Polarized Times: The Impeachment of Andrew Johnson
In November of 2019 the theme of this community was impeachment and as we concluded at the end of that series, the constitutional process of impeachment has become as much of a political process as it has a legal one. History has shown that during times of intense political polarization, impeachment can be used by one side in an attempt to circumvent the electoral process as a means of removing a political opponent. Lacking a precise definition of what are "high crimes and misdemeanors", differing views have prevailed in the past as to whether, for example, lying in a sworn deposition in a civil case meets this standard or not. In 1868, the issue was whether the standard was met by a polarizing President who failed to abide by a statute that he believed (and which was later found) to be unconstitutional.
On February 24, 1868, the United States House of Representatives voted to impeach President Andrew Johnson by a vote of 126 to 47. As mentioned in the November series, impeachment is the process of forwarding a formal charge that the President has been guilty of "high crimes and misdemeanors". Once a President is impeached, Articles of Impeachment are drafted, setting out what it is alleged that the President has done wrong, forming the basis for his trial in the senate. In Johnson's case, the Articles of Impeachment charged Johnson with the following:
1. Dismissing Edwin Stanton from office of Secretary of War after the Senate had voted not to concur with his dismissal and had ordered him reinstated.
2. Appointing Lorenzo Thomas as intertim Secretary of War, despite the lack of vacancy in the office, since the dismissal of Stanton had been invalid.
3. Appointing Thomas without the required advice and consent of the Senate.
4. Conspiring, with Thomas and "other persons to the House of Representatives unknown," to unlawfully prevent Stanton from continuing in office.
5. Conspiring to unlawfully curtail faithful execution of the Tenure of Office Act.
6. Conspiring to "seize, take, and possess the property of the United States in the Department of War."
7. Conspiring to "seize, take, and possess the property of the United States in the Department of War" with specific intent to violate the Tenure of Office Act.
8. Issuing to Thomas the authority of the office of Secretary of War with unlawful intent to "control the disbursements of the moneys appropriated for the military service and for the Department of War."
9. Issuing to Major General William H. Emory orders with unlawful intent to violate the Tenure of Office Act.
10. Making three speeches with intent to sow disrespect for the Congress among the citizens of the United States.
Johnson was in trouble almost from the moment that he assumed the Presidency following the death of Abraham Lincoln in 1865. Johnson was a former Democrat who had left the party to run on a ticket with Lincoln in 1864, so he was despised by Democrats. He was a southerner who had remained in the union during the Civil War, so he was hated by southerners and mistrusted by Democrats. He was neither an abolitionist nor in favor of any real rights for former slaves, so Radical Republicans also hated him. He came into office without any real friends. On top of that, he had gotten very drunk on the day of his inauguration as Vice-President and may people considered him a drunk and a lightweight. On the day that Lincoln was assassinated and at attempt was made on the life of Secretary of State William Seward, the man assigned to kill Johnson had changed his mind about performing his task. Many people suspected that Johnson was spared because he was in on the conspiracy to kill Lincoln.
On February 22, 1866, Washington's Birthday, Johnson gave a speech in which he criticized Radical Republicans, calling them "men still opposed to the Union". When asked by the crowd to name these men, Johnson named Pennsylvania Congressman Thaddeus Stevens, Massachusetts Senator Charles Sumner and abolitionist Wendell Phillips, and accused them of plotting his assassination. Although strongly urged by Moderates to sign the Civil Rights Bill, Johnson vetoed it on March 27. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress. He said that the bill discriminated in favor of African-Americans and against whites. Congress overrode his veto.
Congress also proposed the Fourteenth Amendment. It was sent for ratification by state legislatures even though Johnson opposed it. The amendment was designed to put the key provisions of the Civil Rights Act into the Constitution. It extended citizenship to every person born in the United States (except Native Americans on reservations) and it penalized states that did not give the vote to freedmen. It also created new federal civil rights that could be protected by federal courts. It also forbade repayment of Confederate war debts and it disqualified many former Confederates from office. Both houses passed the Freedmen's Bureau Act a second time, and again Johnson vetoed it, but this time, the veto was overridden. Johnson's home state of Tennessee ratified the Fourteenth Amendment despite the President's opposition. When Tennessee did so, Congress immediately seated its proposed delegation, embarrassing Johnson.
Efforts at compromise failed, and a political war ensued between the Republicans (who united against a common enemy) and Johnson and his few allies in the Democratic Party. Johnson called a convention of the National Union Party. Johnson hoped to use the discarded party to unite his supporters and win election to a full-term in 1868. In the mid-term election of 1866; Southern states were not allowed to vote. Johnson campaigned vigorously, undertaking a public speaking tour, known as the "Swing Around the Circle". The trip, including speeches in Chicago, St. Louis, Indianapolis and Columbus. It was a political disaster. Johnson gave rambling speeches in which he compared himself to Christ, and in which he engaged in arguments with hecklers. Republicans won the mid-terms in a landslide, increasing their large majority in Congress. Johnson blamed the Democrats for failing to support his National Union movement.
Despite the Republican victory in November 1866, Johnson still considered himself in a strong position to win the presidency in 1868. The Fourteenth Amendment had been rejected in Kentucky, Delaware, and Maryland. The amendment required ratification by three-quarters of the states to become part of the Constitution. Johnson saw its defeat as the key to his victory in 1868. But when congress reconvened in December 1866, it admitted Nebraska to the Union over a veto, and the Republicans gained two senators, and a state that promptly ratified the amendment. Johnson's veto of a bill for statehood for Colorado Territory was sustained because enough senators agreed that a district with a population of 30,000 did not deserve statehood.
In January 1867, Congressman Thaddeus Stevens introduced legislation to dissolve the Southern state governments and reconstitute them into five military districts, under martial law. The states would be required to hold constitutional conventions at which African-Americans could vote or become delegates but former Confederates could not. Johnson and the Southerners attempted a compromise, without the disqualification of former Confederates, and for limited black suffrage, but the deal fell through. Johnson vetoed the bill on March 2, 1867 and Congress overruled him the same day.
Also on March 2, Congress passed the Tenure of Office Act over the President's veto. During the "Swing Around the Circle" tour, Johnson had said that he planned to fire Cabinet secretaries who did not agree with his policies. This bill required Senate approval for the firing of Cabinet members during the tenure of the president who appointed them and for one month afterwards. Some senators doubted that this was constitutional or that applied to Johnson, whose Cabinet officers were Lincoln holdovers.
Johnson had difficulty working with Secretary of War Edwin Stanton, who, in combination with General Ulysses Grant, worked to undermine Johnson's Southern policy. Congress met in March 1867, and the House Committee on the Judiciary considered whether there were grounds for Johnson to be impeached. This committee examined Johnson's bank accounts, and summoned members of the Cabinet to testify. It also investigated whether the President had impeded the prosecution of Jefferson Davis. In fact Johnson was eager to have Davis tried. A bipartisan majority of the committee voted down impeachment charges and the committee adjourned on June 3.
In June, Johnson and Stanton battled over the question of whether the military officers placed in command of the South could override the civil authorities. The President had Attorney General Henry Stanbery issue an opinion backing his position that they could not. Stanton would not commit to follow this opinion. When Congress reconvened in July, it passed a Reconstruction Act against Johnson's position, waited for his veto, and then overruled it. In addition to clarifying the powers of the generals, the legislation also deprived the President of control over the Army in the South.
With Congress in recess until November, Johnson decided to fire Stanton and relieve one of the military commanders, General Philip Sheridan of his command. On August 5, the President demanded Stanton's resignation, but the secretary refused to quit. Johnson then suspended him pending the next meeting of Congress as permitted under the Tenure of Office Act. Ulysses Grant agreed to serve as temporary replacement while continuing to lead the Army. Grant followed Johnson's order transferring Sheridan and Daniel Sickles, but he did so under protest.
The 1867 elections generally went Democratic and the Democrats took control of the Ohio General Assembly, allowing them to defeat for re-election one of Johnson's strongest opponents, Senator Benjamin Wade. Voters in Ohio, Connecticut, and Minnesota turned down propositions to grant African-Americans the vote. Despite this, Congress met in November, and the Judiciary Committee passed a resolution of impeachment against Johnson. After debate about whether anything the President had done was a high crime or misdemeanor, the standard under the Constitution, the resolution was defeated by the House of Representatives on December 7, 1867, by a vote of 57 in favor to 108 opposed.
Johnson notified Congress of Stanton's suspension and Grant's interim appointment. In January 1868, the Senate voted to reinstate Stanton, contending that Johnson had violated the Tenure of Office Act. Grant stepped aside over Johnson's objection. Johnson then dismissed Stanton and appointed Lorenzo Thomas to replace him. But Stanton refused to leave his office, and on February 24, 1868, the House impeached the President for intentionally violating the Tenure of Office Act, by a vote of 128 to 47. The House subsequently adopted eleven articles of impeachment, for the most part alleging that he had violated the Tenure of Office Act, and had questioned the legitimacy of Congress.
A trial began in the Senate on March 13, 1868, presided over by Chief Justice Salmon P. Chase, who had also been Abraham Lincoln's Treasury Secretary.
On the first day, Johnson's defense committee asked for forty days to collect evidence and witnesses since the prosecution had had a longer amount of time to do so, but only ten days were granted. The proceedings began on March 23. Senator Garrett Davis argued that because not all states were represented in the Senate the trial could not be held and that it should therefore be adjourned. The motion was voted down. After the charges against the President were made, Henry Stanberry asked for another thirty days to assemble evidence and summon witnesses, saying that in the ten days previously granted there had only been enough time to prepare the President's reply. Senator (and former Union General) John A. Logan argued that the trial should begin immediately and that Stanberry was only trying to stall for time. The request was turned down in a vote 41 to 12. However, the Senate voted the next day to give the defense six more days to prepare evidence.
The trial commenced again on March 30. Benjamin F. Butler opened for the prosecution with a three hour speech reviewing historical impeachment trials, going back to King John of England. For days Butler spoke out against Johnson's violations of the Tenure of Office Act and further charged that the President had issued orders directly to Army officers without sending them through General Grant. The defense argued that Johnson had not violated the Tenure of Office Act because President Abraham Lincoln did not reappoint Stanton Secretary of War at the beginning of his second term in 1865 and that he was therefore a leftover appointment from the 1860 cabinet, which removed his protection by the Tenure of Office Act. The prosecution called several witnesses in the course of the proceedings until April 9, when they rested their case.
Benjamin R. Curtis called attention to the fact that after the House passed the Tenure of Office Act, the Senate had amended it, meaning that it had to go back to a Senate-House conference committee to resolve the differences. He followed up by quoting the minutes of those meetings, which revealed that while the House members made no notes about the fact, their sole purpose was to keep Stanton in office, and the Senate had disagreed. The defense then called their first witness, Adjutant General Lorenzo Thomas. He did not provide adequate information in the defense's cause and Butler made attempts to use his information to the prosecution's advantage. The next witness was General William T. Sherman, whose testimony benefited the prosecution.
At the conclusion of the evidence, three votes were taken and on all three occasions, thirty-five Senators voted "guilty" and nineteen "not guilty". As the Constitution requires a two-thirds majority for conviction in impeachment trials, Johnson was acquitted. Just one changed vote to guilty would have sufficed for a "guilty" verdict.
Seven Republican senators were concerned that the proceedings were unfair and defied their party by voting against conviction. After the trial, there were widespread reports that Republican senators had been bribed to vote for Johnson's acquittal. In subsequent inquiries, there was evidence that some acquittal votes were acquired by promises of patronage jobs and cash bribes.
Subsequent decisions of the United States Supreme Court held the Tenure of Office Act to be invalid, supporting the notion that this was not a proper ground to seek Johnson's removal from office. Historian Eric Foner argues that violations of the Tenure of Office Act were of secondary importance in the impeachment. Rather, he argues that Johnson wanted to use his position as commander in chief of the military to undermine the Reconstruction Act of 1867. The Tenure of Office Act was beside the point, Johnson's real crime was being out of step with a nation undergoing profound social change.
On February 24, 1868, the United States House of Representatives voted to impeach President Andrew Johnson by a vote of 126 to 47. As mentioned in the November series, impeachment is the process of forwarding a formal charge that the President has been guilty of "high crimes and misdemeanors". Once a President is impeached, Articles of Impeachment are drafted, setting out what it is alleged that the President has done wrong, forming the basis for his trial in the senate. In Johnson's case, the Articles of Impeachment charged Johnson with the following:
1. Dismissing Edwin Stanton from office of Secretary of War after the Senate had voted not to concur with his dismissal and had ordered him reinstated.
2. Appointing Lorenzo Thomas as intertim Secretary of War, despite the lack of vacancy in the office, since the dismissal of Stanton had been invalid.
3. Appointing Thomas without the required advice and consent of the Senate.
4. Conspiring, with Thomas and "other persons to the House of Representatives unknown," to unlawfully prevent Stanton from continuing in office.
5. Conspiring to unlawfully curtail faithful execution of the Tenure of Office Act.
6. Conspiring to "seize, take, and possess the property of the United States in the Department of War."
7. Conspiring to "seize, take, and possess the property of the United States in the Department of War" with specific intent to violate the Tenure of Office Act.
8. Issuing to Thomas the authority of the office of Secretary of War with unlawful intent to "control the disbursements of the moneys appropriated for the military service and for the Department of War."
9. Issuing to Major General William H. Emory orders with unlawful intent to violate the Tenure of Office Act.
10. Making three speeches with intent to sow disrespect for the Congress among the citizens of the United States.
Johnson was in trouble almost from the moment that he assumed the Presidency following the death of Abraham Lincoln in 1865. Johnson was a former Democrat who had left the party to run on a ticket with Lincoln in 1864, so he was despised by Democrats. He was a southerner who had remained in the union during the Civil War, so he was hated by southerners and mistrusted by Democrats. He was neither an abolitionist nor in favor of any real rights for former slaves, so Radical Republicans also hated him. He came into office without any real friends. On top of that, he had gotten very drunk on the day of his inauguration as Vice-President and may people considered him a drunk and a lightweight. On the day that Lincoln was assassinated and at attempt was made on the life of Secretary of State William Seward, the man assigned to kill Johnson had changed his mind about performing his task. Many people suspected that Johnson was spared because he was in on the conspiracy to kill Lincoln.
On February 22, 1866, Washington's Birthday, Johnson gave a speech in which he criticized Radical Republicans, calling them "men still opposed to the Union". When asked by the crowd to name these men, Johnson named Pennsylvania Congressman Thaddeus Stevens, Massachusetts Senator Charles Sumner and abolitionist Wendell Phillips, and accused them of plotting his assassination. Although strongly urged by Moderates to sign the Civil Rights Bill, Johnson vetoed it on March 27. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress. He said that the bill discriminated in favor of African-Americans and against whites. Congress overrode his veto.
Congress also proposed the Fourteenth Amendment. It was sent for ratification by state legislatures even though Johnson opposed it. The amendment was designed to put the key provisions of the Civil Rights Act into the Constitution. It extended citizenship to every person born in the United States (except Native Americans on reservations) and it penalized states that did not give the vote to freedmen. It also created new federal civil rights that could be protected by federal courts. It also forbade repayment of Confederate war debts and it disqualified many former Confederates from office. Both houses passed the Freedmen's Bureau Act a second time, and again Johnson vetoed it, but this time, the veto was overridden. Johnson's home state of Tennessee ratified the Fourteenth Amendment despite the President's opposition. When Tennessee did so, Congress immediately seated its proposed delegation, embarrassing Johnson.
Efforts at compromise failed, and a political war ensued between the Republicans (who united against a common enemy) and Johnson and his few allies in the Democratic Party. Johnson called a convention of the National Union Party. Johnson hoped to use the discarded party to unite his supporters and win election to a full-term in 1868. In the mid-term election of 1866; Southern states were not allowed to vote. Johnson campaigned vigorously, undertaking a public speaking tour, known as the "Swing Around the Circle". The trip, including speeches in Chicago, St. Louis, Indianapolis and Columbus. It was a political disaster. Johnson gave rambling speeches in which he compared himself to Christ, and in which he engaged in arguments with hecklers. Republicans won the mid-terms in a landslide, increasing their large majority in Congress. Johnson blamed the Democrats for failing to support his National Union movement.
Despite the Republican victory in November 1866, Johnson still considered himself in a strong position to win the presidency in 1868. The Fourteenth Amendment had been rejected in Kentucky, Delaware, and Maryland. The amendment required ratification by three-quarters of the states to become part of the Constitution. Johnson saw its defeat as the key to his victory in 1868. But when congress reconvened in December 1866, it admitted Nebraska to the Union over a veto, and the Republicans gained two senators, and a state that promptly ratified the amendment. Johnson's veto of a bill for statehood for Colorado Territory was sustained because enough senators agreed that a district with a population of 30,000 did not deserve statehood.
In January 1867, Congressman Thaddeus Stevens introduced legislation to dissolve the Southern state governments and reconstitute them into five military districts, under martial law. The states would be required to hold constitutional conventions at which African-Americans could vote or become delegates but former Confederates could not. Johnson and the Southerners attempted a compromise, without the disqualification of former Confederates, and for limited black suffrage, but the deal fell through. Johnson vetoed the bill on March 2, 1867 and Congress overruled him the same day.
Also on March 2, Congress passed the Tenure of Office Act over the President's veto. During the "Swing Around the Circle" tour, Johnson had said that he planned to fire Cabinet secretaries who did not agree with his policies. This bill required Senate approval for the firing of Cabinet members during the tenure of the president who appointed them and for one month afterwards. Some senators doubted that this was constitutional or that applied to Johnson, whose Cabinet officers were Lincoln holdovers.
Johnson had difficulty working with Secretary of War Edwin Stanton, who, in combination with General Ulysses Grant, worked to undermine Johnson's Southern policy. Congress met in March 1867, and the House Committee on the Judiciary considered whether there were grounds for Johnson to be impeached. This committee examined Johnson's bank accounts, and summoned members of the Cabinet to testify. It also investigated whether the President had impeded the prosecution of Jefferson Davis. In fact Johnson was eager to have Davis tried. A bipartisan majority of the committee voted down impeachment charges and the committee adjourned on June 3.
In June, Johnson and Stanton battled over the question of whether the military officers placed in command of the South could override the civil authorities. The President had Attorney General Henry Stanbery issue an opinion backing his position that they could not. Stanton would not commit to follow this opinion. When Congress reconvened in July, it passed a Reconstruction Act against Johnson's position, waited for his veto, and then overruled it. In addition to clarifying the powers of the generals, the legislation also deprived the President of control over the Army in the South.
With Congress in recess until November, Johnson decided to fire Stanton and relieve one of the military commanders, General Philip Sheridan of his command. On August 5, the President demanded Stanton's resignation, but the secretary refused to quit. Johnson then suspended him pending the next meeting of Congress as permitted under the Tenure of Office Act. Ulysses Grant agreed to serve as temporary replacement while continuing to lead the Army. Grant followed Johnson's order transferring Sheridan and Daniel Sickles, but he did so under protest.
The 1867 elections generally went Democratic and the Democrats took control of the Ohio General Assembly, allowing them to defeat for re-election one of Johnson's strongest opponents, Senator Benjamin Wade. Voters in Ohio, Connecticut, and Minnesota turned down propositions to grant African-Americans the vote. Despite this, Congress met in November, and the Judiciary Committee passed a resolution of impeachment against Johnson. After debate about whether anything the President had done was a high crime or misdemeanor, the standard under the Constitution, the resolution was defeated by the House of Representatives on December 7, 1867, by a vote of 57 in favor to 108 opposed.
Johnson notified Congress of Stanton's suspension and Grant's interim appointment. In January 1868, the Senate voted to reinstate Stanton, contending that Johnson had violated the Tenure of Office Act. Grant stepped aside over Johnson's objection. Johnson then dismissed Stanton and appointed Lorenzo Thomas to replace him. But Stanton refused to leave his office, and on February 24, 1868, the House impeached the President for intentionally violating the Tenure of Office Act, by a vote of 128 to 47. The House subsequently adopted eleven articles of impeachment, for the most part alleging that he had violated the Tenure of Office Act, and had questioned the legitimacy of Congress.
A trial began in the Senate on March 13, 1868, presided over by Chief Justice Salmon P. Chase, who had also been Abraham Lincoln's Treasury Secretary.
On the first day, Johnson's defense committee asked for forty days to collect evidence and witnesses since the prosecution had had a longer amount of time to do so, but only ten days were granted. The proceedings began on March 23. Senator Garrett Davis argued that because not all states were represented in the Senate the trial could not be held and that it should therefore be adjourned. The motion was voted down. After the charges against the President were made, Henry Stanberry asked for another thirty days to assemble evidence and summon witnesses, saying that in the ten days previously granted there had only been enough time to prepare the President's reply. Senator (and former Union General) John A. Logan argued that the trial should begin immediately and that Stanberry was only trying to stall for time. The request was turned down in a vote 41 to 12. However, the Senate voted the next day to give the defense six more days to prepare evidence.
The trial commenced again on March 30. Benjamin F. Butler opened for the prosecution with a three hour speech reviewing historical impeachment trials, going back to King John of England. For days Butler spoke out against Johnson's violations of the Tenure of Office Act and further charged that the President had issued orders directly to Army officers without sending them through General Grant. The defense argued that Johnson had not violated the Tenure of Office Act because President Abraham Lincoln did not reappoint Stanton Secretary of War at the beginning of his second term in 1865 and that he was therefore a leftover appointment from the 1860 cabinet, which removed his protection by the Tenure of Office Act. The prosecution called several witnesses in the course of the proceedings until April 9, when they rested their case.
Benjamin R. Curtis called attention to the fact that after the House passed the Tenure of Office Act, the Senate had amended it, meaning that it had to go back to a Senate-House conference committee to resolve the differences. He followed up by quoting the minutes of those meetings, which revealed that while the House members made no notes about the fact, their sole purpose was to keep Stanton in office, and the Senate had disagreed. The defense then called their first witness, Adjutant General Lorenzo Thomas. He did not provide adequate information in the defense's cause and Butler made attempts to use his information to the prosecution's advantage. The next witness was General William T. Sherman, whose testimony benefited the prosecution.
At the conclusion of the evidence, three votes were taken and on all three occasions, thirty-five Senators voted "guilty" and nineteen "not guilty". As the Constitution requires a two-thirds majority for conviction in impeachment trials, Johnson was acquitted. Just one changed vote to guilty would have sufficed for a "guilty" verdict.
Seven Republican senators were concerned that the proceedings were unfair and defied their party by voting against conviction. After the trial, there were widespread reports that Republican senators had been bribed to vote for Johnson's acquittal. In subsequent inquiries, there was evidence that some acquittal votes were acquired by promises of patronage jobs and cash bribes.
Subsequent decisions of the United States Supreme Court held the Tenure of Office Act to be invalid, supporting the notion that this was not a proper ground to seek Johnson's removal from office. Historian Eric Foner argues that violations of the Tenure of Office Act were of secondary importance in the impeachment. Rather, he argues that Johnson wanted to use his position as commander in chief of the military to undermine the Reconstruction Act of 1867. The Tenure of Office Act was beside the point, Johnson's real crime was being out of step with a nation undergoing profound social change.