidency existed because, in the 1780s, it was felt necessary to create a national office embodying the executive which, by putting down insurgencies or collecting taxes, or simply administering the laws, might make itself unpopular in some regions but which maintained the balance and order or the whole. A trial in court might be inevitably sectional; an impeachment would be national.
Given this, and since Presidents could be overridden by a vote of the Congress when they exercised their veto, an opinion arose that mere political opposition to Congress would not make an impeachment legitimate. Why would the founders have provided two procedures for one outcome? (The existence of two separate ways to revise the constitution in Article V does not seem to have affected this argument). Impeachment, it follows, was for political crimes, dereliction of duty, gross negligence, and the sort of ‘frolic’, to borrow another tort term, for which someone could be held politically liable.
This treatment of mere political opposition, which of course existed between the War Democrat and Unionist, Andrew Johnson, and the Republican Party-controlled Congress, can be seen in the remarkable number of Johnson’s vetoes that were overturned by the required 2/3 of Congress—five out of every seven vetoes, or fifteen in all (as opposed to one out of every six for the 36 previous vetoes in the history of the republic). None of these overrides required Johnson to resign. Impeachment however, was a superior process, not a parallel one. It required evidence that the president had de-legitimated the law, engaged in bribery or treason, or so over-stepped the bounds of politics that he threatened the due procedures of the republic. Since the ways in which this could happen were infinitely diverse and potentially nuanced, the actual decision was left to the calculation of a supermajority in Congress.
The Republican majority in Congress had, on these grounds, four reasons to prosecute Andrew Johnson. Firstly, he had deliberately ignored the policy of his predecessor and asserted a presidential right to reconstruct the States which had been in rebellion. His chosen method of doing so was a loyalty oath attached to a presidential pardon for former Confederates. This policy excluded the Congress from reconstruction, and also undermined the policy of land redistribution for the freed slaves on which they had been elected. It therefore effectively ‘de-funded’ the Freedmens’ Bureau and deprived the Congress of the source of land and money with which they were going to carry out their plans. Secondly, Johnson had also dismissed the War Secretary, Stanton. In the absence of Lincoln and the convalescence of Secretary Seward, Stanton was the highest remaining Republican in the executive. He held a job that had been organised by Congress, and Congress made what in retrospect was a questionable claim that, since the Senate held appointment hearings as part of its duty to be consulted on appointments, the Senate therefore held a veto over dismissals. They built this claim into the Tenure of Office Act, which Johnson broke when he dismissed Stanton. Thirdly, Congressional prosecutors took the view that President Johnson had violated the chain of command in seeking to give military orders that went ‘around’ his War Secretary direct to the Lieutenant-general, Ulysses Grant. A related point was that Johnson had attempted to replace Stanton with Grant, and then with General Sherman, before settling on Lorenzo Thomas, which meant that he was attempting to bring serving military officers into the Cabinet and White House as executives. Fourthly, since Johnson was elected as a Unionist, it was obvious or apparent to some in the Congress that, alienated from both the Democrats and the Republicans, Johnson could only proceed by building his own party and seeking re-election on the basis of a personal faction that was essentially Napoleonic and implicitly tyrannical.
Beneath these fairly substantial charges, however, there was also a clear political agenda. The Radical Republicans were a consistent bloc within a fissiparous coalition of interests. The Republican Party itself was only 9 years old in 1865, and was en route to a split in 1872. With the War and Slavery gone, and with no Lincoln to hold them together, there was potential for the collapse of the party. Thaddeus Stevens, the Speaker of the House, for instance, was at odds given his Pennsylvania and Ohio interests in coal and steel, and inflation, with the hard-money men of New England such as George Templeton Strong and Charles Sumner. Both were on various issues distinct from the Western homesteaders, many of whom were German, who rallied behind Carl Schurz of Missouri, who was for civil service reform, hard money, repayment of government debts and imperialism and who in 1868 had extensive newspaper interests. Republicans were also keen to remove Johnson so that they could quicken without criticism the incorporation of Western states, such as Nebraska, and the swelling of their numbers in the Senate and House as a consequence. Impeaching the president also held this coalition together.
Others had already been driven to suicide or death by the adamantine determination of the Republican majority. This determination had, by late 1867, taken on the characteristics of a frenzy. Senator Jim Lane of Kansas, for instance, was personally destroyed by radical republican outrage when he sought to uphold the Johnson veto of the Civil Rights Bill of 1866. Stanton himself was barricaded inside his office in the beginning of 1868. Benjamin Wade was lined up as the president-in-waiting for ‘when’ Johnson was removed—not if. Johnson was faced with eleven articles of impeachment, one of which was based on a violation of the Army Appropriations Act and one on his tendency toward violent drunken harangues against Congress. Eight related to the Tenure of Office Act and the removal of Stanton.
That Johnson was habitually drunk was not news, and indeed not unusual in Washington. In the pre-war Congressional Record, for instance, the euphemism of choice to explain the absence of a member or their editing of the record was illness arising from ‘over-indulgence in fruit’ .Johnson had even spent the inauguration day drunk and threatening wrath upon his confederate opponents in 1865. As W.J.Rorabaugh has shown, America for a significant part of its existence, and given the questionable nature of the water supplies, was an ‘alcoholic republic’. Nothing exposes the blatantly political nature of Johnson’s trial so much, however, as the article that complains of Johnson’s verbal abuse of Congress. Such behaviour has rarely been scandalous in the sweep of American history.
Johnson was therefore impeached for ulterior political reasons as well as formal legal ones. There were grounds for impeachment in the proper sense, in that he was preventing the legislature from acting in ways that went beyond veto, but these were not the grounds upon which his opponents chose to fight. To compound their error, the radical republicans then abused the process of trial in such a way that the 12 democrats in the chamber easily found six fair-minded republicans who would not vote to impeach. Scholarly opinion is of necessity confused on how many bribes were flying around the Senate at the time, and many were free in their allegations, but most understood that the impeachment was deeply flawed not because there were no grounds but because of the grounds chosen. The other side of the existence of a procedure for the political punishment of political crimes was that evidence and arguments would be rooted in political manoeuvres.
The first consequence of Johnson’s impeachment was therefore his acquittal. The second was, however, to weaken the presidency and the military at precisely the time when the KKK was forming, and to split the presidency from the army that occupied the South. It also forced Republicans into rallying around a viable alternative to Johnson, in Grant, and to pursue Civil Rights Bills and Amendments rather than capital redistribution. In the longer run, as Johnson’s post-presidential career showed, the splits caused by the impeachment lasted for another ten years. The Republican Party eventually split formally in 1872, but as late as the Garfield assassination was broken between ‘stalwarts’ and ‘half breeds’ who could trace their animosities, or perhaps the style of them, back to the radical and conservative republican split. Democrats also took some time to overcome the war, and went from a 50-50 split (as evidenced by how near Johnson came to nomination in 1868, but also by how much he was opposed) to the removal of black votes and reunion of the sort that elected Johnson to the Senate in 1875 after a failed congressional campaign. The impeachment also helped solidify the position of General Grant as the front-runner and heir apparent to the Republican nomination and presidency in 1868.
In a larger sense, the mechanism of impeachment, which became potentially more important as the regime changed to an executive-led one in the twentieth century, was discredited for an hundred years. The next two serious uses of the procedure—against Richard Nixon in 1974 and Bill Clinton in 1998—added to the illustration of its limits and raise the question of whether its functions better as a safety valve and source of directed pressure in troubled times than as an actual judicial process.