As lobbyist Sam Ward had recommended, the defense team reflected political balance as well as legal acumen. Former Justice Curtis and Stanberry were Republicans. Jeremiah Black was a Democrat. Two more Democrats were signed up: William Groesbeck of Ohio and Thomas Nelson of Tennessee, a familiar face from the president’s home state. The last lawyer to join the team, Republican William Evarts of New York, would prove the most important one, even though there was disagreement over whether to add him at all.
The defenders faced formidable challenges. In a very short time, they had to master the legal arguments surrounding impeachment and to anticipate the prosecution’s factual presentation. Fortunately for them, the managers announced most of their strategies through the newspapers, so there would be few surprises at trial. The president’s lawyers also needed to get control over their client. Johnson could damage his own case more than anyone else could. Every public statement and action posed risks, and the headstrong Johnson had a long track record of unwise public utterances. For a defense lawyer, few terrors rival those posed by a client who likes to swap stories with newspaper reporters into the night.
Sure enough, on the evening of March 9 the president unburdened himself to a favored reporter from the Democratic New York World. Insisting that he was unfazed by the impeachment effort and labeling Stanton “a marplot in this administration,” Johnson unveiled a detailed defense that included precedents from the days of John Adams. He noted bitterly that he was facing trial in the Senate, but former Confederate President Jefferson Davis still had not been tried for treason. On the very next day, Stanberry made his first demand on his client. The newspaper interviews had to stop. Those conversations, the lawyer insisted, “injure your case and embarrass your counsel.” Taken aback, Johnson attempted an apology. No one in the room supported him. All had gnashed their teeth over the president’s nocturnal conversations with the press. One Cabinet member called them “unaccountable and inexcusable.”
The first defense chore was to draft an answer to the impeachment articles. Jeremiah Black was in the middle of a week-long argument before the Supreme Court, while Stanberry was still attorney general. With the other defenders en route to Washington, the job fell to Curtis. Writing alone in his room at Willard’s Hotel, the former Supreme Court justice felt the burden of his responsibility. He sought help from his brother, a legal scholar (George Ticknor Curtis). Buoyed by his impressions of the president’s “calm, honest sincerity,” Curtis finished in time. Though long and weighed down with every technical defense the Curtis brothers could contrive, the thrust of the president’s case remained clear: Stanton was not protected by the Tenure of Office Act; the president had constitutional power to remove him regardless of that statute; and Johnson had no intent to violate the law but had wished only to elicit a judicial decision of the legal questions involved.
Stanberry was eager for battle. On March 16, he announced to Johnson that he was “in regular training, like a prize-fighter,” including twice-a-day rubdowns. “Don’t lose a moment’s sleep,” he advised the president. “You will come out of it brighter than you have ever shone.” The lawyer added that if he could stay healthy for the trial, “I will be willing to be sick during the balance of my life.” Stanberry had no idea, of course, that he would soon fall seriously ill.
The White House library was set aside for the lawyers. Johnson met with them for hours on end. As a client, he was a handful. He declared one day that unless the defense was conducted as he wished, he would present it himself. Nine days later, he repeated the threat. The lawyers, Colonel Moore noted laconically in his diary, “were unanimous in the opinion that he should not attend [the Senate] in person.” Dissatisfied with the draft answer to Stevens’s Article XI, Johnson prepared a package of materials to explain how to challenge it. Johnson’s focus on impeachment curtailed his time for public business. In Cabinet meetings, he seemed uncertain, anxious, and distracted.
As the trial date neared, the president’s agitation subsided. He became “quite philosophic,” according to one aide. “I think he believed firmly he would be convicted, that nothing could avert his expulsion, and he submitted calmly as to a decree of fate.” Johnson turned aside an embarrassing demand from Jeremiah Black, the Democratic lawyer. In a crude attempt to take advantage of his position as the president’s defender, Black sought help for clients involved in a contest over guano deposits on the Caribbean island of Alta Vela. He asked that an American warship be sent to support his clients. Without such intervention, the lawyer insisted, he could not handle the impeachment trial. Johnson bade Black farewell, telling Colonel Moore that the lawyer had “made a pretty record—one which will do him far more injury than it can me.”
The remaining defense lawyers dug into their case with enthusiasm and mutual respect. Their task may have been eased when a recurrence of kidney stones sidelined the president in the last week of March.
To mount the first presidential impeachment trial, the senators had to address many practical issues, starting with the physical arrangements in their chamber. They set up tables at the front of the room for the House managers and the president’s counsel, adding two hundred cane-seat chairs in the rear for visiting congressmen. Seven telegraph wires were installed to ensure speedy transmission of press reports to a waiting nation. The Senate resolved to issue tickets for admission to its galleries. Each senator received six tickets for each trial day, with smaller numbers going to other officials. One consequence of the ticket system was to exclude blacks, who had avidly watched the impeachment in the House but lacked the connections necessary to acquire Senate tickets. This limitation was unmistakable when the Senate first convened as a court in mid-March: the House members marched from the House to the Senate, two abreast, through the Capitol rotunda, between “two dense lines of blacks, forming a corridor from door to door.” The blacks in the rotunda lacked tickets to enter the Senate.
Impeachment trial ticket.
A more difficult problem arose when Chief Justice Chase entered the Senate on March 4 to administer to each senator the oath required by the Constitution. When Ben Wade of Ohio rose to take the oath, an Indiana Democrat objected. Because a conviction would vault Wade into the White House, he said, the Senate president pro tem should be disqualified from voting on the impeachment articles. After all, his powerful self-interest would disqualify him from sitting on a jury if the trial were held in court.
The Senate plunged into a three-hour debate on the objection. Angry Republicans insisted that the people of Ohio were entitled to have both of their senators vote on the impeachment. They added that Wade had no greater interest in the trial than did Senator David Patterson of Tennessee, a Democrat married to the president’s daughter. The comparison to standards for jurors, they insisted, was irrelevant. As public officials, senators might have made public statements that would disqualify them from a court jury (as indeed many had). The Senate was a political body and its members could not be disqualified on political grounds. The debate blew itself out the next day and Wade took the oath, but discord on the question continued in the press and in Washington lobbies for the next seven weeks.
Equally challenging was how to frame Chief Justice Chase’s role at the trial. The Constitution directs that the chief justice shall preside over a presidential impeachment trial, but offers no further enlightenment on the subject. What were his powers? Could he admit or exclude evidence, as a judge would in court? The Senate ordinarily governs itself and Chase was a stranger there. What if there were a tie vote on a procedural point? When the vice president presides over the Senate on nonimpeachment matters, he casts tie-breaking votes. Could the chief justice exercise the same power?
Chase took an expansive view of his authority. The Senate did not. When the chief justice addressed questions of procedure in an early letter, he triggered a violent reaction. The reaction was amplified because many senators had political reasons for not trusting him.
Beginning in the 1830s, the tal
l, handsome Chase won a national reputation as an abolitionist lawyer in Ohio, earning the epithet “Attorney General of fugitive slaves.” After serving as senator and governor of his home state, he sought the Republican nomination for president in 1860. When Lincoln won the presidency, Chase agreed to serve as secretary of the treasury. His financial creativity helped keep Union armies in the field. His unquenchable ambition led him to place his own image on every dollar bill printed by his department, transforming the money supply into political handbills. In December 1864, Lincoln made him chief justice.
This unbroken progression through public office masked Chase’s limitations. The chief justice’s self-importance wore out many supporters. A nonsmoking teetotaler who rarely laughed, Chase had a short supply of charm. His poor eyesight could make him seem rude. Too vain to wear eyeglasses in public, he often failed to recognize friends at events. Many respected him. Few liked him. As one friend wrote, Chase was “born an old man” and was ignorant of human nature. A particular enemy was Ben Wade, the man who would be president if Johnson was convicted. Chase’s “theology is unsound,” Wade once said. “He thinks there is a fourth person in the Trinity.”
Chase desperately wanted to be president. Indeed, he held the dangerous opinion that he deserved to be president. Chase’s undisguised lunge for the Republican nomination in 1864 persuaded Lincoln to accept his resignation from the Cabinet in July of that year. (Chase had been a serial resigner, sending several earlier withdrawal letters that Lincoln did not accept.) After becoming chief justice, no sense of judicial propriety restrained his ambition. He offered political advice to President Johnson and corresponded freely with operatives about his own prospects for the presidential nomination in 1868. Chase was not fussy about which party elected him president. During the trial, his agents worked to elect Chase delegates to the Republican Convention scheduled for the third week of May. With Grant the prohibitive favorite for that party’s nomination, Chase hedged his bets, flirting with Democratic leaders, too. A Republican contemporary captured the general disillusion with Chase:
Chief Justice Salmon P. Chase.
He has an unhappy way of too plainly exhibiting his presidential aspirations, so that those who really mean well by him are denied the privilege of warming up to him…. His position of chief justice, which to another would be the fulfillment of highest ambition, merely makes him a martyr. The presidential fever is a deadly malady.
Because of his hostility to Wade and his own aspirations, Chase would never appear to be the impartial judge that the occasion demanded. As early as October of 1867, Chase had urged congressmen and senators to oppose impeachment. Every decision he made would be analyzed for political motivation and impact. Republican senators, convinced that Chase would tilt the scales to favor the president, resolved to keep him on the shortest possible leash.
Chase took the podium on March 13 to begin the pretrial phase of the impeachment. The month’s most lurid rumors had proved false. A teacher of Johnson’s granddaughter had reported that the family would leave soon for Tennessee. It was not true; the president would not resign. And Thaddeus Stevens, contrary to persistent gossip, still was not dead.
The trial carried powerful cachet in Washington society, with women making up two-thirds of the gallery that day. Stanton’s mother-in-law was there, along with Senator Trumbull’s mother and Kate Chase, the chief justice’s glamorous daughter (wife of Senator William Sprague of Rhode Island). Washingtonians snapped up books recounting earlier impeachment trials in Britain and America. “People who never could be brought to comprehend the simple process of habeas corpus,” one account wrote, “now talk learnedly upon the nice points of law involved in a trial of impeachment.”
The peaceful attempt to remove the American head of state commanded international attention. Baron Gerolt, Prussia’s envoy, sat in the Senate gallery with Baron Wetterstadt of Sweden and Norway, Mr. Rangabee of Greece, Señor Sarmiento from Argentina, and representatives of France, Denmark, Russia, and Spain.
The newspapers reported breathlessly on the proceedings. Lawyers were graded on appearance: Bingham, resembling a frenzied poet or fanatic preacher, was decreed less untidy than usual, but “never looks well shaved”; Butler preened in a swallowtail coat with an extra exposure of linen; Logan glowered dark and handsome behind heavy mustaches, while Stevens, with a face of dried parchment and features of marble, was “the very embodiment of fanaticism, without a solitary leaven of justice or mercy.” Speaking styles were scored, too. A tall, commanding figure, Stanberry had a “peculiar sliding manner of delivery,” while Bingham seemed “a first class spouter from the country.” Evarts, small and neat, employed a sweet tenor that pleased the ear. Curtis was barely audible. Details were noted reverently. During a recess, Stevens polished off a plate of oysters while Stanberry leaned his head on his hand.
The president’s lawyers asked for more time to answer the articles, as defense lawyers have done since the beginning of contested proceedings. In response, John Bingham demanded that their answer be filed immediately, stressing an important point for the managers—that the senators “are a rule and a law to themselves.” The president was given ten more days. To show how eager they were to proceed, the House managers filed their reply one day after the president’s answer arrived. Another defense request for delay drove Manager Logan to cry out in frustration. Johnson, he warned, retained the power to trample the laws and the Constitution; justice must be swift! The Republican senators agreed. They set the trial’s opening day for March 30.
INFLUENCE AND EDMUND COOPER
MARCH 1868
I told him, I thought if he had the nerve we could make $25,000, or $50,000 out of these fellows…. I had become satisfied there was a good deal of money floating around or being gathered up…. I concluded I would see if I could not get hold of some money.
POSTAL AGENT JAMES LEGATE, MAY 22, 1868
FROM THE FIRST, a favorite pastime of the impeachment season was “counting to seven.” With nine Democrats and three Johnson Republicans bound to vote for the president, which seven Republican senators might save Johnson from conviction by a two-thirds majority? While the lawyers planned to sway the senators with persuasive presentations, practical men focused on other means of influence. All of the political arts—from appeals to party solidarity to threats of retribution, from pledges of patronage jobs to negotiations over cash bribes—would be on display from March to the end of May.
Potential Republican defectors were identified early and the list was refined daily. Even before the House adopted impeachment articles, one Radical newspaper counted six Republican senators who might support the president. A week later, the same newspaper predicted that Kansas Senator Edmund Ross was lost, along with Fessenden of Maine and Sprague of Rhode Island. The mistrust of Sprague arose largely because Chief Justice Chase was his father-in-law. Many doubted Fessenden because he so disliked Ben Wade. A Baltimore paper reported that six Republicans would vote to acquit, while eight more were on the fence. Newspapers across the country repeated the report.
Attention focused early on Republican Senator Joseph Fowler of Tennessee, who had stood with Johnson during the secession crisis of 1860 and throughout the war. By January 1868, having soured on Johnson’s Reconstruction policies, Fowler called for Johnson’s impeachment. Once impeachment proceedings began in the Senate, though, he began to sit with the Democrats, winning a place on the list of the “doubtful.”
Both sides used every political tool at hand. The impeachers, who needed only to maintain party discipline in order to convict the president, combined demands for party loyalty with warnings of dire consequences for those who strayed from the Republican fold. Promises of positions in a Ben Wade Administration filled the air. Ben Butler developed a network of agents and spies to keep track of the doubtfuls. Butler wanted to know who those senators spent time with and what they were saying.
The president’s friends—both in and out of office—organized themse
lves to support his cause with patronage jobs and even bribes. These tools were familiar to experienced traffickers in influence like New York Collector Henry Smythe, Indian trader Perry Fuller of Kansas, and Sam Ward, King of the Lobby. But someone had to coordinate those efforts, to make sure that the correct inducements were offered to the correct senators, and also that they were offered only once to each. No reason to pay twice. The president’s team marshaled at least three separate efforts to offer cash to senators in return for votes for acquittal. All three ran through the hands of Edmund Cooper of Tennessee.
Cooper was the type of upper-class Southerner that Andrew Johnson often resented. Born into a wealthy cotton-trading family in middle Tennessee, Cooper attended Harvard Law School. Family connections (the Coopers were close to President James Polk) smoothed Edmund’s way. Contemporaries celebrated Cooper’s polish. One gushed over his “good breeding, gentlemanly instincts, and sense of honor,” calling him a “talented, artful man.” Andrew Johnson enjoyed none of these advantages. He came from a very different Tennessee.
Yet Cooper stuck by the Union in 1861 when two of his brothers joined the Confederates. Despite a period of detention by Southern forces, Cooper became private secretary and “confidential agent” for the military governor of Tennessee, Andrew Johnson, who was thirteen years his senior. Through their shared experience of danger and public service in wartime, the two men formed a strong bond.
Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy Page 20