Impeachment and the Case of Andrew Johnson
by Carlton Martz
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.
Impeachment 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
of government.
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.”
The Verdict
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.
