The Impeachers

by Brenda Wineapple

  Butler then listed legal precedents to bolster his argument before enumerating each specific article of impeachment, one by one. He concluded by declaring that the House of Representatives had done its duty in impeaching President Andrew Johnson. The safeguarding of liberty now lay in the Senate’s hands. “I speak,” Butler finished, “therefore not the language of exaggeration but the words of truth and soberness, that the future of political welfare and the liberties of all men hang trembling on the decision of the hour.”

  By avoiding the sidewinders and flamboyant accusations for which he was known, Butler did disappoint some spectators with a speech that they considered dry and dull. The partisan press predictably dissected Butler’s overture. Conservatives and Democrats criticized him for drowning his audience in a sea of irrelevant precedents. Republicans generally praised Butler as comprehensive and formidable, but Charles Sumner’s secretary Moorfield Storey was one of the dissatisfied ones. “He might have made a stronger argument on the point of the proviso in the Tenure-of-Office Bill,” Storey grumbled, “and on the absurdity of the President’s claim to dispense with the laws of Congress on the ground of their unconstitutionality.”

  But Butler had been effective enough, and while he spoke, defense attorney Curtis occasionally whispered to Stanbery, and Evarts sat with his head dipped down, catching every word. Nelson and Groesbeck scribbled quickly, as if trying to record Butler’s every accusatory jab.

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  ON THE SECOND day of the trial, March 31, the room felt steamy not just because the chamber was badly ventilated, which it was, or the crowds were dense, which they were, but because the patience of all parties had already become strained.

  For one thing, the managers and the chief justice faced off about Chase’s role as presiding judge. The issue again came up when the managers called as a witness Walter Burleigh, a delegate from the Dakota Territory and a friend of General Lorenzo Thomas. Stanbery immediately objected; Burleigh’s testimony wasn’t relevant, Stanbery said, because he would be testifying about a conversation with General Thomas, and General Thomas was not on trial. Even more to the point, any references that Burleigh might make to the President were at best secondhand.

  Mildly amused, Butler asked how the defense could object if it didn’t know what Burleigh was going to say. Justice Chase interrupted, declaring that the testimony was admissible. Senator Charles D. Drake of Missouri, a Radical, objected from the floor. (“He was a man of small stature,” Carl Schurz remembered Drake, “but he planted his feet upon the ground with a demonstrative firmness.”) Did Chase really have the authority to decide whether evidence should be admissible or not? Drake asked. Justice Chase said he did. Drake disagreed and asked the Senate to vote, but Maine Senator William Pitt Fessenden said Drake was out of order—a claim that may have indicated to anyone watching that Fessenden was becoming less and less eager to be identified with the impeachers.

  Chase held his ground: the chief justice should decide questions of evidence, although the Senate could vote to refute him. Butler replied that if Chase had his way, the hands of the managers were tied. “The managers may propose a question to the Senate, and the Chief Justice decides it,” Butler explained, “and [the managers] then cannot get the question we propose before the Senate unless through the courtesy of some senator.” That is, the managers would have to hope some senator would intervene on their behalf and make a motion for them, since they couldn’t make one themselves.

  Although Butler liked to hear himself talk, his argument made sense. The precedents both in England and in the United States suggested that the presiding officer, even when a member of the deciding body, had no more rights than anyone else. And if he was not a member of the body, as Chase was not since he wasn’t a senator, he could merely submit the question to the larger body, not decide it. John Bingham agreed with Butler; the Senate had sole authority over the impeachment trial.

  Sumner’s young and eager secretary Moorfield Storey, who attended the trial every day, was astonished that just when the Senate was deciding to discuss the issue further, “Mr. Chase made a little coup d’état,” Storey said. “As soon as the vote was handed him to read he said, ‘On the question the ayes are twenty-five, and the nays are twenty-five. The Chief Justice Votes “Aye,” and the question is decided in the affirmative,’ and immediately left the Chair and the Chamber, so that it was physically impossible to make any objection to his course.”

  “The secret of the matter is that some of the Republicans, Wilson, Edmunds, etc., were afraid that if they were to decide against Chase,” Storey explained to his father, “he would get mad, think himself deprived of his constitutional rights, and decline to preside, thus making a very awkward complication, and they thought it better to yield on a point of no practical importance than to jeopardize the whole proceeding. In this I think they were weak and cowardly,” Storey concluded, “nor do I believe that Chase would make such a fool of himself.”

  Storey was likely right. No fool, Chase would not quit the trial, which promised to be good for his presidential prospects. For Salmon Chase was an honorable man who believed himself to be the soul of impartiality when it suited him, and to a certain extent, he was impartial. Yet he was also a man who continued to covet—or need—power, power, and more power. As the supreme arbiter of impeachment, that power would be his, no matter what. By supervising the trial to please the Democrats, he might be able to secure their nomination for President, so he could be more impartial than usual when necessary.

  Several senators prodded Charles Sumner to propose a resolution to prevent Chief Justice Chase from deciding on the admissibility of evidence. Sumner too believed that under the Constitution, Chase had no right to make those decisions precisely because he was not an elected official. Though Storey warned Sumner that the resolution would be defeated, Sumner was insistent. But Storey was right. The resolution lost by six votes. Fessenden had voted against Sumner, as did James Grimes of Iowa, Kansas Senator Ross, and Missouri’s John Henderson. They were wobbly impeachers.

  That night, on the way home on the streetcar, Sumner asked Vermont Senator George Edmunds why he had voted against the resolution since he’d agreed with it. Edmunds replied, “Mr. Chase was already very angry.” Edmunds didn’t want to provoke the chief justice any further. “So you see how constitutional questions are decided,” Moorfield Storey noted in disgust.

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  THE DEBATE ON Chase’s role in the trial had lasted three wearying hours, and now Stanbery and Evarts were regularly interrupting Butler’s interrogation about whether Burleigh had heard General Thomas say he’d break down the doors of the war office. The question was leading, the conversations were not admissible evidence.

  Moorfield Storey fumed. “The defense fight every bit of testimony to which they can possibly object, and yesterday their cross-examination was absurdly minute,” he said. “It was as absurd as any of the caricatures given in novels, and its only point apparently was to make a joke of the testimony and so destroy its force.”

  On the fourth day of the trial, Thursday, April 2, a ferocious thunderstorm threw so much dust on the chamber skylight that the gas lamps had to be lit. General William H. Emory, military commander of the District of Columbia, took the stand.

  The managers wanted to focus on the ninth impeachment article, which alleged the President had suggested Emory disobey the Military Appropriations Act and take orders from the President instead of from General Grant. Emory had refused to do so.

  Again the testimony bogged down. The defense and the managers wrestled with one another until just before five o’clock, when tired Democrats called for an adjournment. Republicans wanted to plow ahead, or at least Charles Sumner did. The vote on adjournment was taken. It was a tie. Chase broke the tie. Adjourn—and delay.

  Spectators had come to the trial expecting broad strokes an
d swashbuckling argument; broad strokes made for broad drama: heroes and villains and soaring rhetoric about the meaning of the presidency, democracy, nationhood, or the direction that the country ought to take after the recent war and the eradication, if there be eradication, of slavery. But the testimony was mired in finicky detail, and by the sixth day of the trial—Saturday, April 4—the number of spectators had dwindled even more. Occasionally Butler pretended to drop his papers on the floor to wake people up. But fewer and fewer of them heard testimony about President Johnson’s tirades against Congress during the celebrated “Swing Around the Circle.” Even fewer heard another lengthy back-and-forth between the lawyers, about whether the stenographer James Sheridan or James Clephane or Johnson’s secretary Colonel Moore had copied the President’s speeches accurately. What was the nature of the stenographer’s abbreviations? Had the stenographer made slight changes or revisions to the text? Fewer still heard about whether stenographic shorthand was trustworthy and about whether the speech, as copied, was the very same speech that appeared in the newspapers, especially since the original stenographic notes were missing, if they in fact were missing. And, in any case, it was asked, was a reporter’s testimony even admissible?

  It seemed as though the lawyers were counting the number of angels on the head of a pin—and then demanding to know if the pin was real.

  Butler questioned William Hudson, a reporter for the Cleveland Leader.

  Mr. Manager Butler: You have been asked, Mr. Hudson, about the crowd and about the manner in which you took the speech; were there considerable interruptions?

  A. There were.

  Q. Were there considerable pauses by the President from step to step in his speech?

  A. There were; and necessary pauses.

  Q. Why “necessary”?

  A. Because of the interruptions of the crowd.

  Q. Was the crowd a noisy one?

  A. It was.

  Q. Were they bandying back and forth epithets with the President?

  Mr. Evarts. We object to that. The question is, What was said? Sir.

  Manager Butler. I do not adopt that question. I will repeat my question, Whether epithets were thrown back and forward between the President and the crowd?

  Mr. Evarts and Mr. Curtis. We object to the question. The proper question is, What was said?

  Mr. Manager Butler. That is your question.

  Mr. Evarts. The question, as put, is leading and assuming a state of facts. It is asking if they bandied epithets. Nobody knows what “bandying” is or what “epithets” are.

  Mr. Manager Butler (to the witness). Do you know what ‘‘bandying” means, Mr. Witness? Do you not know the meaning of the word?

  Mr. Curtis. I suppose our objection is first to be disposed of, Mr. Chief Justice?

  Mr. Manager Butler. I wanted to see whether, in the first place, I had got an intelligible English word. However, I withdraw the question. [A pause.] My proposition is this, sir: it is not to give language—

  Mr. Evarts. There is no objection if you have withdrawn your question.

  Mr. Manager Butler. I have not. I have only withdrawn the question as to the meaning of a word which one of the counsel for the President did not understand.

  Butler was tart and amusing. William Evarts was not amused.

  Absent spectators also missed the recitation of President Johnson’s speeches—deemed admissible—the ones where he’d called Congress tyrannical or said Thad Stevens and Charles Sumner should be hanged or that the Freedmen’s Bureau was a form of slavery because it cost white people millions of dollars. They missed hearing Johnson’s speech about his own valiant heroism and how he’d fought first against traitors in the South—and then the traitors in the North.

  But Butler returned to the central issue: the violation of the Tenure of Office Act, producing a letter from President Johnson to Treasury Secretary Hugh McCulloch, dated the previous August 14, saying that the President had suspended Stanton, per the Tenure of Office Act—which demonstrated that Johnson was at that time willing to follow the law, not test its constitutionality.

  Butler was satisfied, but he could not rest. He knew he had not yet clinched the case.

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  IN 1868, THE public’s attention span was not any better than it would be in later years. Assuming this, the defense intended to slow the progress of the trial. The House of Representatives had impeached President Johnson in February. It was April, and the President’s men still insisted they be granted several more days to prepare.

  In fact it wasn’t until Thursday, April 9 that Benjamin Curtis began to defend the President. In a polished and dispassionate opening speech, Curtis maintained that the basic—indeed, the only—issue was the Tenure of Office Act, which did not in fact apply to Secretary of War Edwin Stanton because he had been appointed by Abraham Lincoln, not by Andrew Johnson. Curtis clarified: the Tenure of Office Act stipulated that the cabinet members “shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”

  To Curtis, who interpreted the language of the law very closely, Stanton was serving out the remainder of Abraham Lincoln’s term. Johnson’s decision to replace the secretary of war was thus legal: “The necessary conclusion, that the tenure-of-office of a Secretary here described is a tenure during the term of service of the President by whom he was appointed; that it was not the intention of Congress to compel a President of the United States to continue in office a Secretary not appointed by himself.” Since Andrew Johnson had not appointed Stanton, he was under no obligation to keep him.

  Serious people might thus seriously disagree about the construction of the Tenure of Office Act.

  Curtis also argued that Johnson was obliged to protect the Constitution, and the only way to protect it, in this case, would be to violate the Tenure of Office Act and put it before a court, which would test its constitutionality.

  It was perplexing. Technically, Johnson could not break a law that did not apply to him, so if he appeared to break the law, it was only to test its legality.

  People were understandably puzzled. “I cannot see how Mr. Curtis can reconcile his two lines of defense,” Georges Clemenceau remarked. “The President either did or did not violate the Tenure of Office Bill. Mr. Curtis makes out that 1) he did not violate it, 2) he set out to violate it and did violate, 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.”

  The next day, April 10, as rain continued to pound on the skylight, Curtis resumed his circuitous defense for another two hours, droning on in a monotone.

  As for the charge of conspiracy, Curtis insisted that Johnson had not plotted with General Lorenzo Thomas to violate the Constitution—and in any case Johnson had never appointed Thomas to any office. Rather, Johnson had made General Thomas an ad interim—temporary—war secretary in case a vacancy might occur. And the President’s issuance of that appointment, and Thomas’ accepting it, did not constitute any breach of the law, the Constitution, or any conspiracy.

  The claim that President Johnson had intended to seize by force or through intimidation any property of the U.S. government, like the War Department, was utter nonsense, Curtis went on. True, the President had called General Emory to the White House, but he’d done so only to obtain routine information about military activities.

  Curtis subsequently turned to the tenth article of impeachment, which focused on the President’s contentious speeches. Johnson had every right to say what he thought—namely, that the Southern states should be represented in Congress.

  Overall, then, Curtis asserted that there were no grounds for impeach
ment: certainly no treason, no bribery, no conspiracy to commit either treason or bribery, and as for “high crimes and misdemeanors,” Curtis rhetorically wondered, “against what law? There can be no crime, there can be no misdemeanor, without a law, written or unwritten, express or implied. There must be some law, otherwise there is no crime.”

  Benjamin Wade played with his thumbs.

  “My interpretation” Curtis persisted, “is that the language of ‘high crimes and misdemeanors’ means ‘offences against the laws of the United States.’ ” To Curtis, the President had broken no law, as alleged in the first eight articles of impeachment; and as far as the tenth article was concerned, the Constitution guaranteed free speech. And there was no need, Curtis concluded, even to address the omnibus eleventh article of impeachment and Johnson’s supposed obstruction of Congress and its laws. Curtis claimed he’d demolished it when he’d dissected the other ten.

  Many listeners were predictably pleased; others, predictably disappointed. Curtis seemed to contradict himself, or at least his argument seemed inconsistent. Critics analyzed his argument: that Stanton had not been removed because he had not vacated the office, and Johnson had not broken the law in any case because Stanton had been appointed by Lincoln. So Johnson could not have intended to violate the Tenure of Office Act. Critics also pointed out that Curtis said the office had in fact been vacated so Lorenzo Thomas could temporarily occupy it while the President tested the constitutionality of a law that didn’t pertain to him—and that Johnson had earlier complied with. Curtis had left this out.

  Again, it was a puzzlement.

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  THERE IS A story about how Ben Butler and William Evarts found themselves guests at the same dinner party. When Butler good-humoredly said he wouldn’t mind switching sides with Evarts in the trial, Evarts pleasantly replied that he didn’t doubt it—and, as far as he was concerned, he wouldn’t mind sitting on Butler’s side of the fence.