The pressure to add articles grew stronger. The list reached six, then eight. They would not include any charges from the November impeachment report that the House had rejected. Reviving those claims, the New York Times reported, was deemed “fatal to the moral and legal effect of the prosecution.”
Johnson had one last ploy for avoiding impeachment: He hoped to take the starch out of the Republicans by submitting key legal issues to the courts, starting with the constitutionality of the Tenure of Office Act and whether he had the constitutional power to remove Stanton. Shouldn’t the Supreme Court, rather than the partisan Senate, decide those issues?
The press filled with predictions that the attorney general would file a lawsuit raising those questions, but the problem with this strategy was time. A lawsuit would take too long. It would start before a single district court judge in Washington City, followed by an appeal to the full district court, which could not act until May. That court’s decision would not be reviewed by the Supreme Court until December. No one thought the proceedings could be expedited, which meant that no decision could issue until after the presidential election, a few months before Johnson’s term of office expired. The Senate impeachment trial would end long before then.
Johnson’s team figured out a shortcut, one that could take advantage of Stanton’s lawsuit against Thomas. If Judge Cartter kept the adjutant general on bail, or under any form of restraint, Thomas could demand a writ of habeas corpus directly from the Supreme Court. Then the eight justices—at least five of whom were reckoned favorable to the president—could decide the constitutionality of the Tenure of Office Act. With luck, that decision would come before a Senate trial ended.
Edwin Stanton, barricaded in the War Office, performed the same legal analysis. Though Stanton doubtless had enjoyed the spectacle of Thomas under arrest, the war secretary was not sentimental about legal strategies. If prosecuting Thomas could thwart impeachment, he would abandon the case.
Thomas appeared in Judge Cartter’s chambers at 10 A.M. on Wednesday, February 26. When his lawyer asked for a writ of habeas corpus, Stanton’s lawyer moved to drop the prosecution. After all, he explained, the adjutant general no longer threatened to take the War Department by force. The ploy forced Thomas’s counsel to insist that the prosecutor must proceed against his client, an awkward argument for any defense lawyer. The judge had no trouble dismissing the matter. When Thomas called for his mail at the War Department a day later, he complained he had been “euchred…again.”
Thomas’s days took on a depressing routine. He presented himself to the president in the morning. If Johnson was feeling combative, he directed Thomas to demand control of the War Department. The adjutant general would trudge over to Stanton’s office, make the demand, be denied, report his failure to the White House, and return home. If the president felt less aggressive or was involved in other business, Thomas was allowed to call quietly at the War Department for his mail and then head home. Sometimes he stopped to confer with his lawyers. As the Radical Philadelphia Press wrote with glee, he “receives for this arduous duty the salary of a brigadier general.” Stanton had locked the adjutant general’s office at the War Department, denying Thomas the key until he agreed to perform that job, and that job only. Thomas, Johnson’s pawn in the game, could not accept those terms.
Thomas sued Stanton for wrongfully denying his right to be interim war secretary, demanding $150,000 in damages. The case was destined for that limbo where insincere lawsuits drift. Johnson could not shift into the courts the fight for his political life. The battle would be in the Senate, on impeachment articles approved by the House of Representatives.
When George Boutwell of Massachusetts rose in the House on Leap Day—Saturday, February 29—the novelty of impeachment was wearing off, but the thrill remained. Once more, the galleries overflowed with fascinated citizens of both races and both sexes. Again, the House of Representatives was poised to do something for the first time in history: it would debate what specific charges should be lodged against a president it already had impeached.
Boutwell presented ten articles of impeachment. As the clerk read them aloud, confusion spread. The articles were a jumbled horror. Having failed a few months before with broad and amorphous impeachment allegations, the impeachers had careened to the other extreme, keeping their focus painfully narrow and obscurely legalistic.
The first nine articles addressed only the Thomas-Stanton confrontation, dissecting it into overlapping allegations of “high misdemeanors” and “high crimes.” The House would not deploy impeachment as a political remedy, but would pursue it as an ersatz criminal prosecution. As The Nation observed, Johnson was impeached because he had finally “committed a distinct and palpable violation of the law,” though the offense of firing Stanton was not “by any means the worst in a moral point of view.”
This strategy raised problems. Shrinking the scope of the articles seemed to cheapen the enterprise. The impeachers were reduced to charging the “great criminal of the age”—the man who betrayed the sacrifice of Union soldiers while abandoning the freed slaves to lives of want and oppression—with misapplying a personnel statute. To make these small-gauged articles seem proportionate to Johnson’s enormous crimes, the impeachers charged his misstep as nine separate violations that grew more mystifying as they multiplied. The strategy was unnecessarily complex. It would take only one successful impeachment article to remove the president. Having many overlapping allegations would do the prosecution no good.
The first article charged Johnson with violating the Tenure of Office Act when he dismissed Stanton; the second alleged that he violated the same law by appointing Thomas as interim war secretary. Those two articles might seem redundant—mirror images of the same violation—but at least they could readily be understood. The real trouble started with the third article, which charged Johnson with unconstitutionally appointing Thomas to a position that was not vacant. Only unadorned hairsplitting could distinguish this allegation from the one before it.
Serious incoherence set in with the next five charges, all alleging conspiracy between Thomas and Johnson. Article IV alleged that Johnson violated the federal conspiracy law when he agreed with Thomas to drive Stanton from office, while Article V charged that the same conspirators attempted to use force to the same end, in violation of the Tenure of Office Act. The sixth stated that the same conspiracy violated both statutes; Article VII alleged a conspiracy to violate the Tenure of Office Act without using force. Citizens in the House galleries had to be scratching their heads.
The eighth article repeated the conspiracy motif, this time charging that Johnson and Thomas conspired to seize the property of the War Department. Article IX charged the president with firing Stanton for the purpose of gaining control over War Department funds. The modern mind paces nervously around these last two articles. Isn’t the president supposed to have control over government property and funds?
Happily for those in attendance, the final article was on a different subject; unhappily for the impeachers, it had no foundation. Article IX concerned President Johnson’s meeting with General Emory on February 22, just the week before, during which he asked about the disposition of federal troops in Washington City. The article charged Johnson with instructing Emory that the Constitution invalidated the statute requiring all army orders to pass through General Grant. That Emory’s testimony would not directly support the allegation, and that the president might be entitled to state his opinion on the subject, had not deterred the impeachers.
Boutwell betrayed no embarrassment over these unfortunate impeachment articles, which one Senate aide thought “savor of the attorney too much.” Modestly, Boutwell invited the House to revise or replace the articles as it saw fit: “We have no special attachment,” he said, “to the particular words and phrases employed.” They had little enough reason for such attachment.
The House debate was scheduled for all day Saturday and the following Monday. Seeing the
impeachment articles for the first time that afternoon, several congressmen urged the House to slow down. Radical Republicans bemoaned the narrowness of the articles, which addressed only two episodes of Johnson’s many misdeeds. They ached to charge the president with his real crimes, all of them. A Democrat denounced the charges as trifling, while another observed that “ten articles have been presented, or rather ten specifications of one article.”
Another theatrical moment arose when Stevens closed debate on Monday, March 2. His words were bitter. Increasingly gaunt and pale, he began to read his speech from a seat facing the House. “Never,” he began, his voice weak, “was a great malefactor so gently treated as Andrew Johnson.” The House began to fall silent. Congressmen again strained to hear the words. This time strength came to the Pennsylvanian. He kept speaking. He complained that the committee, “determined to deal gently with the President,” had omitted many crimes from the impeachment articles. The articles covered, he lamented, only “the most trifling crimes and misdemeanors.”
Years began to fall away as the old man justified each article in turn. Stevens stood up. He began to gesture and his voice reached the gallery. Though trifling, he said, the articles should be approved so the nation could finally be rid of this pestilence in the White House. “Unfortunate man!” Stevens said to the rapt chamber, “thus surrounded, hampered, tangled in the meshes of his own wickedness—unfortunate, unhappy man, behold your doom.”
Boutwell brought forward revised impeachment articles, which now numbered only nine, one of the conspiracy articles having been blessedly dropped. The House rejected motions to add articles. Ben Butler of Massachusetts presented a lengthy new charge. After reciting several of the president’s stump speeches denouncing Congress, Butler’s article accused him of the high misdemeanor of bringing the presidency “into contempt, ridicule, and disgrace.” Here was a political offense pure and simple. Butler argued that his article tracked one presented against Supreme Court Justice Samuel Chase more than sixty years earlier (one that was rejected by the Senate). Butler’s proposal was defeated—for the time being. The House then approved by overwhelming margins each of the nine articles proposed by the committee.
Stevens, closing debate on impeachment, March 2, 1868.
The House turned to designating those members who would act as prosecutors during the Senate trial, preparing the case and presenting the evidence. They would be the public face of the impeachment effort, standing in the Senate chamber and demanding the conviction of Andrew Johnson. The Republican caucus had designated seven “managers,” beginning with Boutwell (a leading Radical) and Bingham and Wilson (leading moderates). In a poignant turn, the caucus on its first ballot passed over Stevens. Many doubted he was strong enough to be an effective prosecutor. On a second ballot, those doubts yielded to respect for his relentless opposition to Johnson.
Three more Radicals were less obvious choices as managers. Dashing John Logan of Illinois commanded the Grand Army of the Republic, but was no great shakes as a lawyer. Thomas Williams of Pennsylvania was a respected lawyer, but was extreme in his hatred for the president. He had written the ineffective majority report for the impeachment resolution rejected by the House only ten weeks before.
And then there was Ben Butler of Massachusetts. Though he had served in Congress for less than a year, Butler would become the lead prosecutor. The New York Times explained that Butler was chosen as a House manager because of “his great ability and fertility of resource as a criminal lawyer.” The Chicago Tribune offered the jest that Butler “was one of the greatest criminal lawyers in the country, and Johnson the greatest criminal.” Few men in public life have overcome such memorably odd physical attributes. Touching lightly on Butler’s bald pate, drooping eyelid, and severe case of strabismus (cross-eyes), a Civil War officer left this description:
With his head set immediately on a stout shapeless body, his very squinting eyes, and a set of legs and arms that look as if made for somebody else, and hastily glued to him by mistake, [Butler] presents a combination of Victor Emanuel [King of Savoy], Aesop, [and] Richard III, which is very confusing to the mind.
One more crafty lawyer in a Congress that teemed with them, Butler had energy and intelligence that propelled him through a tumultuous public career. A lifelong Democrat, in 1860 Butler supported Jefferson Davis of Mississippi for president. He nimbly switched to the Union side when Southern guns fired on Fort Sumter. Securing a military command for which he had no qualifications, Butler became a Northern hero by welcoming escaped slaves into his camp. His army service mixed political triumphs with military failures. The popularity of “Old Cockeye” grew in the North when Southerners named him “Beast” for his heavy-handed occupation of New Orleans, then spiked again when he was christened “Spoons” for pilfering the silver from the Louisiana mansion where he made his headquarters. One war-derived nickname—“Bottled-Up Butler”—was less welcome, reflecting a military campaign during which his “bottled up” army was useless. According to the Massachusetts general, he declined Lincoln’s offer of second spot on the 1864 Republican ticket, the place that went to Andrew Johnson. Many, however, doubt the tale.
By the time Butler crashed into the House of Representatives in March of 1867, the former Democrat had become a full-fledged Radical Republican. One Republican was not surprised by the transformation, noting that “it never was General Butler’s habit to be moderate.” Thought by many to be the political heir to Stevens, Butler was already driving his finger into the eye of moderate John Bingham within three weeks of arriving in Congress. Observing Bingham standing on the Democratic side of the House, Butler declared the Ohioan had “got over to the other side not only in body, but in spirit.” Bingham, thin-skinned in the best of times, answered by denouncing Butler as a man “who recorded his vote more than fifty times for Jefferson Davis, the arch-traitor of this rebellion, as his candidate for President of the United States.” Then they took the gloves off.
Referring to one of Butler’s military failures, Bingham rejected with “scorn and contempt” the remarks of “the hero of Fort Fisher not taken, or Fort Fisher taken.” Butler replied that during the war “the only victim of [Bingham’s] prowess that I know of was an innocent woman hung upon the scaffold, one Mrs. Surratt” (one of the Booth conspirators). Drawing on the rich store of Butler nicknames, Bingham rejoined that the general’s accusations were “fit to come from one who lives in a bottle and is fed with a spoon.”
Remembering that and other encounters with Butler, John Bingham pitched a fit when the House Speaker announced the seven managers on March 2. Bingham was incensed to find his name in third position on the list, after Stevens and Butler. By reading the names in that order, the Speaker seemed to imply that Stevens would be chairman with Butler as his second. “I’ll be damned if I serve under Butler,” Bingham exploded. “It is no use to argue, gentlemen. I won’t do it.”
The House sidestepped Bingham’s flare-up by electing the managers without designating a chairman. The Ohioan was gratified to command the highest total vote, but was affronted anew when the managers themselves chose George Boutwell as their chairman. Intolerable! Bingham promptly announced his resignation as manager. To make peace, Boutwell declined the chairmanship in favor of the touchy prima donna from Ohio. Because Bingham led the moderate and conservative Republicans, the managers could not afford to lose him from the prosecution team.
The managers quickly approved two more impeachment articles, starting with Butler’s “stump-speech” article. The full House was restrained in its enthusiasm for that one, with eleven Republicans actually voting against it. No such diffidence applied to the final article. Adopted by a wide margin after no debate, Article XI would play a large role in the trial to come.
Proposed by Stevens and Wilson of Iowa, this last article was a clever mélange of complaints about the president: that he declared in 1866 that Congress represented only some of the states and had no power to propose amendments to th
e Constitution; that he had removed Stanton as war secretary in violation of the Tenure of Office Act; that he evaded the statute that required him to deliver military orders through General Grant; and that he thwarted the first Reconstruction Act. Article XI thus mixed a criminal offense (the Stanton question) with political ones. By lumping several theories together, it aimed to sweep up the votes of senators who accepted one or another of those theories, combining them all (the drafters hoped) into a two-thirds majority for conviction.
There was no precedent for such a “catch-all” impeachment article, which sharply tilts the odds against the impeached official. The accused cannot challenge allegations one at a time, but must confront several at once. In its one-sidedness, Article XI bears the handprint of Stevens’s unabashed drive to remove Johnson from office. Regrettably, it became a model for future impeachments, which similarly lumped a range of charges into single impeachment articles. The technique is designed to make it easier to vote for conviction. If satisfied that at least one of many allegations has been proved, a senator is justified in voting to convict. Even if there is no two-thirds majority on any single allegation, a catch-all impeachment article may bring conviction as some senators are persuaded by allegation “A,” others by allegation “B,” and so on.
To deliver the impeachment articles on Wednesday, March 4, the entire body of House Republicans marched in a sober column from their chamber, through the Capitol rotunda, and into the Senate. Leading the column, the seven managers gave no hint of their rocky relations with each other. Inside the Senate, Bingham and Boutwell led the procession, arm in arm, followed by Butler and Wilson, then Logan and Williams. Stevens came last, slowly passing down the Senate’s center aisle, no longer carried in his chair but with a friend supporting him on either side. Because of his still fierce visage, because his grip on life seemed so slight, because he remained the soul of the impeachment, the Pennsylvanian took central place in the tableau even without a speaking part.
Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy Page 18