Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy

by David O. Stewart

  Even Democrats acknowledged that Butler had proved to be a quick-witted and tenacious advocate. Perhaps, on the whole, too tenacious. Many expressed surprise at the near-total eclipse of the other House managers. “Mr. Butler looms up as the one managing brain,” a correspondent observed, “while the unfortunate Mr. Bingham and Mr. Wilson are proportionately dwarfed.” Thad Stevens, who “uses stimulants [liquor] constantly, and is failing every day,” was declared “practically defunct.”

  Butler had been everywhere, doing everything. He gave the opening statement, questioned every witness, and argued most of the legal issues. In the mornings, before the Senate convened, he took informal statements from potential witnesses. These sessions explored the Treasury Department’s gold-trading practices and the president’s opposition to the Fourteenth Amendment. Butler fired off a letter complaining that Treasury workers were helping the defense by searching records through the night, an effort that was risking fire in the archives. His spies prowled the city. One rummaged through William Evarts’s wastebasket in his hotel room—a ploy Butler boasted about.

  Butler’s whirlwind of activity produced not very much. What facts, after all, had his twenty-three witnesses proved? That Lorenzo Thomas had acted foolishly and said foolish things? Few would have disputed that proposition before the trial began. In truth, Butler was banging through the evidentiary trees, moving from one to the next with panache, but without much sense of the forest. As he had promised, he performed as though he were trying a simple case of horse-stealing, according to judicial rules, but this was a presidential impeachment trial in the United States Senate. The verdict was going to be a political one. Well over two-thirds of the senators did not like Johnson and wished for an end to his presidency. Butler’s fine legal points were of no importance to the political calculations each Republican senator would make. The prosecution needed to give those senators reasons to vote the way their hearts told them they should—for conviction.

  Stevens’s Article XI offered a road map of such arguments: the president usurped congressional powers in 1865 when he created Southern state governments; he was undermining the Reconstruction laws. These were arguments with visceral appeal to Republican senators. Instead, Butler achieved only delay, frustrating his supporters in the Senate. It was a miscalculation that the managers would compound in the coming weeks.

  Butler participated in a very odd moment at a dinner the night after he closed his evidentiary case. It was a high-toned affair, including the British ambassador and House manager Boutwell. Also present was the urbane defense lawyer from New York, William Evarts, who had tormented Butler through much of the week. Mellow with good food and strong drink, Butler observed to his fellow gladiator that he rather wished he was on the opposite side of the trial, defending the president. Evarts matched Butler’s whimsical mood, suggesting that he, too, would happily change sides in the case.

  As Evarts’s remark implied, it was not all hearts and rainbows on the defense team. The major problem continued to be the client. Johnson’s feelings were raw, his temper short. He was beset by fears of all sizes, from the apocalyptic to the trivial. The times matched the biblical prophecy, he told Colonel Moore, “when the devil was to be let loose and would roam among the people.” He complained when his lawyers requested help from the White House staff, pointedly asking Colonel Moore why “some people” wanted others to do their work for them? The sight of a crew of blacks working on the White House grounds triggered an eruption. Johnson demanded to know whether any whites still worked on the White House staff. Moore despaired of his employer’s “morbid distress and feeling against the negroes.”

  The president’s anxiety would not go away. He compulsively reviewed with his aides the characters of various senators, predicting grim consequences that would befall certain of them if the impeachment succeeded. Johnson assigned an aide to prepare a summary of the ghastly fates suffered by the English judges who signed the death warrant of King Charles I of England in 1649. He seemed to take comfort in their hideous ends.

  Falling back on old habits, Johnson disobeyed his counsel and granted two interviews to a favored reporter. On the Sunday night before Butler’s opening address, the reporter found the president to be despondent. Four nights later, presidential spirits had revived. He was “not only confident, but combative.”

  The president used the occasions to offer his own testimony on the facts in the case, free from the awkwardness of being under oath or facing cross-examination. Notably, he savaged his own appointee as war secretary, then turned on his bête noire, General Grant.

  Lorenzo Thomas, Johnson told the reporter, “seems to be a queer old gentleman.” Twice the president implied that the adjutant general’s taste for liquor was the problem, describing Thomas as “refreshed” and “elated” over his appointment as interim secretary of war. “You know how it is with these military men,” he added, “how much style they like to put on, and how much fuss they like to make, and how they like to show their authority.” Johnson insisted he was not responsible for Thomas’s statements or actions “independent of my orders.”

  The discussion of inebriation led the interviewer to question Johnson’s own condition when he gave the extravagant speeches during the Swing Around the Circle in 1866, which were the basis for the tenth impeachment article. The president denied being drunk during those addresses, adding, “I didn’t drink half as much as one or two others, about whose condition nobody dares to say a word.” The reporter pressed Johnson. Was he referring to the person who had left the tour to go to Detroit (General Grant)? That was exactly who he meant, Johnson replied, adding that Grant “wasn’t in a condition to know much about politics just then.” Indeed, on occasion that same man had been in Johnson’s office “so drunk that he couldn’t stand.”

  In any event, Johnson continued, he could not be held responsible for anything he said during those speeches. He had answered hecklers in the crowds. “If I used any rough expressions,” he protested, “they were put into my mouth by my enemies.”

  When the interview was published, Johnson was chagrined, first saying it should not have been published. Then he blamed the reporter, claiming he had been misquoted. The presidential temper was stirred by another press report. The Radical New York Tribune stated that General Grant viewed the president’s conviction as “the only hope for the peace of the country.” Unless Johnson was removed, the general-in-chief supposedly predicted, there would be “determined resistance to law” in the South. The president derided the notion that the opinion of a soldier could matter on impeachment. He finally concluded that Grant probably had not made the statements (as indeed he had not).

  While the president stewed, one of his supporters started a very productive conversation. As assistant secretary of the navy during the Civil War, Gustavus Fox had been a catalyst in the development of the Union’s first ironclad ship, the Monitor. On the night after Butler closed his case, Fox visited Senator James Grimes of Iowa, one of the Republicans fingered as a potential crossover vote for acquittal. When the conversation turned to the trial, Grimes shared some political insights.

  Any Republican thinking of voting with the president, the Iowan pointed out, must fear that Johnson would greet acquittal as an occasion for wreaking vengeance on his foes. That fear alone could cause senators to vote against Johnson. In a recent public letter, Speaker of the House Schuyler Colfax of Indiana raised that concern, warning that an acquitted Johnson would cashier General Grant and refuse to obey any law he deemed unconstitutional. Was there some way, Senator Grimes wondered, for Johnson to provide reassurance that he would act moderately if retained in office? The Iowa senator also observed—as Sherman and Grant and Thomas Ewing had before him—that if only the president would appoint a politically acceptable war secretary, he might extricate himself from this mess.

  Fox carried Grimes’s messages back to his former chief, Navy Secretary Welles. Within a day, Welles delivered them to Johnson. This time, Johns
on was almost ready to listen to reason.

  DEFENDING THE PRESIDENT

  APRIL 9–20, 1868

  The president either did or did not violate the Tenure of Office Bill. Mr. Curtis makes out that (1) he did not violate it, and (2) he set out to violate it, but that in doing so he acted with the best intentions in the world. I leave to someone more clever than I the task of finding some connection between these two propositions.

  GEORGES CLEMENCEAU, APRIL 10, 1868

  SITTING AT THE defense table when the Senate convened at noon on Thursday, April 9, Benjamin Curtis gazed over piles of law books and manuscript sheets. The clean-shaven lawyer—of medium height and meaty build, with a large head—somewhat resembled his client, the president. He waited as Butler presented inconsequential testimony from two final prosecution witnesses. Then the fifty-nine-year-old former Supreme Court justice rose to give the opening statement for the defense. He cautioned his audience that his legal analysis would be “dry work.” He was as good as his word.

  Curtis’s manner was judicial and restrained, even “monotonous,” according to one observer. Many ladies fled the gallery during his opening hour, disappointed by his lack of flair. He used few vivid metaphors, indulged no personal recriminations, predicted neither glory nor doom for the Republic. In short, his stiff presentation contrasted in every way with Butler’s splenetic posturing, a contrast that made the defense seem more professional and more reliable. Even Butler acknowledged Curtis’s effectiveness. After Curtis’s speech, Butler wrote in his memoirs, “[N]othing more was said in [Johnson’s] behalf, though…much else was said.”

  Benjamin Curtis, former Supreme Court Justice.

  The Boston lawyer dove directly into the Tenure of Office Act, which was the basis for the first eight impeachment articles. He seized on a vexing ambiguity in the law. As initially approved by the Senate, the statute did not apply to Cabinet-level officers (the secretaries of war, state, interior, agriculture, and navy, and the postmaster general and attorney general). The House of Representatives then adopted a version that specifically covered Cabinet officers. A conference committee of senators and congressmen hammered out new, compromise language. A House sponsor declared that the new language covered Cabinet members (the House position); a Senate sponsor told the Senate that the new provision excluded the Cabinet (the Senate position). Thus reassured with diametrically opposed descriptions of the revised bill, both houses approved it, then enacted it over Johnson’s veto.

  The critical passage was deceptively simple. It stated that Cabinet officers “shall hold their offices respectively for and during the term of the president by whom they may have been appointed,…subject to removal by and with the advice of the Senate.” Curtis stressed two ambiguities in applying this passage to Edwin Stanton. First, he argued, Johnson did not appoint Stanton to be war secretary. Lincoln did, and he did it in 1862. After Lincoln’s death, Johnson merely permitted Stanton to continue in office. In addition, Curtis continued, Lincoln’s term of office had been over since April 1865, since Lincoln was dead. “Death is a limit,” he stated bluntly. Stanton, Curtis concluded, was now serving during the “term” of a president (Johnson) who had not appointed him. Accordingly, the Tenure of Office Act did not protect him, so Johnson had been free to cashier the war secretary.

  There were two effective responses to the defense lawyer’s argument. It was true that President Johnson did not appoint Stanton to the Cabinet, but by retaining him there, the president demonstrated the intent to have him in office. In many circumstances, the law would view Johnson’s conduct as constituting the effective appointment of Stanton to that position. In addition, wasn’t Johnson filling out Lincoln’s “term” as president? Johnson had never been elected president in his own right. If Lincoln’s term continued until March 4, 1869, then Stanton was still serving within the term of the president who appointed him.

  Recognizing that there were rejoinders to his arguments, Curtis did not press them too hard. He sought only to establish that he had raised “a very honest and solid question” about whether the statute applied to Stanton. If reasonable minds could differ on the point, he asked, then how could the prosecution show that Johnson had intentionally violated the law? If Curtis could persuade senators that the statute was not clear, then the president’s actions were not “so willful, so wrong” as to be a high misdemeanor warranting conviction by the Senate.

  Speaking for three hours on the opening afternoon, and then another hour the next day, Curtis showed lawyerly ingenuity. He not only contended that Johnson never meant to violate the Tenure of Office Act, but also insisted that the president had the constitutional power to fire Stanton and so had no duty to respect the statute. Curtis shrugged off the inconvenient fact that Johnson had several times complied with the Tenure of Office Act without seeking a judicial ruling on its constitutionality. The president followed the statute’s procedures when he first suspended Stanton, and when he fired four other officials. Holding the president to have thereby abandoned his constitutional powers would be, in one of Curtis’s rare flights of rhetoric, “a spectacle for gods and men.”

  Curtis then spun around to take an entirely different position. Johnson’s intent to replace Stanton was irrelevant, the lawyer insisted, because he had not actually removed the war secretary. In urging this surprising proposition, Curtis chose to ignore the president’s refusal to transact business through Stanton, as well as Lorenzo Thomas’s regular attendance at Cabinet meetings as the supposed interim war secretary. Curtis also denied that Johnson had appointed Thomas as interim war secretary at all, calling the president’s action the temporary filling of a vacancy—a distinction of bewildering subtlety.

  On Curtis’s second day, Friday, April 10, the weather was wet and grim. Inside the Senate, he had some uncharacteristic fun with Butler’s stump-speech article. The Boston lawyer called the attack on the president’s blustery speeches the equivalent of turning Congress “into a school of manners, selecting from its ranks those gentlemen whom it deems most competent…to teach decorum of speech.” After Butler’s performance before the Senate, the thrust was a fair one.

  Despite his dry work and dry oratory, Curtis successfully launched the president’s case. His thoughtful demeanor had a positive impact, which was reinforced by his stature as a former Supreme Court justice. Curtis brought a dignity to the defense that Butler could not match. It was not, after all, a case of horse-stealing, and no one could think so after listening to Curtis.

  Curtis’s legal analysis had the power to persuade, particularly his dissection of the Tenure of Office Act and his insistence that the president did not have to be correct that Stanton was not covered by the statute. So long as Johnson’s interpretation of the statute was not unreasonable, Curtis had argued, then a senator should vote to acquit. How could a president be deposed for applying an ambiguous statute in a reasonable manner? By the time Curtis completed his speech, all but one Cabinet member changed his view of the trial, suddenly agreeing that the president would be acquitted. Though many other factors played into the final vote on impeachment, Republican Senator Fessenden of Maine awarded Curtis the highest accolade: “Judge Curtis gave us the law and we followed it.”

  The galleries were looking forward to the testimony of the first defense witness. Jaunty Lorenzo Thomas did not disappoint. With disarming insouciance, he related how the president designated him interim war secretary, then described his efforts to seize control of that department. Thomas beguiled listeners with his tale of Stanton’s gentle response to the news that Thomas was arrested before breakfast. The image of Stanton stroking Thomas’s hair, “as he sometimes does,” then pouring out whiskeys for the two of them, seemed to dissolve the risk of a second civil war. “No two cooing doves ever met on milder terms,” crowed the New York Herald. Managers Butler and Bingham attempted to shatter the warm feelings with almost an hour’s worth of objections to testimony about the president’s statements to Thomas, but the Senate over
whelmingly voted to hear out the adjutant general.

  Butler fricasseed Thomas during cross-examination. The adjutant general gamely insisted that it was his idea, not the president’s, to use force to take over the War Department. Thomas maintained he did not even tell Johnson of his intention to use force. Then, Thomas testified, he changed his mind about using force, though he could not explain why he did, or why he failed to share that decision with the president. Finally, he said that Johnson never told him how to take charge of the War Office. Butler struck pay dirt when he secured Thomas’s admission that he was attending Cabinet meetings as the war secretary, and that the president took the position that Stanton was out of office. That testimony contradicted Judge Curtis’s claim that Stanton never had been removed as war secretary. Butler’s sarcastic questioning elicited frequent laughter. When Thomas left the stand, Butler bade him a cheery farewell: “We shall always be glad to see him.”

  If Thomas brought laughter to the Senate Chamber, the next witness contributed star power. General William Sherman strode forward to take his oath. He chose to testify while standing, his strong voice reaching each corner of the large hall. The galleries, with opera glasses trained on the red-bearded soldier, leaned forward for a better look. Sherman answered Stanberry’s preliminary questions briskly, his formal demeanor almost thrilling after Thomas’s genial bumbling.

  The defense, as Butler knew, wanted Sherman to testify that the president’s every step was designed to secure a court decision on his power to remove Stanton. Stanberry asked whether Sherman had interviews with Johnson over Stanton’s status. “I had,” Sherman answered. The House managers erupted with objections. Sherman retreated to a seat to wait out the lawyers.