The Impeachers

by Brenda Wineapple

  The side door opened, and three of the President’s defense team solemnly entered the chamber: Stanbery, Curtis, and Nelson were the lawyers designated to reply to the summons. They arranged themselves at the table. Slightly stooped, Stanbery placed his head in his hand, and Curtis briefly chatted with the smooth-faced Nelson. They seemed to have no friends but one another.

  Stanbery rose to his feet and asked that the defense be granted a continuance of forty days to prepare their answer to the eleven articles of impeachment. “Forty days—” Butler hollered, “as long as it took God to destroy the world by a flood!” Butler understood that any postponement of the trial could be fatal for a conviction, but the President’s defense team argued that the entire proceeding deserved cautious, meticulous attention. After the Senate debated the request, all Republicans eventually agreed that the President had already had more than enough time to prepare. Forty days were cut to ten.

  Then there was the debate about the trial date. Ben Butler, speaking on behalf of the managers, robustly pushed for a speedy trial, which, he said, would be more than possible in this, the day of the railroad and the telegraph. “The world moves,” Butler cried out, “and we move with it.” Besides, the Congress, the people, and the public safety all deserve a speedy trial and verdict. While the trial drags on, the work of government will stop. Defense disagreed. Should a trial of such extraordinary significance, a trial without precedent, proceed with locomotive speed, as if this were the trial of a petty criminal?

  The President’s lawyers lost that argument. The trial would begin right after they presented the President’s response to the articles of impeachment, and the managers filed their reply.

  At the White House, Andrew Johnson waited. Sometimes he walked out by himself up and down Seventeenth Street without being recognized. Thomas Ewing, Jr., contemptuously baptized him Sir Forcible Feeble. “I think Johnson was born in the month of March—which you know, ‘goes in like a lion and comes out like a lamb,’ ” he scoffed. Democrats had continued to peel away from Johnson, saying he had only himself to blame—he should have urged the South to ratify the Fourteenth Amendment, for if it had, the eleven Southern states would’ve been seated in Congress, and this impeachment trial would never have happened. Or he should be convicted for not having removed Stanton sooner. “Johnson makes a muddle of everything,” Samuel Barlow said.

  Johnson seemed a man without a country. “A little while longer,” Georges Clemenceau predicted, “he will be politically dead, like Pierce, Buchanan, and Fillmore.” Johnson decided he should take his case to his beloved people in another swing around the states. Someone prudently counseled him to stay home.

  Charles Dickens, recently in Washington on his second American tour, took a different measure of the American President. “He is a man with a remarkable face, indicating courage, watchfulness, and certainly strength of purpose,” Dickens observed. “Figure, rather stoutish for an American; a trifle under the middle size; hands clasped in front of him; manner, suppressed, guarded, anxious.” Johnson dressed to perfection. Not a crease anywhere—a man not to be trifled with. “A man (I should say) who must be killed to get out of the way.”

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  GENERAL WINFIELD SCOTT Hancock had arrived in Washington. Arrogant and self-righteous, Hancock was a romantically handsome figure who had been pleased when General George McClellan conferred on him the nickname, “Hancock the Superb.” Hancock had repulsed Pickett’s charge from behind Cemetery Ridge at Gettysburg and represented the “beau ideal of a soldier, blue-eyed, fair-haired Saxon,” said another enamored soldier, “strong, well-proportioned and manly, broad-chested, full and compact.”

  Hancock too believed himself superb, but so did other people, especially Democrats, for more recently he’d undone the work of General Phil Sheridan, whom Johnson had removed from the Fifth Military District. Johnson sent Hancock to replace him, as he alleged, because the general “had not been mixed up in political affairs.”

  Not quite true. Hancock’s wife, a Southerner, had been thrilled with her husband’s new posting. When Hancock battled the rebels, she said she’d battled with him, but in New Orleans, they were very happy together—“fighting the Radicals.” Hancock was an unapologetic white supremacist committed to states’ rights—which to him meant the rights of a white state. In Louisiana and Texas he lost no time revoking Sheridan’s orders, disbanding military courts, and in New Orleans ejecting black city councilmen from office. In Texas, the murder rate immediately skyrocketed, with as many as fifty-four a month being reported (in a population of 700,000). Jeremiah Black and other conservative Democrats took admiring notice, and Johnson, hoping to humiliate Grant, asked Congress to offer Hancock some sort of official recognition or appreciation. Congress essentially laughed off the request.

  Grant, who’d known Hancock ever since their days at West Point, was growing disillusioned with his superb colleague, and would later characterize him as corruptible and vain—and as a duplicitous political conniver. When Grant countermanded General Hancock’s orders in New Orleans and reinstated several of the officials Hancock had ousted, Hancock bitterly decided he had to resign his command of the Fifth Military District, where, as he archly said, it was neither useful nor agreeable for him to serve.

  Hancock was just the man Johnson had been looking for. He despised Radicals, spurned congressional reconstruction, and he believed Grant had humiliated him. Johnson beckoned him to Washington. Once there, he paraded himself around the city, snubbing General Grant when the two men met on the street. Hancock formally touched his hat and kept walking, but he’d thought Grant had been insulting. It was a small political world compounded of policy, partisanship, and principle—as well as self-righteousness, delicate feelings, and slights, both real and imagined. So Hancock rode over to the White House, where he was frequently spotted holding court in the East Room.

  By the end of March, as the impeachment trial was moving forward, Johnson appointed General Hancock to the newly created Division of the Atlantic, the division he had created to move Sherman closer to Washington. Unlike Sherman, Hancock did not refuse, even though the legality of the division was never really determined. Still, the idea of Hancock, commander of the Division of the Atlantic, headquartered in Washington, inspired a new round of rumors: in the case of his conviction, Johnson intended to foment a rebellion, with Hancock leading the assault.

  If Johnson harbored a fantasy of revenge, bolstered by military might—and he likely did—he was not really a man to do more than bluster. His appointment of Hancock and Hancock’s acceptance were political maneuvers, not acts of violence. Yet they did strike fear in the hearts of the weak-kneed or paranoid—and Johnson’s recklessness disturbed his defense team. As for the rumors, cooler heads said they should be ignored. “I cannot believe there is really any danger of armed resistance to impeachment, the force which Johnson could command is so small, and the suicidal folly of such a course so evident,” Moorfield Storey wisely observed. “Still,” he added, as if with a shake of the head, “Johnson is an exception to all rules.”

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  A MASSEUSE RUBBED Henry Stanbery down every morning, as if preparing him for the ring. “Do not lose a moment’s sleep, Mr. President,” Stanbery gaily told Johnson, “but be hopeful.”

  On March 23, when the court of impeachment reconvened, William Evarts laid out before the Senate the President’s long reply, speaking in businesslike fashion and taking turns with Benjamin Curtis to read the document aloud. It took two hours to present their case.

  Presumably, the spectators were familiar with the broad outlines of the impeachment articles. The first one was simple enough: Johnson had violated the Tenure of Office Act by sacking Secretary of War Stanton. The second article charged Johnson with violating that law by appointing Lorenzo Thomas interim replacement of Stanton. The third article of impeachment was
more complicated. It accused the President of violating the Constitution by appointing Thomas because the position (Stanton’s) was not vacant.

  The fourth impeachment article alleged that there had been a conspiracy between Johnson and Thomas, and perhaps others, to hinder and prevent Edwin Stanton from holding his office, in violation of the Constitution. The fifth article alleged much the same thing, except that it charged that the conspiracy of Johnson and Thomas defied the Tenure of Office Act. And the sixth article of impeachment accused President Johnson and Lorenzo Thomas of using force to seize the war office.

  Thus far, the articles dealt with specific legal infractions. Similarly, the seventh article of impeachment charged President Johnson and Lorenzo Thomas of conspiring, with intent, to seize the war office and violate the Tenure of Office Act. The eighth article was somewhat different in that it alleged the President had disregarded the Tenure of Office Act by issuing orders to General Thomas to seize the property of the war office even though the Senate was in session, which was, again, a breach of the Tenure of Office Act, since there was no vacancy in the Department of War.

  The technical differences among these accusations had annoyed Thaddeus Stevens. And the ninth article continued to displease him: it accused President Johnson of intending to encourage General William Emory, commander of the Washington area, to ignore orders issued through General Grant in favor of those that might be issued by President Johnson himself. To define impeachment in terms of breach of office, Thaddeus Stevens and Ben Butler along with the more conservative James Wilson had stitched together the tenth and then the eleventh articles. The tenth impeachment article accused the President of intending to set aside the authority and powers of Congress as well as bring it into disgrace, contempt, and ridicule. It cited Johnson’s hysterical speeches, particularly the ones made during his “Swing Around the Circle.” And the eleventh impeachment article, the omnibus one, baldly accused the President of contravening and denying the authority of Congress, particularly when Johnson said Congress did not represent all the states. Similarly, Johnson had denied Congress’ power to amend the Constitution, never mind remove the war secretary. And this eleventh article cited the President’s attempt to hinder the execution of Reconstruction Acts passed by the legislature. Taken together, the tenth and eleventh articles accused Johnson of betraying the public trust—not just stepping on a statute.

  Whether or not the spectators had memorized all eleven impeachment articles, or whether they could distinguish among them, they understood the basic character of the case. And the President’s defenders began their argument by outlining it. To begin with, Johnson had planted himself firmly on the Constitution, which conferred on him the ability to appoint or remove all executive officers “for cause to be judged by the President alone.”

  Secondly, the President did not admit the constitutionality of the Tenure of Office Act, which he said that in any event he had not violated. He maintained that the law conflicted with the Constitution of the United States in that it interfered with his authority as chief executive. He had, though, initially obeyed that law while investigating whether it applied to Stanton—then he had discovered that it did not. Edwin Stanton had been appointed as secretary of war by President Lincoln, and presumably the act provided that cabinet members were subject to it for the term of the President who appointed them, plus one month.

  Further, his lawyers said, Johnson had not entered into any conspiracy with any general, neither General Thomas nor General Emory. “No threat or threat of force was used,” the lawyers also claimed on Johnson’s behalf. “His sole intent was to vindicate his authority as President of the United States, and by peaceful means to bring the question of the right of the said Stanton to continue to hold the said office of Secretary of War to a final decision before the Supreme Court.” As for the tenth article of impeachment, which accused the President of disrespecting Congress, his lawyers contended that Johnson merely claimed his right to speak as he chose, “within and according to his right and privilege as an American citizen and his right and duty as President of the United States.” They also demanded proof of “the actual speech” that Johnson had presumably delivered. For Johnson had only insisted that the eleven Southern states excluded from Congress be represented there.

  Finally, regarding article eleven, the catchall article of impeachment, Johnson’s lawyers cleverly declared that there were no specific charges listed, and that at no time, whether on February 21, 1868, when he dismissed Stanton, “or at any other day or time, commit, or…was guilty of, a high misdemeanor in office.”

  Curtis was largely inaudible and Evarts unemotional. Members of the gallery began to yawn and dream of lunch. Sumner glanced for a moment through the newspaper. The managers listened closely, and occasionally John Bingham and General Logan grabbed a pen to jot a few notes. Only Logan supplied a few sparks. When Johnson’s defense again asked for a further delay of thirty days, Logan exploded. “We, as the managers on the part of the House and the country, consider the President a criminal, but not an ordinary one,” he shouted. “Ordinary criminals are either arrested and put under bonds or imprisoned, that no further violation of law may be committed by them during the pendency of their trial.” Not so the President. He might endanger the people. We need a speedy trial.

  The request for more delay was denied, and the trial was set to begin in earnest on March 30, the very next week.

  CHAPTER TWENTY-TWO

  The Trial

  Not until Monday, March 30 did the curtain truly rise on the impeachment trial. Yet there would be three more long weeks of sparring to come, both the managers and the defense testy, and all the players performing their parts, whether those players were reporters or generals or the sometimes rapt, sometimes bored audience sitting before a carefully set stage: those long tables at which the prosecution and the defense conferred, the cane-bottom chairs and sofas spread over the red carpet, and the police guards, wearing bright blue, stationed at every entrance. Both the public and performers knew the stakes were high, far higher than any they’d witnessed in any theater except the theater of war. Yet the protagonist, the chief executive, would not be speaking his lines aloud, not on this stage anyway. It was like Hamlet played without the Hamlet.

  The skylight was dull on rainy days, and on those days the number of spectators thinned. Generally, though, they crowded the hallways, gripping their tickets of admission. These spectators were mostly government people or their relatives—known as the aristocracy of the democracy, come from near at hand and far away: the wives and daughters of diplomats from several foreign embassies wore vivid spring colors, yellow and lavender and green. There were the actress Fannie Kemble and the orator Anna Dickinson, who had come to Washington to deliver a public indictment of the President; and at various times such well-known writers as Harriet Prescott or Ann Stephens appeared, seated together although they didn’t agree about Johnson’s guilt. Below them, on the sofas, were notables like General Carl Schurz, who had just arrived from Germany, his face thin as a blade, and the full-blooded Seneca Iroquois General Ely Parker from General Grant’s staff. They arrayed themselves near the center of the chamber, where the senators performed in the court of inquiry.

  Each day Thaddeus Stevens was carried in his chair through the rotunda into the Senate chamber at twenty past noon, and Chief Justice Chase, black silk robe rustling, followed shortly afterward. The sergeant-at-arms announced the rest of the managers and the defense team. They all took their seats at their respective tables, on which the Senate pages had arranged those silver pitchers and piles of paper and pens. Then came members of the House, who ceremoniously walked over the red carpet to their seats.

  Chief Justice Chase called the Senate to order with his gavel. Ben Butler rose to his feet. The sharp debater and crack criminal lawyer known far and wide for his courtroom tactics—though not for his honesty—and the man who had clamored longest for th
e President’s impeachment, Butler had been selected to deliver the managers’ opening argument.

  The room was like a vaulted tomb, said journalist Emily Edson Briggs, who peered from the gallery with her opera glasses. Everyone knew that to prepare, Butler had secluded himself for over a week, with very little sleep: only nine hours over three days. He later recalled that when he had to make his opening argument, he came as close as he ever had to running away.

  Wearing a new swallowtail coat, Butler addressed the Senate for nearly three hours, with only one break for refreshments, which the crowd, though listening attentively, really needed. He provided very few rhetorical flourishes. When he spoke of the violence in New Orleans, for instance, he said that only silence did justice to the horror of it. Rather, he cogently presented the prosecution’s argument against President Johnson and, more to the point, he outlined for the court and thus for the public a definition of impeachable offenses, starting with a definition of an impeachable misdemeanor.

  An impeachable misdemeanor might be an act that subverted the principles of government, such as one that violated the Constitution or that flouted an official oath or duty or law; it could be an act that abused or usurped power. Claiming that the Senate was “bound by no law, either statute or common, which may limit your constitutional prerogative,” Butler then argued that during the impeachment trial, the Senate, acting as a court, was a law unto itself, bound only by principles of equity and justice where the law of the people was supreme. And since an impeachment trial took place in the Senate, not a judicial court, it was not subject to a judicial court’s restrictions regarding conviction—namely, certainty beyond a reasonable doubt. In an impeachment trial, the managers need only offer a preponderance of evidence to prove guilt.