The Impeachers

by Brenda Wineapple

  Their banter notwithstanding, the two lawyers and their teams would in a sense change places in terms of tactics, for each of them did not follow the map that they—the impeachers and the defenders—had initially sketched for themselves. The impeachers were supposed to argue sweepingly, nobly, and idealistically. They were spokesmen for a rejuvenated nation recovering from the tragedies of war. They were supposed to conjure the more perfect Union that Andrew Johnson had been set on destroying since he had chosen the crooked, not the straight, path for the present and the future, as Wendell Phillips had once said. They were supposed to keep before the Senate and hence the public the fact that the President had imperiled the peace of the country; that he had committed great crimes against the people, all the people, by allowing unreconstructed Southerners back into office; and that he had betrayed the country and the principles on which it was founded.

  The President’s defenders, on the other hand, were to hew to the letter of the law or what they conceived the letter of the law to be, as Curtis had done. They were to reduce the President’s crimes to a series of legal loopholes stemming from the basic issue of whether he’d violated the Tenure of Office Act. They were to niggle and nitpick. Yet as the trial continued, impeachers and defenders seemed to be trading places, as when Butler argued technicalities about whether Andrew Johnson had broken a law, and what rules of evidence for breaking a law should include. Or when John Bingham, in a convoluted argument, claimed that whether he prosecuted a beggar or a President, the same rules of evidence applied. That meant he could establish “intent”—Johnson’s intention to violate the law—by proving that Johnson broke the law and therefore had intended to do so.

  And it was defense attorney Evarts who painted with the broad brush that Butler had not used. Evarts’ subject was duty: at stake were the duties of the President of the United States, his role as leader, and as a corollary, the significance of the presidential office. Johnson had acted in the public interest for the public service, and he had acted faithfully, with the intelligent and conscientious opinion of those in public service. But more—and here Evarts smoothly addressed the Senate at large: “Now, senators; reflect you are taking part in a solemn transaction which is to effect, in your unfavorable judgment, a removal of the Chief Magistrate of the nation for some offence that he has committed against the public welfare with bad motives and for an improper purpose; and we offer to show you that upon consultations and deliberations and advice from those wholly unconnected with any matters of personal controversy and any matters of political controversy, and occupying solely the position of duty and responsibility in the military service of the country, he acted and desired to accomplish this change.” The change was the removal of Stanton.

  If we question the President’s actions, Evarts further implied, we are questioning the very integrity of the office, not just the officer who serves it. And so we cannot try that officer as if this were a police court. Butler was prosecuting the case as if Andrew Johnson were a horse thief, not the President of the United States. This was not the trial of a horse thief; this was the impeachment trial of a President, a chief executive, and commander in chief—and to remove him would threaten to weaken the nature of the executive branch of government.

  Instead of replying to this line of attack—that we must above all protect the office of the President—the prosecuting managers too often reduced the great legislative act of impeachment to complicated minutiae. And the President’s defenders began to argue for government stability and presidential authority, the rock-solid foundation that the country deserved.

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  THE DEBATES OVER what evidence was admissible continued through Saturday, April 11, when Butler caught General Lorenzo Thomas, the hapless interim war secretary, in a web of contradictions. It wasn’t long before the befuddled General Thomas started to appear ridiculous. He was clearly confused, indiscreet, and a braggart. Flustered, he seemed to suggest Johnson actually had recommended that he use force to remove Stanton from his office. The more Butler grilled Thomas, the more Thomas collapsed. “As he left the stand,” Whitelaw Reid noted, “one could not repress a feeling of pity.”

  A more significant battle was waged when the defense called General Sherman later that afternoon. General Sherman and his father-in-law, Thomas Ewing, had been seated together for several days, with General Sherman attracting a good deal of attention: here was the celebrity war hero who had famously snubbed Secretary of War Stanton during the Grand Review back in the spring of 1865 when he’d refused to shake Stanton’s hand. The secretary, Sherman believed, had slandered him because of the truce he’d negotiated with Confederate Joe Johnston.

  Men and women in the galleries raised their opera glasses to catch a glimpse of the straight-arrow general loaded down with a large sheaf of notes and papers. “The high forehead and eagle eyes; the thin, quivering nostril, and square manly shoulders; the muscles of wire-drawn steel,” Emily Briggs observed, “like an exquisite stringed instrument, he must be kept up to concert pitch.” Sherman was wearing his full dress uniform, albeit in shabby-genteel fashion, as was his style. The cloth on his elbows and knees was scuffed, as if he had just been riding his horse.

  General Sherman was at first permitted to answer very few questions, for the managers and the defense were again squabbling about whether Sherman’s account of a conversation with the President should be admitted as evidence. Why take Sherman’s word for what was said? Did the President actually ask Sherman to be interim war secretary in order to place a “tool” in the War Department (which surely Sherman was not), as Butler was insinuating? The debate went on for an hour and a half before the question was put to the Senate, which voted Sherman’s conversation with Johnson inadmissible. The inconsistencies were glaring. The Senate had voted to admit General Thomas’ testimony but not General Sherman’s.

  The interrogation continued, the squat Butler leaping up again and again to object. Stanbery asked Sherman if the President intended to place the Tenure of Office Act before the Supreme Court when he appointed Sherman interim war secretary. Objection: leading the witness. Stanbery reframed the question. Butler jumped up again. “I submit that that is contrary to all rule. When a leading question has been put, it cannot be withdrawn and put in another form.” Stanbery was visibly annoyed. The Senate agreed with Butler and voted to exclude the question.

  A frustrated Charles Sumner, opposing Butler, voted to admit Sherman’s testimony and soon Sumner was proposing that all evidence be admitted to avoid these long, needless lectures. The Senate tabled the motion. Senator Doolittle asked that the court adjourn. “No! No!” others shouted.

  Evarts was unflappable. Dueling was his forte. But not until Monday, April 13, after more wrangling, was the question finally put to Sherman about the President’s offering him the position of interim war secretary. “He did not state to me then that his purpose was to bring it to the courts directly,” Sherman replied, “but for the purpose of having the office administered properly in the interest of the army and of the whole country.”

  Sherman’s answer surprised the defense. Johnson was not thinking about the constitutionality of the Tenure of Office Act; he merely wanted to get rid of Stanton. “It is one of the curious revenges of history,” the Cincinnati Daily Gazette observed, “that this man, who refused to speak to Secretary Stanton on the day of the grand review, should be here now to give evidence touching his refusal to aid in getting Stanton out of office.”

  Sherman continued. “I made this point,” Sherman explained. “ ‘Suppose Mr. Stanton do not yield?’ He answered, ‘Oh! he will make no objection; you present the order, and he will retire.’ I expressed my doubt, and he remarked, ‘I know him better than you do; he is cowardly.’ ”

  Yet if Sherman bore Stanton no love, he bore Johnson none either. Johnson was incompetent. He did not know how to govern. He had mismanaged the Stanton affai
r. And the bickering of both sides disgusted Sherman. He prided himself on bearing an erect posture in all things, which is why he lugged those notes and daybooks into the Senate chamber. He delivered a blow to the President’s defense when he claimed Johnson had wanted to oust Stanton, not test the Tenure Act’s constitutionality, but he delivered a blow to the prosecution too. After more haggling between the lawyers, Democratic Senator Reverdy Johnson directly asked Sherman to differentiate between an initial interview with the President and a second one. During the second interview, Sherman said, the President did in fact talk about the constitutionality of the Tenure of Office Act. “It was the constitutionality of that bill which he seemed desirous of testing and which, he said, if it could be brought before the Supreme Court would not stand half an hour,” Sherman clarified. He was now assisting the President’s defense.

  Having at first failed to elicit the testimony he desired from Sherman, Henry Stanbery was upset. And Butler’s doggedness took his breath away, according to Moorfield Storey. “The bland impudence with which Butler stares at him when he rises to reply seems to excite him as much as a red cloth does a turkey cock.” His temper in tatters, Stanbery did not show up at the Capitol the next day. Evarts said Stanbery had caught a cold and would soon be back, but seasoned reporters guessed that he’d cracked under the pressure of Butler’s badgering. Except to make his closing argument, Stanbery never did return to the trial, though he continued to pursue the President’s policies long after Johnson left office. In 1871 he would join with Reverdy Johnson in South Carolina to defend the Ku Klux Klan against charges of conspiracy.

  Momentarily deterred because Stanbery had been their leader, the defense team retained its composure by unspooling reams of documentary evidence and pages and pages of precedents, pages and pages of them, to prove that President Johnson had exercised his right to remove officials even though the instances cited had all occurred before the Tenure of Office Act had been passed. Delay, delay, delay. Irritated, Ben Butler objected when Curtis and Evarts wanted to adjourn again to allow Stanbery to recover. “Far be it from me not to desire to be courteous, and not to desire that we should have our absent and sick friend here to take part with us,” Butler said. “But the interests of the people are greater than the interests of any one individual.

  “We have been here in the Senate,” Butler explained more specifically, “for thirty-three working days, twenty-one of them given over to delays—and four early adjournments, all to accommodate the defense. The government was practically shut down. Nothing can be done, and the whole country waits upon us and our action.”

  And then Butler could no longer keep his emotions under wrap. “While we are waiting for the Attorney General to get well, numbers of our fellow-citizens are being murdered day by day,” he fairly shouted. “There is not a man here who does not know that the moment justice is done on this great criminal, the murders will cease.

  “While we are being courteous, the true Union men of the south are being murdered, and on our heads and on our skirts is this blood if we remain any longer idle.”

  Let the trial go on, he begged. He was speaking with considerable warmth, he said, because “I feel warmly.” Every day he received in the mail some account of a murder, an atrocity, an assassination, often the handiwork of a secret organization called the Ku Klux Klan, which also threatened him and his colleagues daily. “I want these things to stop.”

  Patronizingly, Evarts dismissed Butler’s speech as a harangue. Butler had wasted as many as twenty minutes blathering about a mythical Ku Klux Klan. Senator Simon Cameron of Pennsylvania took offense; Butler held firm. For he steadfastly believed both in what he was doing and in how he was doing it.

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  ANOTHER DRENCHING RAIN kept almost everyone indoors that day, April 16, the same day the black community in the District of Columbia celebrated Emancipation Day, commemorating the act Lincoln had signed on April 16, 1862, to end slavery in the capital. It was no accident that on that day Butler continued to wave what was known as the “bloody shirt,” a colloquial shorthand for the rabble-rousing claim that since the war the killing hadn’t stopped. Either side could wave that shirt, though the Republicans mostly did it, and Butler certainly knew how to wage a politics of blood and fear.

  That did not diminish very real concern about the mysterious organization, recently founded, called Ku Klux: “an organization which is thoroughly loyal to the Federal constitution,” declared the Richmond Examiner, “but which does not permit the people of the South to become the victims of negro rule.” Spreading from Johnson’s home state of Tennessee throughout the South, already the Klan was said to have five thousand members in Alabama alone. Targeting black men and women and their white Republican friends, Klansmen visited them in the middle of the night, yanked them out of bed, and whipped them with beech sapling switches before they rode off. Masked and hooded, Klansmen pounded through the streets, come to redress, they said, injustices that had been inflicted on the rebels. They met at the city cemeteries, claiming they rose straight from hell, for the handwriting was on the wall, they said, and the devil is out of the den. “Death’s angels are always on the lookout,” they said. “Unholy Blacks, Cursed of God, take warning and fly.”

  In Tennessee, they dragged black people out into the fields and made them promise never again to vote Republican. Klansmen burned a courthouse in Eutaw, Alabama, and in Jackson, Mississippi, they executed a prominent white lawyer. In Georgia, they placed placards around various towns threatening to punish “evil politicians, renegades, scalawags and wrong-doers.” In Columbus, Georgia, the Radical Republican Colonel George Ashburn (white) was murdered at his boardinghouse just after midnight by a group of masked men who seemed, in spite of the masks, nattily dressed. Ashburn had been shot in the eyes and the mouth and his body twelve times. Soon it was said there was at least one murder a day in Tennessee. A report from Knoxville counted 70,000 Klansmen, but no one knew for sure how many there were. Charles Sumner called the atrocities “an orgy of blood.”

  George T. Downing was one of the delegates who along with Frederick Douglass had called on Johnson in 1866—and who’d recently sent oyster soup over to the War Department to fortify Stanton, still barricaded there. Downing received a warning. “Remember Lincoln,” it read. “Stick to your oysters and let politics alone.” The bootblack at Willard’s Hotel received a similar threat. Ben Butler opened a letter on which death’s heads and coffins had been scrawled. Thaddeus Stevens received a note saying he’d eaten the bread of wickedness and drunk the wine of violence and he’d soon reap the whirlwind. Benjamin Wade was told he’d be assassinated for sure if he became President. Wade replied he’d lived too long to be afraid.

  Civil rights activist and wealthy restauranteur George T. Downing headed the delegation, along with Frederick Douglass, that met with Andrew Johnson in 1866 to urge Johnson to grant black men the vote.

  Charles Sumner received more than one death threat. “The Ku Klux Klan send letters every day,” said his secretary, “fitted with gallows, coffins, skulls, daggers, and corpses, announcing to Charles that the avenger is on his track, and that he will be awakened at midnight only to find his room filled with masked figures, and to meet his doom at their hands.”

  Reports about this terrorist organization, whose name was as mysterious as its members—perhaps it referred to the sound that a cocked rifle made, several writers guessed—had been flooding the national press ever since the impeachment had begun. Conservatives, Democrats, Copperheads together dismissed stories about the Klan as a joke, a fairy tale, a Republican bogey contrived to “frighten old ladies in their tea-cups.” Republicans countered that the Ku Klux Klan had come to the assistance of President Johnson—in particular, to prevent black men from voting in the South. Presumably the organization had been initially conceived in New York and then implemented first in Pulaski, Tennessee, by well-know
n Tennessee bigots like Nathan Bedford Forrest, the notorious Confederate General of Fort Pillow infamy.

  To retain President Johnson in office was to give license to this secret organization, with its robed and masked men galloping at night, avenging the dead Confederacy and claiming to redeem it by sowing terror in the name of the government they cherished, a government for and by white men. That was the nub of the argument made by that dumpy, brash, and impassioned impeacher Benjamin Butler, who for the moment dropped all mention of technicalities.

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  GIDEON WELLES, THE glowering secretary of the navy, appeared in the Senate, bearded and growly and eager to talk. He’d been prepared by Stanbery, with a series of written questions about the cabinet’s response to the Tenure of Office Act: What had each secretary said about it? What had each said about those cabinet members appointed by Lincoln? Did you or any other cabinet member know if President Johnson had proposed to bring the Tenure of Office Act before the Supreme Court?

  Ben Butler popped up. Why should discussions that took place in the cabinet about the Tenure of Office Act be relevant, he objected. Why should cabinet members shield the President?

  Secretary of the navy under President Lincoln and a former Democrat, Gideon Welles had successfully enlarged the navy, and was a Johnson supporter who recorded in his invaluable if waspish diary the goings-on of the cabinet, both during the war and after.

  “Senators,” Butler turned to the chamber, “you passed this Tenure-of-Office act. That might have been done by inadvertence,” he conceded, and quickly added that “the President then presented it to you for your revision, and you passed it again notwithstanding his constitutional argument upon it. The President then removed Mr. Stanton, and presented its unconstitutionality again, and presented also the question whether Mr. Stanton was within it, and you, after solemn deliberation and argument, again decided that Mr. Stanton was within its provisions so as to be protected by it, and that the law was constitutional. Then he removed Mr. Stanton on the 21st of February, and presented the same question to you again; and again, after solemn argument, you decided that Mr. Stanton was within its provisions and that the law was constitutional. Now they offer to show the discussions of the cabinet upon its constitutionality to overrule the quadruple opinion solemnly expressed by the Senate upon these very questions—four times upon the constitutionality of the law, and twice upon its constitutionality and upon the fact that Mr. Stanton was within it.”