The Impeachers

by Brenda Wineapple

  “Is the Senate prepared to drag the President in here and convict him of crimes because he believed, as the Supreme Court believed, as thirty-eight of the thirty-nine Congresses believed? That is the question.” The answer was evident. “In the condition of Andrew Johnson you can find no criminality in what he did,” Groesbeck asserted. Johnson did not use force; he did not conspire. What did he do? “He tried to pluck a thorn out of his very heart.” He had to act the way he did to test a law that Johnson’s own cabinet thought dubious—although the Senate in its wisdom had refused to hear testimony from all the members of that cabinet. Thus if the President had authority to fire Stanton and appoint Thomas, which Groesbeck said the President believed he had, then eight of the nine articles of impeachment immediately fall by the wayside.

  A few of the managers congratulated Groesbeck on his speech.

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  HIS CHEEKS SO hollow that his bones seemed to be poking through the skin, Thaddeus Stevens faced the Senate and the galleries, spurred on by the trial. With some trouble, he read his prepared remarks and the people in the galleries had to lean forward in their seats, cupping their ears. In minutes, his voice completely gave out. He handed his speech to Ben Butler to read aloud. And yet, despite the pallor and rasping whisper, there was still something rugged about Thad Stevens, something that despite his obvious frailty still inspired both adulation and contempt, detractors labeling him a malignancy fueled by spite and admirers hailing him as the principled and unfailing avatar of justice.

  His intention was to discuss only the eleventh omnibus article, which he had urged Butler to write, and he easily demolished Groesbeck’s argument for the President’s defense, noting that theoretical debates about whether a President could remove an executive officer were moot after Congress had passed the Tenure of Office Act. For Stevens did not doubt that Johnson had broken the law. After all, in his correspondence with Grant, Johnson had admitted that he’d wanted Stanton out of office. As for pretending that Johnson wanted to test the Tenure of Office Act, what is that, asked Stevens, except a tacit admission of malfeasance? What if Andrew Johnson, when he swore his oath of office, had said, “Stop; I have a further oath. I do solemnly swear that I will not allow the act entitled ‘An act regulating the tenure of certain civil offices,’ just passed by Congress over the presidential veto, to be executed; but I will prevent its execution by virtue of my own constitutional oath.”

  Besides, where in the Constitution does it say that the President is “to search out defective laws that stand recorded upon the statutes so that he can advise their infraction,” Stevens trenchantly wondered. If the President did not want to execute the laws of Congress, he should have resigned.

  The real issue was reconstruction, Stevens went on to explain. It had always been. For Johnson had encouraged defunct rebellious states to live as unjustly as before and as unwilling to create a free and fair country. In fact, he had actually directed these same states to oppose all laws intended to remake the nation free and fair forever.

  He may have been ill, but Thaddeus Stevens remained Thaddeus Stevens.

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  SPECTATORS STILL HOPING for the rocket’s red glare, especially from the mordant Thaddeus Stevens, were again disappointed. But at least Stevens had been brief. “This trial has developed in the most remarkable manner the insane love of speaking among public men,” James Garfield complained. “Here we have been wading knee deep in words, words, words, for a whole week.”

  The prosecutor Thomas Williams followed Thaddeus Stevens, and though his argument for conviction seemed a bit threadbare, Williams passionately confronted Thomas Nelson, asking not who Andrew Johnson was, but who Johnson is. What has he done since becoming President? He did not convene Congress after Lincoln’s assassination but rather set up, by himself, state governments in the former Confederacy. He laid out qualifications for their voters. He determined the conditions for their admission into the Union. He created government offices and packed them with former rebels legally banned from public service. He usurped Senate privileges by appointing government officers during its recess and then refusing to nominate them formally, so as to bypass Senate confirmation. He stripped the Freedmen’s Bureau of its endowment and restored to the rebels the land they’d forfeited. He insulted Congress by saying reconstruction belonged to him alone and that Congress had no legislative right or duty to interfere. He arraigned Congress as revolutionary and treasonous. He abused his veto power and tried to persuade the states formerly in rebellion from accepting the Fourteenth Amendment, and he winked at—if not encouraged—the murder of loyal citizens by Confederate mobs, particularly but not exclusively in New Orleans. He had soaked the streets with the blood of our citizens.

  That is the real Andrew Johnson, said Thomas Williams. Andrew Johnson was the man who had effectively “reopened the war, inaugurated anarchy, turned loose once more the incarnate devil of baffled treason and unappeasable hate, whom, as we fondly thought, our victories had overthrown.” And if these crimes weren’t enough, Andrew Johnson had unlawfully attempted to remove the rightful secretary of war and replace him with his own flunky.

  Given this, given that Andrew Johnson had demeaned himself, given that he did not respect the laws or those men who made them—that he in fact encouraged disobedience to them and that he with all his might had opposed the restoration of peace by arrogating power to himself—the republic was no longer safe with Johnson at the helm. And since we care about the nation’s safety and the rights of its citizen, Williams insisted, Andrew Johnson must be convicted.

  For the nation is too great, Williams concluded, ever to be affected by the loss of one man—even if that man is a very great President, like President Lincoln. And if you’re tempted by Mr. Nelson’s plea for mercy, consider the men and women to whom no mercy was shown, people piled into carts like swine during the bloodbath that was Memphis, during the holocaust in New Orleans, during the violence and murder and assassination still occurring daily in the South.

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  IF THOMAS WILLIAMS blew hot, William Evarts blew cold. At half past two in the afternoon of April 28, Evarts rose to speak as if he were the guest of honor at a legal banquet.

  Representing himself as an objective authority, above the fray of a very frayed politics, he declared that he was not a Tennessee partisan, like Nelson, or even a presidential sympathizer. Rather, he had come to the defense table merely to defend the Constitution.

  Holding notes that he drew out of one of the dozen envelopes he carried—though he seldom referred to them—Evarts talked interminably, or indefatigably, according to one’s point of view, as if he could secure acquittal merely by the length of his argument. It lasted fourteen hours stretched out over four days.

  Evarts did at times divert his listeners, especially when he mercilessly punctured Boutwell’s bloated astronomical metaphor. “Indeed, upon my soul, I believe he is aware of an astronomical fact which many professors of that science are wholly ignorant of,” Evarts said. “Mr. Manager Boutwell, more ambitious, had discovered an untenanted and unappropriated region in the skies, reserved, he would have us think, in the final councils of the Almighty, as the place of punishment for convicted and deposed American Presidents.”

  Chief Justice Chase seemed to snicker.

  Evarts skewered Boutwell several minutes longer before launching into his central defense, and much as if he were lecturing a classroom of students, he painstakingly explained the responsibilities of the Senate during peacetime, as if no one knew them, and the gravity of an impeachment proceeding. He wondered aloud if the three branches of government could stay separate, distinct, and balanced when provocative words like “traitor” and “rebel”—a lexicon inappropriate to peacetime—were so casually tossed around after the war. Political slogans overpower reason. “Cardinal Wolsey said that in p
olitical times,” Evarts reminded his listeners, “you could get a jury that would bring in a verdict that Abel killed Cain.”

  The war had debased public discourse, but the issue was not language, or at least not language alone, even though the language in the Tenure of Office Act was ambiguous, and this was an important fact. For while Evarts believed the Tenure of Office Act was unconstitutional, he said its language was so unclear that the Senate couldn’t possibly hold the President guilty for violating it. Didn’t the President have the right to interpret the Tenure of Office Act, Evarts rhetorically asked. And besides, if the law was unconstitutional, as Evarts believed, then no one could violate it; unconstitutional law is not binding to the President or anyone else. The President, like any citizen, had the right to test the constitutionality of a law, and he was not endangering public safety by doing so.

  Evarts was in his element: political, literary, and idiomatic discourse deftly interwoven. At every turn, he swapped logical argument for down-home anecdote and braided them together with lines from the Bible or the poet William Cowper or Daniel Webster. And he analyzed the speech of others—that is, of the President. The President had spoken intemperately, he admitted, but his unfortunate statements had occurred during impromptu speeches, when he’d become irritated. Compare this with the diatribes of congressmen. “Let him who is without sin cast the first stone,” Evarts cried with mock solemnity.

  The galleries, bored much of the time, snapped to attention. Evarts quoted from the Honorable Charles Sumner’s diatribe against the President, whom Sumner had labeled “an enemy of the people.” He noted that Ben Butler had once accused John Bingham of spilling the blood of Mary Surratt—and that Bingham had called his newfound friend Ben Butler “a man who lives in a bottle, and is fed with a spoon.” (Laughter.) Evarts said he didn’t know what Bingham meant (more laughter), but he did know that name-calling was standard practice in the House. And do not forget, Evarts calmly observed, that these gentlemen, Benjamin Butler and John Bingham, had indulged in such behavior during a discussion of “charity.” (Laughter again.) “Charity vaunteth not itself, is not puffed up.” (Even more laughter.)

  Bingham forced a smile. Butler, head in hand, sat poker-faced.

  But Evarts was deadly serious when he said that the Senate was bound to observe rules of law. The court of impeachment was not a law unto itself, as Butler had claimed. It was a court, and as a court, if it did not proceed as an altar of justice, it would become an altar of sacrifice. But sacrifice the President? For what crime? Had Johnson surrendered a fleet? Abandoned a fort? Betrayed the country to a foreign state? Fleeced the government? No, President Johnson had removed a member of his cabinet, and he had appointed an interim replacement.

  Although the managers claimed Johnson had violated a 1795 statute that limited an interim term to six months, Evarts accused the Senate of not having considered that law, back in 1863, when it honored Lincoln’s request to grant the President the authority to make interim appointments. So the President had violated nothing. And had the President conspired with anyone? No, of course not. Nor was there any preparation or meditation of force, any application of it, any threat or expectation of it.

  In conclusion, on Friday, May 1, Evarts offered a last plea, this time with emotion:

  And this brings me very properly to consider, as I shall very briefly, in what attitude the President stands before you when the discussion of vicious politics or of repugnant politics, whichever may be right or wrong, is removed from the case. I do not hesitate to say that if you separate your feelings and your conduct, his feelings and his conduct, from the aggravations of politics as they have been bred since his elevation to the Presidency, under the peculiar circumstances which placed him there, and your views in their severity, governed, undoubtedly, by the grave juncture of the affairs of the country, are reduced to the ordinary standard and style of estimate that should prevail between the departments of this government, I do not hesitate to say that upon the impeachment investigations and upon the impeachment evidence you leave the general standing of the President unimpaired in his conduct and character as a man or as a magistrate. Agree that his policy has thwarted and opposed your policy, and agree that yours is the rightful policy; nevertheless within the Constitution and within his right, and within his principles as belonging to him and known and understood when he was elevated to the office, I apprehend that no reasonable man can find it in his heart to say that evil has been proved against him.

  The strategy was brilliant: to rouse emotion in his audience by playing on Republican ambivalence, Evarts provided moderates and even radical-leaning Republicans a way out of their dilemma, which was in effect to respect and preserve the office of the presidency even though they disapproved of Johnson for his crudeness, his bias, his obstructionism, and his disdain for a legally reconstructed nation.

  Evarts thus manipulated fellow Republicans, speaking for those who, like himself, thought Johnson a boor who had actually harmed the peace but who also believed that his conviction would destroy the party. He manipulated fellow Republicans who feigned contempt for politics and political rhetoric, knowing that their contempt was theater, artfully staged. He even manipulated those Republicans who believed Johnson wanted to reinstate slavery by another name, for he implicitly asked them to remember who Johnson was: a man without learning, never having enjoyed a day’s schooling, always devoted to the state and to its citizens, always a public servant, always struggling against aristocratic influences, always faithful to the common people, and while he was no theorist or fancy philosopher, he had been forged in that furnace of Tennessee politics and firmly and forcefully adhered to the Constitution—yes, perhaps more than the Declaration of Independence, for sure—but he loved the country as much as they did.

  Exploiting the Senate’s fear of rocking the boat and its equally real commitment to the Union and its perpetuation, Evarts was ready to rest. “Can we summon now resources enough of civil prudence and of restraint of passion to carry us through this trial,” he asked, “so that whatever result may follow, in whatever form, the people may feel that the Constitution has received no wound!”

  Mary Clemmer Ames reported that Evarts’ labyrinthine sentences so exasperated listeners that in the galleries men and women spread their lunch on tissue paper and chatted as they nibbled their sandwiches. “It seems inert,” George Templeton Strong conceded, “as an ounce of Epsom salts dissolved in ninety gallons of dishwater.” William Lloyd Garrison remarked that Evarts’ speech seemed to begin and to end without any real point—if, that is, you could say it ever ended. “Fourteen mortal hours,” he complained. And Evarts’ mockery of the managers made Moorfield Storey cringe. “He contrived in a gentlemanly way to say things more uncalled for and in worse taste than anyone else during the trial, if we make a possible exception in favor of General Butler,” Storey noted.

  Wendell Phillips loathed the slick Evarts too much even to endure his speech, though he probably did read it; he wouldn’t give Evarts the satisfaction of saying so—or having to comment on it. “No rule of the profession obliged him to take the President’s case,” Phillips also noted with bite. “His doing so will, rightfully, do more to intensify and deepen the popular belief that lawyers have no consciences.” In this, he echoed the sentiment of other Radicals who believed, wrongly as it turned out, that Evarts had dug the grave of his own reputation.

  Yet Radicals admitted that Evarts had performed well even if he hadn’t grappled with the central questions, like the removal of Stanton, which he seemed to consider trivial. Groesbeck had done a better job of this.

  But Secretary of State William Seward was greatly relieved. The day after Evarts began his speech, Seward visited him at Willard’s Hotel. “Ah, Mr. Evarts,” Seward reportedly said, “the country is safe.”

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  “MR. STANBERY IS to speak on the trial, & I may go in & hear h
im a few minutes,” Walt Whitman told his mother. “But I guess I shall spend my half-holiday mostly in jaunting around in the open air.” Whitman wasn’t the only one to prefer open air. Stanbery was a yawn.

  Having pulled himself out of his sickbed, he insisted that if the President was convicted, “the strong arms of the people” would then raise him up, “and we shall live to see him redeemed, and to hear the majestic voice of the people, ‘Well done, faithful servant; you shall have your reward!’ ” After the opening fanfare, Stanbery seemed as drained as his listeners. “Most men prefer to be deceived, cheated, anything rather than to be bored,” one spectator carped.

  And now the prosecution faced the difficult task of summarizing their case. John Bingham of Ohio, reluctant impeacher but the man who’d helped craft the Fourteenth Amendment—and the man who vigorously opposed impeachment when it first reared its head—was chosen to deliver the managers’ finale. Earnest, serious, and although a man with his hand on the brake, whatever Bingham undertook, said an observer, “must be carried out to the bitter end.”

  On May 4, Bingham attracted the throngs of spectators that Stanbery had driven from the galleries. Neatly dressed in a new coat, Bingham no longer looked as if he needed a shave, though he seemed hunched over from the weight of the past weeks. He had come to the impeachment trial neither as a partisan nor as a man with a chip on his shoulder, he said, but as a full-throated patriot who would refuse to stoop to trifles—like the long debate about whether for the purposes of impeachment the Senate was a court. He could dispense with the argument simply by quoting the Constitution, which stated, “the Senate shall have the sole power to try all impeachments.” That’s what Butler meant when he said the Senate was not a court: the Senate is the Senate, and as the Senate, it possessed the power to convict or acquit the President.