The Senate sided with Butler. Welles’ testimony about the cabinet’s discussion was deemed irrelevant, and although other members of the cabinet were ready to take the stand, there was no point. The President’s defenders said the cabinet had been muzzled.
But Butler was the man of the hour, the man who called witnesses, examined them, explained their testimony. Butler was the acute take-no-prisoners prosecutor rebutting with aplomb the President’s brilliant lawyers. Ready at all times with a joust, a jibe, a precedent, the man was cool, cheeky, and vain. Even Republicans who condescended to this stubby man with the pink pate, raised in a Lowell boardinghouse, were impressed. “Genl. Butler swallows and eclipses the other managers,” William Evarts admitted, “and without him they would have made but a poor figure.”
Evarts dismissed Gideon Welles. By April 18, both the prosecution and the defense had rested their case.
* * *
—
THE SPECTATORS WERE restless, the American public was restless, and everyone was tired. “Stick to the point, gentlemen,” Emily Briggs cried in frustration. Legal casuistry had dwarfed the real meaning of impeachment and its implications, all of which, again, had to do with responsibility: the responsibilities of a President, his responsibility to his office—and to the maintenance of its dignity; the responsibilities of Congress and its relation to public order when the relationship to the executive had broken down. And, again, there was the tacit issue too of what might be owed the four million recently enslaved people still deprived of political power.
The Senate changed its mind as often as the weather, said an exasperated Mark Twain, who left Washington for good.
On balance, the President seemed irresponsible, and his errors of judgment included a deliberate violation of law. For it seemed to the impeachers, and much of the public, that when he fired Stanton, Johnson did not then intend to bring the Tenure of Office Act to the courts. The courts were an afterthought. Plus, no court case could be made, in fact, while Stanton remained in office. And Stanton did remain in office. Then Sherman’s testimony had been damaging, for when the President offered Sherman the position of war secretary, he had not mentioned the courts, saying he had to get rid of Stanton for the good of the country, not to test the law. And Johnson seemed to think Stanton would comply and leave the war office.
As Moorfield Storey explained to his father, Johnson’s intention seemed to be to eject Stanton—“first by resignation, then under the Tenure-of-Office Bill, then in violation of it.” The violation included Johnson’s appointment of an interim war secretary—whom the Senate did not confirm. For when Stanton refused to leave his office, Johnson did not go to the courts. He simply replaced him with Lorenzo Thomas, whom he invited to the cabinet as war secretary.
Although the President’s son-in-law, Tennessee Senator David Patterson, who’d been residing in the White House, was now looking for a new place to live, William Evarts was supremely confident. Johnson would not be convicted. A friend warned Evarts not to count his chickens before they hatched, but Evarts believed that a good number of Republicans would prefer the status quo—and electing General Grant—to throwing Johnson out of office and putting in Benjamin Wade. Evarts was also quite aware of certain goings-on behind the scenes.
CHAPTER TWENTY-THREE
The Beginning of the End
“None are above the law; that no man lives for himself alone, ‘but each for all.’ ”
—JOHN BINGHAM
Both the impeachers and the defenders of the President expressed confidence and then doubt and then confidence again about the outcome of the trial. And they traded insults, propaganda, and innuendo. The President’s defenders belittled the peripatetic politicians in mangy suits who’d come from the South to Washington, squeezed themselves into cheap hotels, and hysterically declared that if the President wasn’t removed, a make-believe organization called Ku Klux Klan would devour all blacks. “The Dems pooh-pooh the KKK outrages just as they did the Black Ruffian outrages in Kansas,” said Schuyler Colfax, referring to the proslavery murders of the late 1850s. Impeachers insisted that if Andrew Johnson was acquitted, white Unionists and every black man and woman in the South was in mortal danger.
Less histrionically, inside the Senate the President’s lawyers intended to prolong the trial as long as possible and to pick off Republican senators who would side with them. With fifty-four men in the Senate, the impeachers needed a two-thirds majority—thirty-six votes, in other words—to convict the President. Only nineteen were needed for acquittal.
All nine Democratic senators would vote in a bloc for acquittal, and three very conservative Republicans could be counted on as voting in the Democratic column. That meant only seven more Republicans were needed to exonerate President Johnson.
Although Wendell Phillips assumed that prudent politicians like Representatives Elihu Washburne and John Bingham would never have voted for impeachment if they couldn’t count on the thirty-six votes necessary for conviction, Phillips worried that more delays would allow Johnson’s henchmen to chip away at the resolve of several Republicans. “Delays are dangerous,” Moorfield Storey agreed. Charles Sumner proposed that the proceedings begin at ten in the morning instead of noon and continue until six in the evening. The Senate voted against the motion, although in early April, Senators did consent to convene at eleven.
That vote once again demonstrated to Senate-watchers that not all Republicans were of the same mind. James Grimes, the burly Senator from Iowa known for his droopy mustache and muttonchops, had been an energetic foe of slavery, but his disposition toward most Radicals and his intimate friendship with William Pitt Fessenden left him unsure that the decision to impeach had been wise. Although he had backed congressional reconstruction ever since it was first proposed, impeachment seemed to Grimes the revolutionary design of anarchists. He also shared his friend Fessenden’s contempt for Charles Sumner.
Grimes didn’t much like Andrew Johnson either, and he did hope to curb the President’s recklessness. “What Republican will dare run the risk of being made responsible for AJ’s d—d brutal, hard-headed acts,” journalist Benjamin Perley Poore had wanted to know. “Acquit him, and he would act like a mad elephant who had had a fight with his keepers, and had conquered.” Grimes understandably worried that if conservative senators voted to acquit Johnson, the President might then encourage rebels to undermine reconstruction even more than they’d already done. There had to be another way, and Grimes thought he’d found one.
As chair of the Senate Naval Affairs Committee, Grimes had become good friends with Gustavus Fox, former assistant secretary of the navy, and he suggested to Fox, then in Washington, that if the President would promise to appoint “a man [as] Secy of War in whom the country had confidence, it would help him.” Fox told Gideon Welles what Grimes had suggested, which is where the possible nomination of General John Schofield as war secretary entered the picture. As war secretary, Schofield might prevent the President from acting rashly. He was no Stanton, to be sure, and he wouldn’t have been the first choice of either Johnson or the Radical Republicans—or perhaps of many moderates—but impeachment had changed everything. Though a middling general, Schofield could be trusted, and wavering senators might be inclined to acquit the President if they didn’t have to agonize about the consequences. These wavering senators, Edwin Stanton had heard, were Lyman Trumbull, Jim Grimes, and William Pitt Fessenden.
Chair of the Joint Committee on Reconstruction, William Pitt Fessenden of Maine had briefly been Lincoln’s treasury secretary before returning to the Senate. Increasingly disgusted by President Johnson, he tried to head off the radical measures of Charles Sumner, whom he disliked.
Grimes evidently conferred with Fessenden about the plan to nominate Schofield, and the two of them contacted William Evarts. On the morning of April 21, the day before closing arguments were to begin, Evarts sent a
note requesting that Schofield meet him at the bustling Willard’s Hotel, where Evarts had taken rooms. Evarts told Schofield that he wished to discuss the safety of the country, the preservation of the Constitution, and Andrew Johnson. “A majority of Republicans in both houses of Congress and throughout the country now regret the commencement of the impeachment proceedings, since they find how slight is the evidence of guilty intent,” Evarts said. “But now the serious question is, how to get out of the scrape? A judgment of guilty and removal of the President would be ruinous to the party, and cause the political death of every senator who voted for it as soon as the country has time to reflect upon the facts and appreciate the frivolous character of the charges upon which the removal must be based. The precedent of the impeachment and removal of the President for political reasons would be exceedingly dangerous to the government and the Constitution; in short, the emergency is one of great national peril.”
National peril: how could Schofield refuse? And if he saved the nation, he could pave the way to Grant’s election. Schofield said that before he consented, he had to confer with General Grant. Evarts reluctantly agreed.
That evening after dinner, Schofield and Grant talked about Evarts’ proposition without naming Evarts as its author. Certain that Johnson would be convicted and that Benjamin Wade, as the new President, would be hard-pressed to assemble a new cabinet quickly, Grant told Schofield that he had no objection to him as war secretary.
Schofield returned to Willard’s about eight o’clock, and when he and Evarts talked, Evarts said that although he wasn’t at liberty to provide the name of “prominent Senators” who now regretted impeachment, he did say that he feared for the life of the Republican party. As war secretary, Schofield could preserve it, thus ensuring Grant’s election while restraining Johnson if Johnson remained in office. Schofield went back to Grant, who said that under the circumstances, Schofield had no choice but to accept.
Johnson, who had gone along with the plan, withdrew his earlier nomination of Thomas Ewing as war secretary, which the Senate had ignored, and nominated John McAllister Schofield on Friday, April 24, two days after the closing arguments had started. But the appointment made to allay the fears of such moderates as Grimes, Fessenden, and Trumbull suddenly alarmed General Grant. Johnson would be acquitted, and there would be no way to stop him. As if waking to the shenanigans—and the dangers of Johnson staying in the White House—Grant dashed off a confidential note to Schofield: Schofield should renege.
It was too late.
* * *
—
“HOW DULL WASHINGTON would be without the Impeachment Trial,” a spectator sarcastically remarked. “It quite takes the place of morning receptions.” The days dragged on. The Senate had decided to hear anyone on the defense or prosecution teams who wished to speak in closing. General John Logan submitted his speech in writing, and Benjamin Curtis would soon hurry back to Boston, but the others wanted an opportunity, one last opportunity, to talk for or against conviction.
George Boutwell was the first manager to address the Senate on behalf of conviction. Conviction of the President would guarantee the safety of the nation, no small thing, precisely because the President had not faithfully executed his constitutional obligation to execute the law. Rather, Johnson had seized, or had attempted to seize, a government office.
As for the argument that the President had consulted his cabinet about the Tenure of Office Act, Boutwell said that Johnson had consulted his cabinet the way Hamlet consulted Polonius—to hear what he wanted to hear. Boutwell then offered a forensic analysis of the President’s power to remove or fill vacancies, of the Tenure of Office Act, of its applicability to Stanton, and of the President’s alleged violation of his oath of office when he dismissed Stanton. Johnson’s alleged purpose to test the law in the courts was simply a pretext. If Johnson had wanted to test the law, he could have instituted proceedings earlier with what is called a quo warranto against Stanton—that writ, challenging Stanton’s right to hold on to his office, would have immediately referred the matter to a court. Johnson had not done this.
Boutwell bored the listeners, who were again hoping for fire and brimstone, and not finishing his speech before adjournment, the next day he offered a specific chronology of events, lest anyone had forgotten: Johnson’s appointment of Grant as interim war secretary; Johnson’s sacking of Stanton; Johnson’s appointment of Lorenzo Thomas as interim war secretary; Johnson’s nomination of Thomas Ewing as secretary of war. Boutwell proceeded to discuss the impeachment articles, one by one. He cited instances when federal judges had been impeached and demonstrated how they might be relevant to the presidential impeachment. And for those listeners growing impatient, he ended his oration with a rambling set of images: “Travelers and astronomers inform us that in the southern heavens, near the southern cross, there is a vast space which the uneducated call the hole in the sky, where the eye of man, with the aid of the powers of the telescope, has been unable to discover nebulae, or asteroid, or comet, or planet, or star, or sun,” Boutwell declaimed.
“If this earth were capable of the sentiments of justice and virtue,” Boutwell continued, summoning all his strength, “it would heave and throw, with the energy of the elemental forces of nature, and project this enemy of two races of men into that vast region, there forever to exist in a solitude eternal as life.”
William Evarts turned to Benjamin Curtis. “I’ll put Boutwell into that hole in the sky so that he’ll never get out of it again,” he murmured.
Then and later Boutwell’s summation was widely mocked, but if it offered skeptics a good laugh, it also revealed the extent of the man’s despair—and the depth of his conviction that Andrew Johnson was a very guilty man.
* * *
—
“WHO IS ANDREW Johnson?” shouted the member of the President’s defense team from Tennessee who, up to this point, had not opened his mouth. Thomas Nelson rose to his feet and, according to Emily Briggs, this old-timey semi-rebel defending Johnson mistook the Senate for a congregation of Tennessee sinners. Preacher Nelson cajoled, censured, and unwittingly entertained. Over and over he bellowed, “Who is Andrew Johnson?” and over and over, he answered his own question with somersaulting adjectives: undismayed, unfaltering, unsubdued, unbent, unbroken, unawed, unterrified.
Several members of Congress softly tiptoed out of the chamber.
And with a rhetorical gambit that virtually conceded the case, Nelson asked, “Suppose he committed an error; suppose he is wrong; suppose Congress is right.” Co-counsel William Groesbeck was offended. Nelson was assuming the President might actually have broken the law.
Nelson swiftly returned to his tumble of obsequious compliments. “In the name of all that is sacred, can anyone say he is a traitor to his principles, or a traitor to the party that elected him?” Nelson roared. No: the managers were the revolutionists, dangerous to the country, dangerous to liberty, and dangerous to the government that they would gladly overthrow. They were the very men who’d excluded the Southern states from the Union.
Nelson was saying exactly what the President wanted him to say and probably what Johnson had instructed him to say, particularly about the President’s bravery and sterling character. This oratorical encomium continued the next day, Friday the 24th, when Nelson enumerated, as George Boutwell had done, the articles of impeachment, and concluded that nothing the President had done or said could rightly be considered a high crime or misdemeanor.
The galleries were almost empty. By the time Thomas Nelson finished, the managers and even the defense had slipped out, leaving only Butler and Benjamin Curtis behind. It was widely thought that Nelson had damaged the President’s case. But the next day, Saturday, the President’s able lawyer William S. Groesbeck hoarsely characterized Johnson as a conciliator, a reconciler, a kind and forgiving man whom the Senate could embrace. And with that description of Johnson, in a r
elatively short speech Groesbeck systematically refuted the argument that a crime could be committed without motive—and that, of course, Johnson’s motive was pure.
Groesbeck also restated the now familiar argument that the Tenure of Office law, a law of doubtful construction, did not apply to Stanton, who had been appointed by Lincoln, or at the very least could easily be construed that way. But even if the law did apply to Mr. Stanton, was Johnson’s removal of Stanton a criminal act?
Groesbeck cleverly argued that it was not—that, in fact, Johnson acted reasonably and with the purest motives when he questioned the constitutionality of a law that was in any case open to more than one interpretation. He argued that even if the President did not possess the power to remove Stanton, as many of the managers had claimed, there were established constitutional opinions concluding that he did. As Groesbeck pointed out, referring to the creation of executive departments in 1789, Congress had discussed whether the President could remove department heads, and the result of that debate was inconclusive.
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