In the 1860s, a president’s unilateral firing of a cabinet member could become an automatically impeachable offense, thanks to a law intended to restrict presidential powers. In fact, it was a law that almost got a sitting president—Andrew Johnson—booted out of office.
The Tenure of Office Act seemed simple—it prevented the president from firing cabinet appointments that Congress had previously approved. But when President Andrew Johnson defied it, a standoff resulted. As a result of his combative attempt to skirt the law, Johnson was nearly impeached and has gone down in history as one of America’s worst presidents for his defiance.
Before the law was passed, presidents could fire cabinet members at will. But the law—created to stop Johnson’s attempts to soften Reconstruction for Southern states after the Civil War—wasn’t just any Congressional act. It resulted in an increasingly absurd spiral of one-upmanship that culminated in a rare presidential veto, an even rarer congressional override, a sensational impeachment trial that was so well-attended that Congress had to raffle off tickets, and an ongoing conflict over executive power.
It all started when Johnson, a Southerner who decided to support the North during the Civil War, was picked to run alongside Abraham Lincoln in 1864. The nation was in the midst of a roiling war, and Lincoln’s presidency was shaky as casualties racked up and opposition to his policies mounted. Lincoln needed to reach across the aisle, so he chose Johnson, a populist from Tennessee.
The strange vice-presidential pick worked, and Johnson got down to work as the vice president in 1865. But then disaster struck when Lincoln was assassinated. Johnson assumed the presidency, but it turned out his ideas about how to deal with the former Confederacy were quite different from his majority-Republican Congress.
Johnson didn’t want to punish former Confederate leaders, and he didn’t want to advance the cause of former slaves. He enacted a relatively lenient Reconstruction policy that allowed states to draw up their own constitution, then petition to be readmitted into the Union. He offered what Radical Republicans saw as a treasonous olive branch to former Confederates: a blanket pardon to most former rebels, and a chance for Confederate leaders to petition him for pardons.
READ MORE: How Many Presidents Have Faced Impeachment?
Soon, Johnson had pardoned nearly every Confederate leader. Furious, an increasingly radical Congress worked to stop him. They began to work around his Reconstruction policy by introducing the 14th and 15th Amendments, which countered white Southerners’ bid to reestablish white supremacy in the South. Since the war’s end, violence against African-Americans had raged, and Southern states began passing new “black codes” that restricted African-Americans’ freedoms. The amendments were a way to put a stop to that wave of racism—and a workaround that bypassed the president’s own lenient policies.
VIDEO: Fifteenth Amendment Historian Yohuru Williams give a brief rundown of the history of the 15th Amendment, which outlawed voting rights discrimination after the Civil War.
Johnson was outraged. He saw the amendments as affronts to states’ rights and encouraged Southern states not to ratify them. “This is a country for white men, and by God, as long as I am President, it shall be a government for white men,” he wrote to Missouri’s governor.
As Johnson became more and more defiant, Congress became more and more determined to curb his power in a bid to save Reconstruction. They made their move by passing Reconstruction laws that were more sweeping than Johnson’s plan—then secured their ability to enforce them by passing the Tenure of Office Act. The law, which required the president to seek their approval before firing any executive officer they’d helped approve, would keep Johnson from sacking his Secretary of War, who was tasked with carrying out most of the Congressional Reconstruction plan.
Or so they thought. True to form, Johnson vetoed the bill. Congress then overrode the veto and the Tenure of Office Act went into law on March 3, 1867.
But Johnson wouldn’t be checked so easily. He gave his Secretary of War, Republican Reconstruction supporter Edwin Stanton, the boot by suspending him from his office while Congress was on recess. In a letter, Stanton responded angrily that “I am compelled to deny your right under the Constitution and laws of the United States…to suspend me from office.” But he had no alternative, he wrote, and stepped aside for Ulysses S. Grant, whom Johnson had appointed as interim Secretary of War.
When the Senate returned, they reinstated Stanton. Now, Grant stepped aside. Stanton was Secretary of War once more, so Johnson responded by firing him. In an even more spiteful move, he named Lorenzo Thomas, a general Stanton had disliked so much during the Civil War that he had threatened to “pick [him] up with a pair of tongs and drop him from the nearest window,” as Secretary of War instead. Furious, Stanton arrested Thomas for violating the law.
“It had become a comic opera,” writes historian Michael A. Eggleston, and the next act was a Congressional attempt to impeach Johnson for violating the act. In March 1868, the House of Representatives approved nine articles of impeachment and brought them to the Senate. Johnson’s trial became a public spectacle, and so many came to the Senate Chamber to watch it that the Senate began to hold a lottery for gallery passes. A thousand tickets were printed each day for the general public, and Senators had to turn away hundreds of constituents who begged them for a front-row seat on the dramatic trial. Today, the raffle system still exists—a little-known remnant of the impeachment spectacle.
Meanwhile, the president worked behind the scenes to appease Congress, appointing a Secretary of War, John M. Schofield, whom the Republicans liked better and promising to uphold Congressional Reconstruction. Ultimately, Johnson was impeached in the House of Representatives by 126 votes to 47, but narrowly avoided a two-thirds guilty verdict in the Senate by a single vote. After his acquittal, he served out the rest of his term.
But the Tenure of Office Act lived on. It was only revoked in 1887 after another standoff. When President Grover Cleveland summarily removed over 600 appointees with no explanation, Congress claimed he had violated the act and demanded that Cleveland’s cabinet provide documentation for the firings. Cleveland told his cabinet not to comply, and argued that the act didn’t apply. He even challenged Congress to impeach him if they didn’t like his appointments.
Eventually, Congress backed down and repealed the act. But it wasn’t quite dead yet. In 1920, when President Woodrow Wilson removed Frank S. Myers, a postmaster, from his position, without Congressional consent, Myers took him to court. He claimed that Wilson had violated an 1876 act of Congress that required presidents to get permission from Congress before removing postmasters.
The Supreme Court disagreed, and in their opinion on Myers v. United States, made it clear that a president has the power to appoint and remove executive officials. Johnson’s standoff had sparked a years-long debate about executive power—one that still rages today.
Andrew Johnson Impeached
Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy, by David O. Stewart, Simon and Schuster, 2009.
Fulfilling the promise of the Emancipation Proclamation, Congress ratified the 13th Amendment abolishing slavery in December 1865. In the South, however, the amendment proved to be a hollow measure. The former Confederate states adopted laws that effectively returned recently freed slaves to bondage on the slimmest of pretexts, and the small Federal occupying army in the region couldn’t prevent widespread violence against African Americans. It didn’t help that in the White House there was no sympathy for the plight of the freedmen. President Andrew Johnson strove to unconditionally reintegrate the seceded states and relegate to them the authority to decide upon black suffrage, but the Radical Republicans—the dominant block in Congress—wanted to punish the South and guarantee the rights of its black population. A national crisis in the wake of the Civil War was inevitable.
Johnson not only vetoed the Freedman’s Bureau Bill and civil rights acts, he also opposed the 14th Amendment. Congress struck back at him with the Tenure of Office Act, which prohibited the president from dismissing cabinet members without congressional consent. Johnson tested the measure by firing Secretary of War Edwin M. Stanton, who supported Radical views. But Stanton refused to leave office, and the House brought impeachment charges against Johnson in 1866. In a Senate trial decided by one vote, the president was acquitted.
Impeached, David O. Stewart’s new book, brilliantly examines the heated passions and sordid politics surrounding the impeachment crisis. Stewart demonstrates conclusively that, contrary to popular perception, Johnson abandoned Lincoln’s legacy—and it was Thaddeus Stevens and the Radical Republicans who did all they could to preserve it.
Stewart’s meticulous research in untapped primary sources suggests new and compelling conclusions about the proceedings in the case. Among these is the strong possibility that the vote of Senator Edmund Ross, which saved Johnson, had been bought. At a minimum, Stewart indicates Ross and many other senators voted less from ideals than considerations of personal gain. To his credit, he does not go beyond the bounds of evidence into mere speculation.
Although Stewart acknowledges that much of the evidence he presents is circumstantial, it is difficult not to conclude that Johnson’s surrogates were knee-deep in dirty money.
The book also examines how some of the leading Northern figures of the war responded to the moral and political issues that defined early Reconstruction, including cabinet secretaries Gideon Welles and William Seward Generals Grant, Sherman and Sheridan and in particular former generals cum Congressmen Benjamin Butler and John Logan.
Johnson’s standoff with Stanton and Congress created real fears of renewed military conflict. His attempt to fire Stanton so profoundly frightened Union veterans that Congressman Logan, commander in chief of the Grand Army of the Republic, issued a secret call for the organization to be ready to defend Congress from violent usurpation.
The Impeachment of Andrew Johnson
The congressional effort to remove President Johnson from office was based largely on politics, and had it succeeded, it would have set a very dangerous precedent.
After the Confederacy was defeated to end the Civil War, there were many questions regarding how to restore the United States. President Abraham Lincoln had begun implementing a lenient restoration policy whereby southern citizens could reform their state governments if they swore allegiance to the Union, denounced secession, and recognized the abolition of slavery.
Radicals Oppose Johnson
When Lincoln was assassinated in April 1865, he was succeeded by Vice President Andrew Johnson, who attempted to continue Lincoln’s benevolent restoration policies. However Johnson was opposed by extremists, or Radicals, in the Republican Party who wished to punish the South.
The Radical majority in Congress passed a series of laws intended to subjugate the southern states by placing them under direct federal control. Johnson vetoed much of this legislation, but his vetoes were often overridden by two-thirds majorities. Even so, many Radicals came to believe that Johnson was obstructing their political agenda, and they set out to remove this impediment.
In 1867, Congress passed the Tenure of Office Act. This prohibited the president from removing executive appointees (including cabinet members) without Senate approval. The law was a clear violation of the separation of powers as proscribed in the Constitution, and Johnson sought to challenge the legislation by firing his secretary of war, Edwin Stanton.
The House Impeaches Johnson
In firing Stanton, Johnson played right into the Radicals’ hands because they now had a reason to impeach Johnson and remove him from office. Three days after Stanton was relieved, the House of Representatives voted 126 to 47 in favor of impeaching Johnson for “high crimes and misdemeanors.”
The House adopted 11 articles of impeachment, nine of which related to Stanton’s firing. The tenth concerned Johnson’s incendiary speeches about the Radicals, and the eleventh was a summary of charges, or a safety net designed to convict Johnson in case the first 10 articles failed.
Even before the House voted on impeachment, the Radicals had planned to install Senate president pro tempore, Benjamin Wade, in the White House. Wade was so confident that Johnson would be removed that he had selected his cabinet members before the impeachment trial even began.
The Senate Trial
Once the House voted to impeach, the trial moved to the Senate, where Chief Justice Salmon Chase presided and a two-thirds majority vote was required for conviction. If two-thirds (that is, 36) or more of the senators voted for conviction, then Johnson would be removed from office.
The Radicals dominated the prosecution team. Senator Benjamin Butler railed against southern atrocities, waving a bloody nightshirt and claiming that it belonged to an Ohio man who had moved south and was flogged by Mississippi “ruffians.” This practice of “waving the bloody shirt” helped Republicans win many future elections, but it had nothing to do with Johnson. In fact, even some of Butler’s fellow Radicals were embarrassed by the display.
Other prosecutors tried to portray Johnson as a dictator plotting to overthrow the government. Witnesses were bribed to testify against Johnson, and those supporting the president were denied testimony. The Radicals overrode several rulings by Chief Justice Chase, and to many it seemed that the trial was rigged against the president.
Meanwhile Johnson’s defense attorneys argued that only the articles regarding Stanton’s firing had legal merit. Of those, Johnson could not have violated the Tenure of Office Act because the law included the words “during the term of the President by whom he was appointed.” And Stanton had been appointed to his position by Lincoln, not Johnson. As the trial went on, it became clear that there was no evidence of criminal intent by Johnson.
When the vote came, the result was 35 to 19 in favor of conviction. This fell one vote shy of the necessary two-thirds majority needed to convict. Seven Republicans defied their party and voted for acquittal, mainly because they felt that the Radicals had overstepped their constitutional bounds. As a result, Johnson was acquitted of all charges.
The Precedent of the Impeachment
Andrew Johnson had broken no laws, and in fact had more closely adhered to the Constitution than the Republicans in Congress. Johnson was further vindicated in 1926 when the Supreme Court finally ruled that the Tenure of Office Act was unconstitutional.
Had Johnson been convicted, it would have set a very dangerous precedent in American history by showing that Congress could violate the separation of powers and remove a president from office for purely political reasons.
While VP, Johnson had formulated a Reconstruction Plan lenient toward the defeated South.
He planned to grant a general amnesty to anyone who pledged a loyalty oath, along with a program of rapid restoration of state status for the Confederacy. The Radical Republicans wanted to implement stricter terms for readmission to the Union. N ow that he was president, Andrew Johnson was intent on carrying out his plan.
The Radical Republicans passed the Reconstruction Acts, that provided suffrage to freed slaves and prevented former Rebels from controlling state governments. Johnson believed the acts unconstitutional and blocked their enforcement, repeatedly pardoning ex-Rebels. In public speeches, Johnson openly defied the Radical Republicans as unpatriotic. They knew their plans would not succeed with Andrew Johnson in the White House.
In March 1867, Congress passed the Tenure of Office Act over Johnson’s veto. The bill prevented the president from firing officials confirmed by the Senate, without Senate approval first . It was designed to shield members of Johnson’s Cabinet who disagreed with the president. One person in particular was Secretary of War Edwin Stanton, a Radical Republican. Even Abraham Lincoln had problems with Stanton.
Why They Impeached Andrew Johnson
An illustration of Johnson's impeachment trial in the United States Senate, by Theodore R. Davis.
Reconstruction after the Civil War posed some of the most discouraging problems ever faced by American statesmen. The South was prostrate. Its defeated armies straggled homeward through a countryside desolated by war. Southern soil was untilled and exhausted southern factories and railroads were worn out. The four billion dollars of southern capital invested in Negro slaves was wiped out by advancing Union armies, “the most stupendous act of sequestration in the history of Anglo-American jurisprudence.” The white inhabitants of eleven states had somehow to be reclaimed from rebellion and restored to a firm loyalty to the United States. Their four million former slaves had simultaneously to be guided into a proper use of their new-found freedom.
For the victorious Union government there was no time for reflection. Immediate decisions had to be made. Thousands of destitute whites and Negroes had to be led before long-range plans of rebuilding the southern economy could be drafted. Some kind of government had to be established in these former Confederate states, to preserve order and to direct the work of restoration.
A score of intricate questions must be answered: Should the defeated southerners be punished or pardoned? How should genuinely loyal southern Unionists be rewarded? What was to be the social, economic, and political status of the now free Negroes? What civil rights did they have? Ought they to have the ballot? Should they be given a freehold of property? Was Reconstruction to be controlled by the national government, or should the southern states work out their own salvation? If the federal government supervised the process, should the President or the Congress be in control?
Intricate as were the problems, in early April 1865, they did not seem insuperable. President Abraham Lincoln was winning the peace as he had already won the war. He was careful to keep every detail of Reconstruction in his own hands unwilling to be committed to any “exclusive, and inflexible plan,” he was working out a pragmatic program of restoration not, perhaps, entirely satisfactory to any group, but reasonably acceptable to all sections. With his enormous prestige as commander of the victorious North and as victor in the 1864 election, he was able to promise freedom to the Negro, charity to the southern white, security to the North.
The blighting of these auspicious beginnings is one of the saddest stories in American history. The reconciliation of the sections, which seemed so imminent in 1865, was delayed for more than ten years. Northern magnanimity toward a fallen foe curdled into bitter distrust. Southern whites rejected moderate leaders, and inveterate racists spoke for the new South. The Negro, after serving as a political pawn for a decade, was relegated to a second-class citizenship, from which he is yet struggling to emerge. Rarely has democratic government so completely failed as during the Reconstruction decade.
The responsibility for this collapse of American statesmanship is, of course, complex. History is not a tale of deep-dyed villains or pure-as-snow heroes. Part of the blame must fall upon ex-Confederates who refused to recognize that the war was over part upon freedmen who confused liberty with license and the ballot box with the lunch pail part upon northern antislavery extremists who identified patriotism with loyalty to the Republican party part upon the land speculators, treasury grafters, and railroad promoters who were unwilling to have a genuine peace lest it end their looting of the public till.
Yet these divisive forces were not bound to triumph. Their success was due to the failure of constructive statesmanship that could channel the magnanimous feelings shared by most Americans into a positive program of reconstruction. President Andrew Johnson was called upon for positive leadership, and he did not meet the challenge.
Andrew Johnson’s greatest weakness was his insensitivity to public opinion. In contrast to Lincoln, who said, “Public opinion in this country is everything,” Johnson made a career of battling the popular will. A poor white, a runaway tailor’s apprentice, a self-educated Tennessee politician, Johnson was a living defiance to the dominant southern belief that leadership belonged to the plantation aristocracy.
As senator from Tennessee, he defied the sentiment of his section in 1861 and refused to join the secessionist movement. When Lincoln later appointed him military governor of occupied Tennessee, Johnson found Nashville “a furnace of treason,” but he braved social ostracism and threats of assassination and discharged his duties with boldness and efficiency.
Such a man was temperamentally unable to understand the northern mood in 1865, much less to yield to it. For four years the northern people had been whipped into wartime frenzy by propaganda tales of Confederate atrocities. The assassination of Lincoln by a southern sympathizer confirmed their belief in southern brutality and heartlessness. Few northerners felt vindictive toward the South, but most felt that the rebellion they had crushed must never rise again. Johnson ignored this postwar psychosis gripping the North and plunged ahead with his program of rapidly restoring the southern states to the Union. In May, 1865, without any previous preparation of public opinion, he issued a proclamation of amnesty, granting forgiveness to nearly all the millions of former rebels and welcoming them back into peaceful fraternity. Some few Confederate leaders were excluded from his general amnesty, but even they could secure pardon by special petition. For weeks the White House corridors were thronged with ex-Confederate statesmen and former southern generals who daily received presidential forgiveness.
Ignoring public opinion by pardoning the former Confederates, Johnson actually entrusted the formation of new governments in the South to them. The provisional governments established by the President proceeded, with a good deal of reluctance, to rescind their secession ordinances, to abolish slavery, and to repudiate the Cofederate debt. Then, with far more enthusiasm, they turned to electing governors, representatives, and senators. By December, 1865, the southern states had their delegations in Washington waiting for admission by Congress. Alexander H. Stephens, once vice president of the Confederacy, was chosen senator from Georgia not one of the North Carolina delegation could take a loyalty oath and all of South Carolina’s congressmen had “either held office under the Confederate States, or been in the army, or countenanced in some way the Rebellion.”
Johnson himself was appalled. “There seems in many of the elections something like defiance, which is all out of place at this time,” he protested. Yet on December 5 he strongly urged the Congress to seat these southern representatives “and thereby complete the work of reconstruction.” But the southern states were omitted from the roll call.
Such open defiance of northern opinion was dangerous under the best of circumstances, but in Johnson’s case it was little more than suicidal. The President seemed not to realize the weakness of his position. He was the representative of no major interest and had no genuine political following. He had been considered for the vice presidency in 1864 because, as a southerner and a former slaveholder, he could lend plausibility to the Republican pretension that the old parties were dead and that Lincoln was the nominee of a new, nonsectional National Union party.
A political accident, the new Vice President did little to endear himself to his countrymen. At Lincoln’s second inauguration Johnson appeared before the Senate in an obviously inebriated state and made a long, intemperate harangue about his plebeian origins and his hard-won success. President, Cabinet, and senators were humiliated by the shameful display, and Charles Sumner felt that “the Senate should call upon him to resign.” Historians now know that Andrew Johnson was not a heavy drinker. At the time of his inaugural display, he was just recovering from a severe attack of typhoid fever. Feeling ill just before he entered the Senate chamber, he asked for some liquor to steady his nerves, and either his weakened condition or abnormal sensitivity to alcohol betrayed him.
Lincoln reassured Republicans who were worried over the affair: “I have known Andy for many years he made a bad slip the other day, but you need not be scared. Andy ain’t a drunkard.” Never again was Andrew Johnson seen under the influence of alcohol, but his reformation came too late. His performance on March 4, 1865, seriously undermined his political usefulness and permitted his opponents to discredit him as a pothouse politician. Johnson was catapulted into the presidency by John Wilkes Booth’s bullet. From the outset his position was weak, but it was not necessarily untenable. The President’s chronic lack of discretion made it so. Where common sense dictated that a chief executive in so disadvantageous a position should act with great caution, Johnson proceeded to imitate Old Hickory, Andrew Jackson, his political idol. If Congress crossed his will, he did not hesitate to defy it. Was he not “the Tribune of the People”?
Sure of his rectitude, Johnson was indifferent to prudence. He never learned that the President of the United States cannot afford to be a quarreler. Apprenticed in the rough-and-tumble politics of Frontier Tennessee, where orators exchanged violent personalities, crude humor, and bitter denunciations, Johnson continued to make stump speeches from the White House. All too often he spoke extemporaneously, and he permitted hecklers in his audience to draw from him angry charges against his critics.
On Washington’s birthday in 1866, against the advice of his more sober advisers, the President made an impromptu address to justify his Reconstruction policy. “I fought traitors and treason in the South,” he told the crowd “now when I turn around, and at the other end of the line find men—I care not by what name you call them—who will stand opposed to the restoration of the Union of these States, I am free to say to you that I am still in the field.”
During the “great applause” which followed, a nameless voice shouted, “Give us the names at the other end. … Who are they?”
“You ask me who they are,” Johnson retorted. “I say Thaddeus Stevens of Pennsylvania is one I say Mr. Sumner is another and Wendell Phillips is another.” Increasing applause urged him to continue. “Are those who want to destroy our institutions … not satisfied with the blood that has been shed? … Does not the blood of Lincoln appease the vengeance and wrath of the opponents of this government?”
The President’s remarks were as untrue as they were impolitic. Not only was it manifestly false to assert that the leading Republican in the House and the most conspicuous Republican in the Senate were opposed to “the fundamental principles of this government” or that they had been responsible for Lincoln’s assassination it was incredible political lolly to impute such actions to men with whom the President had to work daily. But Andrew Johnson never learned that the President of the United States must function as a party leader.
There was a temperamental coldness about this plain-featured, grave man that kept him from easy, intimate relations with even his political supporters. His massive head, dark, luxuriant hair, deep-set and piercing eyes, and cleft square chin seemed to Charles Dickens to indicate “courage, watchfulness, and certainly strength of purpose,” but his was a grim face, with “no genial sunlight in it.” The coldness and reserve that marked Johnson’s public associations doubtless stemmed from a deep-seated feeling of insecurity this self-educated tailor whose wife had taught him how to write could never expose himself by letting down his guard and relaxing.
Johnson knew none of the arts of managing men, and he seemed unaware that face-saving is important for a politician. When he became President, Johnson was besieged by advisers of all political complexions. To each he listened gravely and non-committally, raising no questions and by his silence seeming to give consent. With Radical Senator Sumner, already intent upon giving the freedmen both homesteads and the ballot, he had repeated interviews during the first month of his presidency. “His manner has been excellent, & even sympathetic,” Sumner reported triumphantly. With Chief Justice Salmon P. Chase, Sumner urged Johnson to support immediate Negro suffrage and found the President was “well-disposed, & sees the rights & necessities of the case.” In the middle of May, 1865, Sumner reassured a Republican caucus that the President was a true Radical he had listened repeatedly to the Senator and had told him “there is no difference between us.” Before the end of the month the rug was pulled from under Sumner’s feet. Johnson issued his proclamation for the reconstruction of North Carolina, making no provisions for Negro suffrage. Sumner first learned about it through the newspapers.
While he was making up his mind, Johnson appeared silently receptive to all ideas when he had made a decision, his mind was immovably closed, and he defended his course with all the obstinacy of a weak man. In December, alarmed by Johnson’s Reconstruction proclamations, Sumner again sought an interview with the President. “No longer sympathetic, or even kindly,” Sumner found, “he was harsh, petulant, and unreasonable.” The Senator was depressed by Johnson’s “prejudice, ignorance, and perversity” on the Negro suffrage issue. Far from listening amiably to Sumner’s argument that the South was still torn by violence and not yet ready tor readmission, Johnson attacked him with cheap analogies. “Are there no murders in Massachusetts?” the President asked.
“Unhappily yes,” Sumner replied, “sometimes.”
“Are there no assaults in Boston? Do not men there sometimes knock each other down, so that the police is obliged to interfere?”
“Would you consent that Massachusetts, on this account, should be excluded from Congress?” Johnson triumphantly queried. In the excitement of the argument, the President unconsciously used Sumner’s hat, which the Senator had placed on the floor beside his chair, as a spittoon!
Had Johnson been as resolute in action as he was in argument, he might conceivably have carried much of his party with him on his Reconstruction program. Promptness, publicity, and persuasion could have created a presidential following. Instead Johnson boggled. Though he talked boastfully of “kicking out” officers who failed to support his plan, he was slow to act. His own Cabinet, from the very beginning, contained members who disagreed with him, and his secretary of war, Edwin M. Stanton, was openly in league with the Republican elements most hostile to the President. For more than two years he impotently hoped that Stanton would resign then in 1867, after Congress had passed the Tenure of Office Act, he tried to oust the Secretary. This belated firmness, against the letter of the law, led directly to Johnson’s impeachment trial.
Instead of working with his party leaders and building up political support among Republicans, Johnson in 1866 undertook to organize his friends into a new party. In August a convention of white southerners, northern Democrats, moderate Republicans, and presidential appointees assembled in Philadelphia to endorse Johnson’s policy. Union General Darius Couch of Massachusetts marched arm in arm down the convention aisle with Governor James L. Orr of South Carolina, to symbolize the states reunited under Johnson’s rule. The convention produced fervid oratory, a dignified statement of principles—but not much else. Like most third-party reformist movements it lacked local support and grass-roots organization.
Johnson himself was unable to breathe life into his stillborn third party. Deciding to take his case to the people, he accepted an invitation to speak at a great Chicago memorial honoring Stephen A. Douglas. When his special train left Washington on August 28 for a “swing around the circle,” the President was accompanied by a few Cabinet members who shared his views and by the war heroes Grant and Farragut.
At first all went well. There were some calculated political snubs to the President, but he managed at Philadelphia, New York, and Albany to present his ideas soberly and cogently to the people. But Johnson’s friends were worried lest his tongue again get out of control. “In all frankness,” a senator wrote him, do not “allow the excitement of the moment to draw from you any extemporaneous speeches .”
At St. Louis, when a Radical voice shouted that Johnson was a “Judas,” the President flamed up in rage. “There was a Judas and he was one of the twelve apostles,” he retorted. “… The twelve apostles had a Christ. … If I have played the Judas, who has been my Christ that I have played the Judas with? Was it Thad Stevens? Was it Wendell Phillips? Was it Charles Sumner?” Over mingled hisses and applause, he shouted, “These are the men that stop and compare themselves with the Saviour and everybody that differs with them … is to be denounced as a Judas.”
Johnson had played into his enemies’ hands. His Radical foes denounced him as a “trickster,” a “culprit,” a man “touched with insanity, corrupted with lust, stimulated with drink.” More serious in consequence was the reaction of northern moderates, such as James Russell Lowell, who wrote, “What an anti-Johnson lecturer we have in Johnson! Sumner has been right about the cuss from the first….” The fall elections were an overwhelming repudiation of the President and his Reconstruction policy.
Johnson’s want of political sagacity strengthened the very elements in the Republican party which he most feared. In 1865 the Republicans had no clearly defined attitude toward Reconstruction. Moderates like Gideon Welles and Orville Browning wanted to see the southern states restored with a minimum of restrictions Radicals like Sumner and Stevens demanded that the entire southern social system be revolutionized. Some Republicans were passionately concerned with the plight of the freedmen others were more interested in maintaining the high tariff and land grant legislation enacted during the war. Many thought mostly of keeping themselves in office, and many genuinely believed, with Sumner, that “the Republican party, in its objects, is identical with country and with mankind.” These diverse elements came slowly to adopt the idea of harsh Reconstruction, but Johnson’s stubborn persistency in his policy left them no alternative. Every step the President took seemed to provide “a new encouragement to (1) the rebels at the South, (2) the Democrats at the North and (3) the discontented elements everywhere.” Not many Republicans would agree with Sumner that Johnson’s program was “a defiance to God and Truth,” but there was genuine concern that the victory won by the war was being frittered away.
The provisional governments established by the President in the South seemed to be dubiously loyal. They were reluctant to rescind their secession ordinances and to repudiate the Confederate debt, and they chose high-ranking ex-Confederates to represent them in Congress. Northerners were even more alarmed when these southern governments began to legislate upon the Negro’s civil rights. Some laws were necessary—in order to give former slaves the right to marry, to hold property, to sue and be sued, and the like—but the Johnson legislatures went far beyond these immediate needs. South Carolina, for example, enacted that no Negro could pursue the trade “of an artisan, mechanic, or shopkeeper, or any other trade or employment besides that of husbandry” without a special license. Alabama provided that “any stubborn or refractory servants” or “servants who loiter away their time” should be fined $50 and, if they could not pay, be hired out for six months’ labor. Mississippi ordered that every Negro under eighteen years of age who was an orphan or not supported by his parents must be apprenticed to some white person, preferably the former owner of the slave. Such southern laws indicated a determination to keep the Negro in a state of peonage.
It was impossible to expect a newly emancipated race to be content with such a limping freedom. The thousands of Negroes who had served in the Union armies and had helped conquer their former Confederate masters were not willing to abandon their newfound liberty. In rural areas southern whites kept these Negroes under control through the Ku Klux Klan. But in southern cities white hegemony was less secure, and racial friction erupted in mob violence. In May, 1866, a quarrel between a Memphis Negro and a white teamster led to a riot in which the city police and the poor whites raided the Negro quarters and burned and killed promiscuously. Far more serious was the disturbance in New Orleans two months later. The Republican party in Louisiana was split into pro-Johnson conservatives and Negro suffrage advocates. The latter group determined to hold a constitutional convention, of dubious legality, in New Orleans, in order to secure the ballot for the freedmen and the offices for themselves. Through imbecility in the War Department, the Federal troops occupying the city were left without orders, and the mayor of New Orleans, strongly opposed to Negro equality, had the responsibility for preserving order. There were acts of provocation on both sides, and finally, on July 30, a procession of Negroes marching toward the convention hall was attacked.
“A shot was fired … by a policeman, or some colored man in the procession,” General Philip Sheridan reported. “This led to other shots, and a rush after the procession. On arrival at the front of the Institute [where the convention met], there was some throwing of brick-bats by both sides. The police … were vigorously marched to the scene of disorder. The procession entered the Institute with the flag, about six or eight remaining outside. A row occurred between a policeman and one of these colored men, and a shot was again fired by one of the parties, which led to an indiscriminate firing on the building, through the windows, by the policemen.
“This had been going on for a short time, when a white flag was displayed from the windows of the Institute, whereupon the firing ceased and the police rushed into the building. … The policemen opened an indiscriminate fire upon the audience until they had emptied their revolvers, when they retired, and those inside barricaded the doors. The door was broken in, and the firing again commenced when many of the colored and white people either escaped out of the door, or were passed out by the policemen inside, but as they came out, the policemen who formed the circle nearest the building fired upon them, and they were again fired upon by the citizens that formed the outer circle.”
Thirty-seven Negroes and three of their white friends were killed 119 Negroes and seventeen of their white sympathizers were wounded. Of their assailants, ten were wounded and but one killed. President Johnson was, of course, horrified by these outbreaks, but the Memphis and New Orleans riots, together with the Black Codes, afforded a devastating illustration of how the President’s policy actually operated. The southern states, it was clear, were not going to protect the Negroes’ basic rights. They were only grudgingly going to accept the results of the war. Yet, with Johnson’s blessing, these same states were expecting a stronger voice in Congress than ever. Before 1860, southern representation in Congress had been based upon the white population plus three fifths of the slaves now the Negroes, though not permitted to vote, were to be counted like all other citizens, and southern states would be entitled to at least nine additional congressmen. Joining with the northern Copperheads, the southerners could easily regain at the next presidential election all that had been lost on the Civil War battlefield.
It was this political exigency, not misguided sentimentality nor vindictiveness, which united Republicans in opposition to the President.
Johnson’s defenders have pictured Radical Reconstruction as the work of a fanatical minority, led by Sumner and Stevens, who drove their reluctant colleagues into adopting coercive measures against the South. In fact, every major piece of Radical legislation was adopted by the nearly unanimous vote of the entire Republican membership of Congress. Andrew Johnson had left them no other choice. Because he insisted upon rushing Confederate-dominated states back into the Union, Republicans moved to disqualify Confederate leaders under the Fourteenth Amendment. When, through Johnson’s urging, the southern states rejected that amendment, the Republicans in Congress unwillingly came to see Negro suffrage as the only counterweight against Democratic majorities in the South. With the Reconstruction Acts of 1867 the way was open for a true Radical program toward the South, harsh and thorough.
Andrew Johnson became a cipher in the White House, futilely disapproving bills which were promptly passed over his veto. Through his failure to reckon with public opinion, his unwillingness to recognize his weak position, his inability to function as a party leader, he had sacrificed all influence with the party which had elected him and had turned over its control to Radicals vindictively opposed to his policies. In March, 1868, Andrew Johnson was summoned before the Senate of the United States to be tried on eleven accusations of high crimes and misdemeanors. By a narrow margin the Senate failed to convict him, and historians have dismissed the charges as flimsy and false. Yet perhaps before the bar of history itself Andrew Johnson must be impeached with an even graver charge—that through political ineptitude he threw away a magnificent opportunity.
Impeachment and the Case of Andrew Johnson
Impeachment to remove a government official has a long
history, but the grounds for it remain controversial. Congress has impeached, tried, and acquitted three presidents: Andrew Johnson, Bill Clinton, and Donald Trump. Andrew Johnson’s impeachment was the first, and it highlights the controversies of this practice.
I mpeachment originated in England where the House of Commons impeached or accused high officials of serious misconduct such as accepting bribes. The House of Lords then tried the impeached official. Members of the House of Commons, called “managers,” prosecuted while the Lords judged. If convicted, the official was removed from office and could suffer other punishments, including prison and even execution.
Some of the American colonies adopted the practice of impeaching executive officials. After the Declaration of Independence in 1776, most states of the now-independent United States included impeachment in their constitutions. However, there was one important difference between the impeachment process in England and that in American states. Conviction did not result in any penalty beyond removal from office.
After the Revolutionary War, delegates from the states assembled in Philadelphia and wrote a Constitution for the new United States. They designed ways to try to prevent the legislative, executive, and judicial branches of government from becoming too powerful.
The delegates debated the question of impeaching the president. George Washington worried about “some aspiring demagogue who will not consult the interest of his country as much as his own ambitious views.” The delegates finally decided impeachment was a necessary safeguard against a president who abused his powers.
What Does the Constitution Say About Impeachment?
Article II, Section 4, states that the president, vice president, “and all civil officers of the United States” may be impeached and then removed from office if convicted of “treason, bribery, or other high crimes and misdemeanors.” The term “civil officers” includes judges and other officials appointed by the president and confirmed by the Senate. Article I, Sections 2 and 3 state the procedures for the impeachment process. The House of Representatives “shall have the sole power of impeachment,” and the Senate “shall have the sole power to try all Impeachments.” An official can only be convicted by a vote of two-thirds of the senators.
Under Article I, Section 3, the consequences of conviction include removal from office and disqualification from holding any future federal office. Once removed, the official would become a private citizen, subject to trial and judgment in criminal and civil courts. Article II, Section 2, prohibits the president from pardoning anyone who had been impeached.
‘Other High Crimes and Misdemeanors’
Early in their debates on impeachment, the delegates at the Constitutional Convention chose to limit the grounds for impeachment. They quickly agreed on treason and bribery.
The delegates debated other grounds for impeachment. Some were serious crimes like embezzlement of public funds. However, they also argued for non-criminal behavior like misuse of presidential powers.
James Madison and George Mason realized that the list of offenses could be endless. They finally joined to add to treason and bribery “other high crimes and misdemeanors.” The English often used this phrase in their impeachments, which referred to serious offenses and behavior that could include criminal or non-criminal acts.
According to Madison’s notes from the Convention, the delegates adopted “other high crimes and misdemeanors” without much discussion. They seemed to know that this phrase meant acts equal in seriousness to treason and bribery.
In Federalist Paper №65, Alexander Hamilton wrote perhaps the most quoted definition of impeachable offenses: “The subjects of [an impeachment trial] are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Furthermore, the offenses “are of a nature . . . POLITICAL, as they relate chiefly to injuries done immediately to society itself.” (Emphasis added by Hamilton himself.) In other words, an impeachment trial is a political, and not a criminal, process.
The Founding Fathers rejected impeaching someone for making a mistake, using poor judgment or committing a minor crime. They appeared to leave “other high crimes and misdemeanors” to be clarified over time by the House of Representatives in actual impeachments.
Some today argue that only the violation of some criminal law is within the meaning of “other high crimes and misdemeanors.” The defense argued this in the Andrew Johnson and Donald Trump impeachment trials. Harvard law professor emeritus Alan Dershowitz was on Trump’s defense team in 2020 and argued that “high crimes and misdemeanors” originally were violations of “laws written or unwritten . . . [which] meant . . . at the time of the Constitution . . . common law crimes.”
However, most constitutional scholars disagree. For example, Professor Frank O. Bowman III of University of Missouri School of Law wrote in 2020, “The almost universal consensus — in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since — has been that criminal conduct is not required.”
Most impeachments in American history have been of judges who serve life terms on “good behavior.” Fifteen federal judges have been impeached, but the Senate removed only eight of them from office. In less than a third of those impeachments, the House has specifically referred to a criminal law.
Besides these cases involving federal judges, the Senate has convicted and removed only five other impeached federal officials. Most constitutional scholars say that the writers of the Constitution purposely set the two-thirds requirement for conviction by the Senate high to make it rare.
Andrew Johnson vs. the Radical Republicans
Andrew Johnson’s political career began in Tennessee. He was a Democrat who won elections to the House of Representatives, the governorship of
Tennessee, and finally the U.S. Senate in 1856.
Although he owned slaves and rejected abolition, Johnson opposed Tennessee’s secession from the Union. When the state did vote to secede in 1861, Johnson feared for his safety and fled. He was the only Southern senator who did not resign his seat when his state seceded. In Lincoln’s re-election campaign of 1864, the Republicans chose Johnson, still a Democrat, to run with Lincoln as his vice presidential running mate to draw Democratic voters.
Johnson ignored the plight of ex-slaves, called freedmen, who were impoverished, landless, unemployed, and already subject to persecution and violence. He also opposed granting freed slaves the right to vote. “As long as I am president it shall be a government for white men,” he declared.
The overwhelming Republican majority in Congress was split between moderates, who wanted Johnson to simply modify his plans, and the Radical Republican faction. Both groups wanted equal civil rights for the freedmen and their integration into American society. But the Radicals strongly objected to Johnson allowing former Confederate leaders to regain political power. Newly formed Southern governments passed “black codes” that restricted the freedmen’s rights. The Radicals demanded protection and equal rights for the freedmen.
Johnson and the Congress disagreed over who should be in charge of restoring the South to the Union, a policy called Reconstruction. Johnson vetoed black civil rights laws passed by the Republican-dominated Congress. He vetoed every Reconstruction law passed by Congress, but Congress overrode the vetoes. Johnson still resisted enforcing these laws.
Johnson argued that the Reconstruction laws and even Congress itself were unconstitutional because not one of the former Confederate states was yet represented in the House or Senate. During the congressional elections of 1866, Johnson went on a speaking tour and attacked the Radical Republican Congress. However, the Republicans won big victories and ended up with more than two-thirds majorities in both houses of Congress.
Congress then passed the Reconstruction Act of 1867 that established military rule and voting rights for black men in the Southern states. Johnson vetoed the act, but the Congress overrode him again.
Impeachment of Johnson
The Radical Republicans were worried that Johnson might start firing members of the Cabinet whom Lincoln had appointed. In March 1867, Congress passed the Tenure of Office Act, which barred the president from removing federal officials confirmed by the Senate, including Cabinet officers, without consent by the Senate. The Radicals made violating this act a “high misdemeanor.”
The Radicals especially wanted to protect Secretary of War Edwin Stanton, a strong supporter of their Reconstruction program. Johnson wanted to dismiss Stanton, but Lincoln was the president who had appointed Stanton. Would Stanton then be entitled to remain in office until the end of Lincoln’s term (unless the Senate consented to his removal)? Or, would Stanton’s appointment end with the death of Lincoln, thus allowing Johnson to fire and replace him with someone else with the Senate’s consent? The
Constitution did not say anything about this. As expected, Johnson vetoed the Tenure of Office Act. But Congress promptly overrode the veto.
After Johnson suspended Stanton and replaced him in 1867, the Senate reinstated Stanton. Johnson finally fired and replaced Stanton on February 21, 1868, informing the Senate of his decision. Johnson’s position was that the law was an unconstitutional violation of separation of powers, and he violated it to test it in the courts. The Senate refused to confirm Johnson’s replacement of Stanton and voted to reinstate Stanton as secretary of war. Stanton even barricaded himself inside his office and ordered his replacement to be arrested.
Just a few days later, on February 24, the House of Representatives voted to impeach Andrew Johnson, 126 to 47. He was the nation’s first president to face impeachment and a trial for his removal. On March 11, the House sent 11 articles of impeachment to the Senate for his trial. The Senate only needed to find him guilty on one article in order to remove him.
Most of the articles detailed Johnson’s violation of the Tenure of Office Act. Article 10 accused him of attempting “to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States.” Article 11 stated Johnson violated his oath of office to “take care that the laws be faithfully executed.”
Senate Trial of Johnson
At the Senate trial, there were seven House “managers” (prosecutors) and five lawyers defending the president. Chief Justice of the United States Salmon P. Chase presided over the trial, but the senators could and did overrule him. Dozens of witnesses testified. Johnson himself did not appear at the trial upon the advice of his lawyers.
The House managers began their case on March 30. The entire trial lasted about two months.
The House managers’ main case against President Johnson:
• Johnson violated the Tenure of Office Act when he fired Stanton and appointed a replacement. Since Lincoln had appointed Stanton, Stanton was entitled to remain in office until the end of Lincoln’s term. Johnson could only fire and replace Stanton with Senate consent, which it denied.
• Johnson violated his oath of office by refusing to enforce the Reconstruction laws enacted by Congress.
• Johnson encouraged the Southern states to resist the Reconstruction laws that included the right of black men to vote.
• Johnson insulted Congress by saying such things as it had “undertaken to poison the minds of
the American people,” which undermined the Constitution’s article I on the legislative branch
President Johnson’s lawyers’ main case defending him:
• Stanton’s tenure of office ended with the death of Lincoln. Thus, the Tenure of Office Act did not apply to him, and Johnson’s firing of him did not require Senate consent. Therefore, Johnson did not violate the law but wanted to test it in the courts.
• The Tenure of Office Act intruded on the Constitution’s Article II powers of the president.
• Johnson was reluctant to execute the Reconstruction acts because he believed they were unconstitutional since the southern states were not represented in Congress.
• As for Johnson’s insulting speeches against Congress, the First Amendment’s free speech clause protected him just like any other citizen.
One of Johnson’s lawyers, Benjamin Curtis, a former Supreme Court justice, argued that “high crimes and misdemeanors” meant “only high criminal offenses against the United States . . . so high that they belong in [the] company with treason and bribery.” The president had committed no such crimes, Curtis concluded therefore he must be acquitted.
Manager John Bingham replied to Curtis that President Johnson did violate the Tenure of Office Act. But, Bingham argued, Johnson did not have to violate a law or commit a crime to be impeached. His refusal to enforce the Reconstruction and black civil rights laws along with his speeches attacking Congress were “high crimes and misdemeanors.”
When the trial ended in early May, the senators deliberated in secret for several days. Three conservative Republicans announced they would vote not guilty. Seven Republicans were undecided. There is evidence that friends of Johnson offered undecided Republicans attractive government jobs if they voted to acquit him.
The decisive vote took place on May 12. Under the two-thirds rule, 36 of the 54 senators had to vote guilty to convict. If 19 voted not guilty, the impeachment would fail, and that is how it ended up. Nine Democrats and ten Republicans voted to acquit Johnson. The impeachers failed by one vote.
Republican Sen. Edmund Ross of Kansas cast the 19th not guilty vote. For years, many celebrated Ross as a “profile in courage” who voted against his party to sustain a strong independent presidency. However, recent research has revealed that soon after his vote, Ross got federal appointments for close friends as the price for his not-guilty vote.
Johnson served out his last eight months, hated by the Republicans. When he left office, he failed to win the Democratic nomination for president. In 1875, Tennessee returned him to the Senate where he had been tried, and he died soon after.
Meanwhile, Congress passed the 15th Amendment, granting black men the right to vote (ratified in 1870). Congress eventually repealed the Tenure of Office Act, which the Supreme Court found to be unconstitutional in 1926.
Questions for Discussion
1. Andrew Johnson argued he had the right to fire Secretary of War Stanton and submit his own appointment for Senate consent. The House managers argued Stanton had the right to remain in office to fill out Lincoln’s term unless the Senate gave consent to a replacement. Which side do you think had the better argument? Why?
2. Conviction after a Senate impeachment trial requires a two-thirds vote by the senators. Do you think two-thirds is too high? Why or why not?
3. At President Donald Trump’s impeachment trial in 2020, the president’s lawyer Alan Dershowitz echoed Andrew Johnson’s lawyer Benjamin Curtis by stating that a president could only be impeached and removed for a specific crime or for “criminal-like conduct akin to treason and bribery.” Do you agree? Why or why not? Use evidence from the article.
This article was originally published in the Spring 2020 issue of Bill of Rights in Action (BRIA), the quarterly curricular magazine of Constitutional Rights Foundation. Click here for a classroom activity on this article, plus writing and discussion questions for use with high school students. You can also subscribe to BRIA for free here.
Andrew Johnson Impeached
On February 24, 1868, Andrew Johnson became the first American president to be impeached.
When Abraham Lincoln ran for re-election in 1864, his party felt he needed a Southerner to help repair the nation following the anticipated end of the Civil War. As a Southerner, a strong Unionist, and a leading member of the War Democrats, Andrew Johnson was an ideal candidate and they won by a landslide.
However, Johnson served as vice president for just six weeks before Abraham Lincoln was assassinated on April 14, 1865. In February of 1866, Congress passed an Extension of the Freedman’s Bureau, a federal refugee program that protected and gave shelter and other assistance to former slaves. It also held trials by military commissions of people accused of denying African Americans’ civil rights.
U.S. #2217h – 1986 Johnson Silk Cachet First Day Cover.
Surprising Congress, Johnson vetoed the bill and claimed it was race legislation. Five months later, Congress passed the bill over Johnson’s veto. Similarly, Johnson vetoed Congress’ Civil Rights Act of 1866, which declared all persons born in the United States (except Native Americans) as citizens, and granted them certain rights. Again, Johnson vetoed the bill, and again, Congress passed it anyway.
Item #97828 – Commemorative Platinum Coin Cover marking Johnson’s 185th birthday.
As the interim election of 1866 approached, Johnson had lost support within his party for his Reconstruction policies. With seemingly no one on his side, he embarked on a speaking tour, appealing to the public and searching for new political support. His plan backfired, and he was seen as crude in his attacks on his fellow politicians and Republicans. The anti-Johnson Republicans won two thirds of both houses, giving his opponents the power to completely override his programs.
Item #81118B – Commemorative cover marking Johnson’s 118th birthday.
Congress passed new laws, requiring the Southern states to hold constitutional conventions with universal manhood suffrage. They had to establish their governments, ratify the 14th Amendment, and guarantee black male suffrage. Further, Congress passed laws to limit Johnson’s power, including the Tenure of Office Act, which declared the President could not remove certain federal officials without senatorial approval.
U.S. #138 – Edwin Stanton stamp with “H” Grill.
Offended by their extreme measures, Johnson challenged Congress by firing Secretary of War Edwin Stanton in August 1867, replacing him with General Ulysses S. Grant, who refused the position. When Congress returned in December, Johnson gave his reasons to the Senate, but they refused to accept it based on the new law.
The following February, Johnson fired Stanton again. Three days later, on February 28, 1868, the House voted to impeach the President by a vote of 126 to 47. With 11 charges against him, Johnson went on trial before the Senate on March 30. His lawyer argued that he was simply testing the constitutionality of the Tenure of Office Act. In May, the Senate held three votes, each one vote short of getting the two-thirds majority needed to convict. Click here to view an admission ticket to his impeachment trial.
Despite his continuing battles with Congress and the massive task of Reconstruction, Johnson’s term is more positively remembered for some of his foreign policy measures, and William Seward’s purchase of Alaska. After leaving the White House he became the only U.S. president to serve in the Senate following his term.
U.S. #800 commemorates the development of the Alaska Territory.
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Worst President in History
I t seems like ages have passed, not just nine months, since the all-consuming public issue in the United States was the impeachment of Donald Trump. The trial was a giant anticlimax, of course, its proceedings lacking witnesses, its outcome predetermined. That Trump remains in the White House reminds us that there is almost no way of unseating an American president, even one manifestly unfit for office. Apart from a cumbersome process outlined in the constitution&rsquos 25th Amendment, whereby the vice president and a majority of the cabinet can oust a president who becomes physically or mentally incapacitated, the only mode of removal &ndash other than an election &ndash is impeachment.
The constitution provides that a majority of the House of Representatives may impeach (that is, indict) the president for &lsquotreason, bribery or other high crimes and misdemeanours&rsquo. A trial then takes place in the Senate, where conviction and removal requires a two-thirds vote. As on numerous other matters, the constitution is frustratingly opaque when it comes to details. Most people think they can recognise treason and bribery when they see them, but what constitutes a high crime or a misdemeanour? In the Federalist Papers, Alexander Hamilton described impeachment as a political process, not a criminal one &ndash a way of punishing &lsquoan abuse or violation of some public trust&rsquo. But generally, Congress has assumed that impeachment requires the president to have violated a specific law. The constitution says nothing about the way an impeachment trial is to be conducted, other than that the chief justice of the Supreme Court presides. History shows that impeachment is a blunt instrument. The threat of it led Richard Nixon to resign, but all three presidents tried before the Senate have been acquitted.
In contrast to the impeachment of Bill Clinton in 1998, which arose from a sexual escapade, that of Andrew Johnson 130 years earlier involved some of the most intractable problems in American history. How should the nation be reunited after the Civil War? Who is entitled to American citizenship and the right to vote? What should be the status of the four million emancipated slaves? As Brenda Wineapple shows in The Impeachers, Johnson&rsquos problem was his failure to rise to the challenge of Reconstruction after the Civil War.
When Abraham Lincoln was assassinated in April 1865, Johnson, the vice president, succeeded him. Like his predecessor, Johnson started out at the bottom of the social ladder. As a young man he was an indentured servant. But while in Lincoln early deprivation sparked open-mindedness, political dexterity and fellow feeling for the downtrodden, including slaves, Johnson was not only stubborn and self-absorbed, but incorrigibly racist. During the Civil War he came to embrace emancipation, but mostly because he believed it would liberate poorer white farmers from the tyranny of wealthy planters, whom he called the slaveocracy. His sympathy didn&rsquot extend to the slaves themselves.
Johnson didn&rsquot lack for personal courage. As a senator from Tennessee he remained loyal to the Union and continued to occupy his seat after his state seceded in 1861. Appointed military governor by Lincoln, he won plaudits in the North for denouncing secessionists as traitors and taking vigorous action against them, jailing local officials and newspaper editors. The Republican Party nominated him as Lincoln&rsquos running mate in 1864 in the hope of attracting a large cadre of white Southerners who opposed secession.
When Johnson became president, Congress was not in session &ndash in the peculiar political calendar of the 19th century, a Congress did not meet until more than a year after it was elected &ndash and for several months he had a free hand in developing Reconstruction policy. He seized the opportunity to set up new governments in the South controlled entirely by whites. These abolished slavery &ndash they had no choice &ndash but enacted a series of laws called the Black Codes to define the freedom African Americans now enjoyed. They had virtually no civil or political rights, and all adult black men were required to sign a labour contract with a white employer at the beginning of each year or be deemed a vagrant and sold to anyone who would pay the fine. Abandoning his hatred of the slaveocracy, Johnson handed out pardons indiscriminately to wealthy Confederates and ordered that land the federal government had allocated to former slaves be restored to the previous owners.
Johnson&rsquos policies alarmed the Republican Party, which controlled Congress, leading it to think that the South was trying to restore slavery in all but name. Early in 1866 lawmakers enacted measures to extend the life of the Freedmen&rsquos Bureau, a federal agency charged with overseeing the transition from slavery to freedom, and passed the first Civil Rights Act in American history, which extended citizenship and basic legal rights to blacks, overturning the Dred Scott Supreme Court decision of 1857 which had insisted that only white persons could be citizens of the United States. Johnson vetoed both bills. This was the start of an increasingly acrimonious conflict with Congress, in which, Wineapple writes, Johnson succeeded in &lsquounifying the entire Republican Party against him&rsquo. Meanwhile anti-black violence erupted across the South, including racial massacres in Memphis and New Orleans by mobs composed, in part, of white policemen (there is nothing new about the forces of law and order committing atrocities against blacks). In mid-1866, Congress approved the Fourteenth Amendment, which constitutionalised the principle that virtually anyone born in the United States, regardless of race, is a citizen, entitled to the equal protection of the laws. Johnson denounced the measure and embarked on the &lsquoSwing around the Circle&rsquo, a speaking tour of the Northern states to drum up votes for congressional candidates who opposed Republican reconstruction policy. When Republicans won a sweeping victory in the congressional elections, they moved to replace Johnson&rsquos Southern governments with ones in which black men enjoyed the right to vote and hold office. This inaugurated the era of Radical Reconstruction, a remarkable experiment in interracial democracy.
For many decades, historians viewed Reconstruction as the lowest point in the saga of American democracy, a period, allegedly, of corruption and misgovernment imposed on the South by vindictive Radical Republicans in Congress once they overturned Johnson&rsquos supposedly more statesmanlike white supremacist Reconstruction policies. The cardinal error was granting suffrage to black men, said to be by their nature incapable of exercising democratic rights intelligently. This interpretation formed part of the intellectual legitimation of the Jim Crow South, which in the late 19th century began abrogating the rights blacks had gained during Reconstruction. The supposed horrors of Reconstruction offered a stark warning of what would happen if Southern blacks were able to exercise their right to vote. But after the civil rights revolution (sometimes called the Second Reconstruction), a wholesale shift in historical outlook took place. Today, Reconstruction is seen as a noble effort to create the foundation of racial justice in the aftermath of slavery. The tragedy is not that it was attempted, but that it failed.
Johnson&rsquos reputation has fluctuated along with historians&rsquo views of Reconstruction. Long celebrated as a heroic defender of the constitution against the Radicals, he is today a leading contender for worst president in American history, condemned both for his utter inability to work with Congress and his intense racism. It is difficult to think of a president who voiced his prejudices in starker language. Johnson told one reporter that under the Reconstruction Acts the white population of the South would be &lsquotrodden under foot to protect niggers&rsquo. In his annual message to Congress of 1867, he declared that blacks had &lsquoshown less capacity for government than any other race of people&rsquo. They had never produced any civilisation and when left to themselves relapsed into &lsquobarbarism&rsquo.
Wineapple fully shares current historians&rsquo disdain for Johnson and sympathy for the Radical Republicans, especially their leader in the House of Representatives, Thaddeus Stevens of Pennsylvania. Born with a club foot, Stevens was depicted by earlier historians as &lsquothe crippled, fanatical personification&rsquo, in John F. Kennedy&rsquos words, &lsquoof the extremes of the Radical Republican movement&rsquo. Today, he is admired for his fierce commitment to racial equality, which long preceded the Civil War. As a delegate to the 1837 Pennsylvania constitutional convention, Stevens refused to sign the final document because it stripped the state&rsquos free black community of voting rights. During Reconstruction, he advocated confiscating the land of Confederate planters and distributing it to the emancipated slaves. Stevens fully grasped the gravity of the moment, with its rare opportunity to remake American institutions. &lsquoIf we fail in this great duty now, when we have the power,&rsquo he proclaimed, &lsquowe shall deserve and receive the execration of history.&rsquo
Wineapple&rsquos other books include lives of Nathaniel Hawthorne, Gertrude Stein and her brother Leo, and a study of the relationship between Emily Dickinson and the abolitionist Thomas Wentworth Higginson. The Impeachers is structured around brief, insightful sketches of the key actors in the titanic struggle over Reconstruction. It begins with the 43 &lsquodramatis personae&rsquo, including high officials in the administration and Congress, journalists, and lawyers for and against the president. Mini-biographies of these and other figures are scattered through the text.
Very few of them are household names today and Wineapple deserves praise for raising them from obscurity. Yet, perhaps inevitably, her sketches focus on those who occupied prominent positions in Washington. Only two of the 43 are black &ndash Frederick Douglass and the restaurateur and political activist George T. Downing. This is a problem, as Reconstruction was a national crisis, not one restricted to the capital. Current scholarship emphasises that grassroots black activism, including public meetings and mass demonstrations throughout the South in favour of equal rights, helped to shape the political agenda and set the stage for Johnson&rsquos impeachment. Yet blacks play almost no role in Wineapple&rsquos narrative.
By 1867, most Republicans in Congress had concluded that Johnson was intransigent, incompetent and racist, and doing all he could to obstruct the implementation of Reconstruction policy. But a majority remained convinced that a clear violation of the law was required for impeachment, and the House rejected a number of efforts to move towards it without one.
The events that finally overcame their doubts arose from a peculiarity of the Reconstruction programme Congress enacted in 1867. The South had been placed temporarily under the control of military commanders, to oversee the registration of black voters and the establishment of new state governments. But the president is commander-in-chief of the military, and Johnson used this power to relieve of command any military officials who worked too diligently to register black voters. To protect the secretary of war, Edwin M. Stanton, the leading Radical in the cabinet, from the risk of being removed, Congress enacted the Tenure of Office Act, mandating that cabinet members remain in office for the term of the president who appointed them, unless the Senate approved their replacement. When Congress was out of session, taking advantage of a provision that allowed appointees to be temporarily replaced, Johnson suspended Stanton, in the autumn of 1867. The following January, the Senate, having reassembled, overruled this action. Johnson then fired Stanton and replaced him with the weak-willed General Lorenzo Thomas, whom he assumed would do his bidding. In response, the House voted overwhelmingly to impeach the president.
The trial took place in May 1868. Wineapple&rsquos account of it fully displays her talents as a storyteller: she keeps the suspense alive to the very last Senate vote. She also illuminates the complex motives in play. The chief justice who presided, Salmon P. Chase, was hoping to capture a nomination for president &ndash from either party it made no difference to him. (There was an election due in November.) Many Republicans who would ordinarily have been happy to be rid of Johnson hesitated because he would be succeeded by Senator Benjamin F. Wade of Ohio, the president pro tem of the Senate. Wade, among other things, favoured votes for women and the issuance of paper currency to stimulate the economy, both anathema to many Republicans. In 1867 he had delivered a speech declaring that with the battle between slavery and freedom decided, the next fight would pit labour against capital. (Marx quoted Wade in the first volume of Capital, published that year, to illustrate the growing awareness of the class struggle.) Some Republicans felt that a few more months of Johnson would be preferable to Wade assuming the presidency, being re-elected, and serving four years.
Wineapple points out that the House-appointed impeachment managers and the president&rsquos attorneys seemed to swap strategies as the trial went on. All but two of the 11 articles of impeachment approved by the House dealt with the removal of Stanton (the last two accused Johnson of abuse of power and disgracing the office of president through vituperative speeches). The managers, who were expected to focus on the big picture of Johnson&rsquos failed Reconstruction policy and the political crisis over black rights, instead spent most of their time on his violation of the Tenure of Office Act, seemingly accepting the idea that only a criminal offence, not political malfeasance, justified conviction. The defence seemed unable to decide whether to admit that Johnson had violated the Tenure of Office Act. They argued both that he dismissed Stanton in order to test the act&rsquos constitutionality, and that it did not apply to him anyway, as Stanton had originally been appointed by Lincoln. Mainly, rather than sticking to narrow legal arguments, as expected, they emphasised the broader claim that conviction would upset the constitutional balance between Congress and the presidency. In the end, the Senate failed by a single vote to muster the two-thirds necessary for conviction. Seven Republicans supported the president. Johnson remained in office until 1869, when Ulysses S. Grant moved into the White House after winning the Republican nomination during Johnson&rsquos impeachment trial and then the election in November 1868. In a somewhat surreal postscript to his presidency, Johnson reappeared in Washington in 1875 as a senator from Tennessee. He died from a stroke after serving for five months. Characteristically, he used his brief term to castigate Grant as a military dictator.
R econstruction ended in 1877, when the last Southern state fell under the control of white supremacist Democrats. As time went on, the impeachment of Andrew Johnson was all but forgotten, or recalled simply as a bizarre episode. In the 1950s it enjoyed a brief resurgence in public consciousness when John F. Kennedy, then the junior senator from Massachusetts, included a chapter on Edmund G. Ross, one of the seven Republicans who voted to acquit Johnson, in his book Profiles in Courage. Most of the volume was drafted by Kennedy&rsquos speechwriter Theodore Sorensen and edited by the historian Allan Nevins. This did not stop Kennedy being awarded the 1957 Pulitzer Prize for biography, doubtless the only author to receive the honour who contributed next to nothing to the actual text.
The chapter on Ross in Profiles in Courage repeated many of the myths about Reconstruction then prevalent in historical scholarship. Among other things, it claimed that no state &lsquosuffered more&rsquo during Reconstruction than Mississippi under Adelbert Ames, a Union army general who owed his election as governor to the state&rsquos black voters. Kennedy didn&rsquot know it but Ames&rsquos daughter, Blanche Ames Ames &ndash an artist and women&rsquos rights activist who married a man with the same surname &ndash was still alive. She bombarded Kennedy with demands to revise the disparaging treatment of her father. Her grandson was the writer, actor and man about town George Plimpton. At a White House dinner, the president pulled an astonished Plimpton aside with the words: &lsquoGeorge, I&rsquod like to talk to you about your grandmother.&rsquo He implored Plimpton to persuade Ames Ames to stop besieging him with letters about her father. Kennedy never revised Profiles in Courage, but he did change his mind about Reconstruction. In 1962, when two people were killed during rioting at the University of Mississippi after the enrolment of James Meredith as its first black student, Kennedy remarked: &lsquoIt makes me wonder whether everything I heard about the evils of Reconstruction is really true.&rsquo Southern resistance to integration, he added, gave him a new appreciation of Thaddeus Stevens.
Senator Ross&rsquos reputation, like Johnson&rsquos, has fallen precipitously. According to Wineapple, he distinguished himself in the Senate only by the way he parlayed his vote for acquittal into government jobs for his cronies. Less than two weeks after the trial ended, Ross requested that Johnson install a friend in the lucrative position of Southern superintendent of Indian affairs. There followed numerous other patronage appointments, including his brother as a special mail agent in Florida, a political ally as an internal revenue commissioner, and a friend as surveyor general of Kansas.
D onald Trump does not appear in The Impeachers. As Wineapple explained at a book launch at the City University of New York, she became interested in Johnson&rsquos impeachment long before the current president arrived on the political scene. Yet in some ways Trump is a lineal descendant of Andrew Johnson. Johnson repeatedly referred to his approach to Reconstruction as &lsquoMy Policy&rsquo, as if no one else was involved in its inception or implementation. Trump insists &lsquoI alone&rsquo can solve the nation&rsquos problems. Johnson&rsquos speeches during the &lsquoSwing around the Circle&rsquo, Wineapple writes, contained &lsquoa startling chain of venomous epithets&rsquo for his enemies the same can be said of Trump in his campaign rallies and Twitter posts. Most important, Johnson was a pioneer of the white nationalist politics today exemplified by Trump. Johnson&rsquos comment that blacks have never produced civilisation has its counterpart in Trump&rsquos description of African nations as &lsquoshit-hole countries&rsquo. In the repeated claim that Barack Obama was born outside the United States, which first made Trump a national political figure, there is an echo of Johnson&rsquos rejection of black citizenship. More than a century and a half since his impeachment, the ghost of Andrew Johnson still haunts our discussions of race.
Why Was Andrew Johnson Impeached?
There are a lot of presidential firsts out there. Some are rather charming, like the first president to enjoy electricity in the White House (Benjamin Harrison, who was scared to touch the light switch) and the first to ride in a car (William McKinley). Then there are the not-so-quaint trendsetters, like Andrew Johnson—the first to be impeached.
Johnson ascended to the presidency after Abraham Lincoln was assassinated in 1865. A former senator from Tennessee, he was in favor of going easy on the states that had seceded from the Union during the Civil War. Johnson gave almost total amnesty to former Confederates, supported bringing the seceded states back to the Union quickly and easily, and approved local Southern governments that passed harshly restrictive "Black Codes." Though it may seem like Johnson was favoring the Southern states due to his own heritage, in reality, he was largely following Lincoln’s plans.
In addition to being unhappy with this Reconstruction program, the “Radical Republican” majority in Congress—who were devoted to ensuring the rights of freed slaves—worried that Johnson would replace Lincoln’s cabinet with officials who would support his views. To prevent this, they passed the Tenure of Office Act, which prevented the president from firing Senate-confirmed officials without Senate approval. (The president could suspend a cabinet member while the Senate was in recess, but when the Senate reconvened, they had to sanction the removal. If they didn’t, the cabinet member was reinstated.)
Believing the Tenure of Office Act to be unconstitutional, Johnson started testing the waters. In 1867, while Congress was out of session, he suspended Lincoln’s Secretary of War, Edwin Stanton (the only Cabinet member to support the Radical Republicans). Johnson appointed Ulysses S. Grant as interim replacement—a choice he thought would appease everyone. He was wrong. The Senate didn’t sanction Stanton’s removal, returning him to the position of Secretary of War. In retaliation, Johnson formally removed Stanton and replaced him again, this time with Adjutant-General Lorenzo Thomas.
As you might suspect, this didn’t fly. Stanton refused to go, actually barricading himself in his office. On February 24, 1868, Congress initiated Johnson's impeachment process in the House, citing the president’s blatant disregard for the Tenure of Office Act, among other things. But removing a president from office requires several steps: a formal accusation from the House (the impeachment) followed by a trial and conviction from the Senate. In the end, Johnson escaped by the skin of his teeth: One more vote in the Senate and he would have been ousted.
Even though he made it through the trial, Johnson found himself booted from the White House in the months to come anyway—an unpopular incumbent, he didn’t even win the Democratic party’s nomination that year (although he had been elected with Lincoln on the National Union ticket, Johnson sought reelection as a Democrat). Instead, the Democrats nominated former governor of New York Horatio Seymour, who lost to Republican Ulysses S. Grant in the general election by a landslide.
History is actually on Johnson’s side, at least in one sense. The Tenure of Office Act was soon repealed, and ruling on a related case in 1926, the Supreme Court declared that the Tenure of Office Act was unconstitutional—just like Johnson claimed.