The Impossibility of Impeachment The New Republic / by Michael Kazin

The Impossibility of Impeachment
The New Republic / by Michael Kazin / 1h
Polling outfits routinely ask historians and political scientists to rate the presidents from worst to best. It’s an inherently frustrating exercise. Does “greatness” depend on what a chief executive accomplished or instead on his ability to bend Congress to his will and influence his successors? How should we evaluate a president like Lyndon Johnson, who signed such momentous—and durable—laws as those ensuring civil rights and launching Medicare, but who also sent hundreds of thousands of Americans to kill countless numbers of Vietnamese in a civil war that was none of our business? A scholar’s rating depends, in large part, on a judgment of what a president should have done as well as what he did. Evaluating those choices is a more meaningful enterprise than using political history to dash off a click-happy list of likes and dislikes.

THE IMPEACHERS: THE TRIAL OF ANDREW JOHNSON AND THE DREAM OF A JUST NATION by Brenda WineappleRandom House, 576 pp., $32.00
No occupant of the White House made terrible choices more consistently than Andrew Johnson. A century and a half later, his performance in the White House should appall anyone but a hardened racist. Weeks after Lincoln’s murder in April 1865, the newly inaugurated President Johnson began to treat former leaders of the South as if they were men of honor and standing, rather than traitors who had fought and lost a devastating war to preserve slavery. That spring and summer, Johnson pardoned thousands of former Confederate officers and politicians and appointed three of them to be governors of their states. He flatly refused to consider granting citizenship or the vote to any of the millions of people newly freed from bondage. Johnson’s policy arguably helped incite the white mobs who murdered scores of black men and women in Memphis and New Orleans in 1866. The president’s response to the massacres in Louisiana was to blame whites who supported black suffrage. “Every drop of blood that was shed is upon their skirts,” he snarled, “and they are responsible for it.”

Earlier that winter, a delegation of prominent African Americans, including Frederick Douglass, met with Johnson, whom they already had ample reasons to mistrust. They asked him to reconsider his opposition to giving their people the vote. But Johnson, who was born in a log cabin and learned to read only as an adult, could not tolerate even a politely stated protest from a group of black men better spoken and more erudite than himself. After they left, he reportedly snapped to an aide, “Those damned sons of bitches thought they had me in a trap.” He added that Douglass “would sooner cut a white man’s throat than not.”

Few of the Republicans who controlled Congress believed in the complete equality of the races. But most were determined that the black people who had made the Old South rich now deserved the same rights their former owners took for granted—rights they knew would require thousands of federal troops to guarantee. In 1867, they rejected the president’s leniency toward the erstwhile rebels and enacted their own plan for reconstruction, which shifted power to a coalition of Southern blacks, their white allies from the region, and “carpetbaggers.” Johnson vetoed every bill intended to achieve that purpose; Congress overrode him every time. He also railed futilely against the Fourteenth Amendment, passed overwhelmingly by both houses the year before, which established a federal right of citizenship and equal protection of the laws that no individual state could repudiate. When, in February 1868, the president violated a new law, the Tenure of Office Act, Republican leaders resolved to impeach and convict him.

Brenda Wineapple, author of books on such nineteenth-century icons as Hawthorne and Dickinson, is a gifted stylist whose knowledge of the politics of Reconstruction is both intimate and vast. In The Impeachers, she tells an elegant story stuffed with alluring character sketches and dramatic moments, both legal and political. It raises two big questions: Why wasn’t Johnson thrown out of office for making those choices, and should he have been? She answers the first with erudition and cogency. The second she essentially leaves open, reminding us that even some of the lawmakers who reviled Johnson hesitated to remove him. Their ambivalence helps explain why no president has ever been convicted of “high crimes and misdemeanors,” or why impeachment, often viewed as a necessity to stop a lawless leader, may prove almost impossible to execute successfully.

Impeachment certainly proved far messier and more difficult than Johnson’s fiercest opponents imagined. The problem began with the nature of the statute Johnson had flouted. The Tenure of Office Act, passed in 1867, prohibited the president from firing an official appointed during his term unless the Senate approved the move. The law was clearly intended to stop Johnson from scrubbing his Cabinet of Secretary of War Edwin Stanton, a Lincoln holdover who happened to be overseeing the Army’s deployment to Dixie, which the president had vetoed in vain. He fired Stanton and claimed the act was an unconstitutional curb on the powers of the executive; Johnson looked forward to challenging it in court. According to Wineapple, even Stanton had “doubted” the act’s “validity.”

Of course, what truly motivated Johnson’s enemies were principles of justice and morality forged in the crucible of civil war. The Tenure of Office Act merely gave them a way to entrap him. “We must see to it that the frightful carnival of blood now raging in the South shall continue no longer,” vowed Ohio Representative (and future president) James Garfield. The abolitionist firebrand Wendell Phillips asserted, “Impeachment is the refuge of the common sense of the nation, which in the moment of difficulty, says to the magistrate, you ought to have known by your common sense, and your moral sense, that this has unfitted you for your office.” Removing Stanton from his post without the Senate’s consent was just one of the eleven articles of impeachment brought against Johnson (all of which Wineapple helpfully reproduces in an appendix). But it was specific, arguably indictable, and the basis of most of the other articles. The overall charge that the president had abused his office depended on it.

In May 1868, following an exhausting eleven-week trial, the Senate acquitted Andrew Johnson—by a single vote. Newly emboldened, he issued a blanket pardon to anyone who had taken part in “the late insurrection” and even restored their property—not including former slaves, of course. But the Democrats, who had stood by him during the ordeal of impeachment, rebuffed his bid to win their presidential nomination. They knew that a rageful Southerner who had barely retained his office would have won few if any Northern states competing against Ulysses Grant, the military hero who had recently become a Republican.

While Wineapple’s sympathies are clearly with the impeachers, she carefully explains the flaws of their strategy as well as how the ambitions of certain powerful, putative friends helped defeat their purpose. Salmon Chase, the chief justice of the Supreme Court who presided over the trial, had once been a champion of abolition and a key member of Lincoln’s Cabinet. But since Lee’s surrender, Chase had increasingly favored treating former top Confederates with leniency, in part, because Democrats supported that policy—and he very badly wanted to be president. In fact, banks were already donating big sums to his campaign in waiting. So Chase turned down motions by the House managers of the trial to raise “questions of fitness, folly, or the autocratic abuse of power.” The chief would permit only evidence about a clear “breach of law.” This allowed any Republican senator who was uneasy about defining contempt for the Tenure of Office Act as a “high crime or misdemeanor” to consider allowing Johnson to keep his job.

With an economy of words, Wineapple captures the look and personality of pivotal characters in the drama. Senator Edmund Ross, the last of the ten Republicans who voted for acquittal to make his intentions clear, “was a political nobody who didn’t look a person in the face, dressed in black, and walked with a slouch.” William Evarts, the president’s lead attorney, was “detached and devious … a diminutive man with mushroom-colored skin.” For Wineapple, clothes always seem to offer a glimpse into one’s soul. Kate Chase Sprague, daughter of the chief justice, attended the first day of the trial sporting “fawn-colored silk, Etruscan earrings, and bangles of frosted gold.” It comes as little surprise to read next that “She had an appetite for the White House even larger than that of her insatiable father.”

What millions of Americans regard as a violation, a roughly equal number view as a strong leader blasting away at his enemies.

Ultimately, the whole impeachment affair had just a modest bearing on the vital question of who would hold power in the South. After his acquittal, Johnson had a mere ten months left in his term. His trial took place a full year after Congress had set up military districts in the former Confederacy, to protect the right of black men to vote and run for office and prevent the kind of bloody attacks that had occurred in Memphis and New Orleans. The Ku Klux Klan, established months after the war ended, tried to strangle the new order with acts of terror at the polls and in African American communities. During his first term, President Grant continued the policies of the Republican Congress and suppressed the Klan, although not the savage desire of Southern whites to exterminate “Negro rule.”

Without economic power, political rights are fragile things. When Congress in 1867 easily defeated a proposal to break up big plantations and distribute the land to black people who desperately needed it, the lawmakers all but ensured, quite unintentionally, a brutally unequal future in Dixie. “No people will ever be republican in spirit and practice where a few own immense manors and the masses are landless,” declared Representative Thaddeus Stevens, the radical congressman from Pennsylvania who sponsored the confiscation plan. The failure to supply former slaves with the resources on which to secure their economic liberty was critical to turning Reconstruction into what Eric Foner, its premier historian, calls “an unfinished revolution.”

Congress’s failure to impeach and convict Andrew Johnson still haunts our politics, particularly at a time when the 45th president appears to have escaped sanctions for his own flagrant misdeeds and has at least an even chance of winning reelection. Impeachment, as every pundit intones, is really a political matter rather than a legal one. What millions of Americans regard, echoing Wendell Phillips, as a violation of the nation’s “common” and “moral sense,” a roughly equal number view as a strong leader blasting away at his enemies. Numerous presidents have violated the spirit of the Constitution, if not always its letter. From Truman onward, they have sent Americans into combat without asking Congress for a declaration of war. From the end of Reconstruction into the 1960s, chief executives rarely took action to faithfully execute the equal protection clause of the Fourteenth Amendment when the rights of African Americans and other racial minorities were being violated.

Johnson’s impeachment and trial, as Wineapple narrates so well, spotlighted arguments between lawyers, although everyone knew that what was really at stake was the question of who should govern and for what ends. “That slavery and its effects lay at the heart of Johnson’s impeachment does not suggest that the verdict was unjust or the trial improperly conducted,” she writes. It does, however, show a profound disconnection between what transpired during those long, hot weeks beneath the Capitol dome in 1868 and the ongoing struggle taking place in the fields, streets, and polling stations of the South.

The same can be said about the conflict over the Mueller Report, which, at this writing, is still in spin. Like our current president, “Johnson was a proud, vain, and insecure man who distrusted almost everyone.” But unlike Trump, he had not been elected in his own right and lacked the ability to rally a substantial number of Americans to his side. That support insures that even if Mueller had found the 45th president guilty of breaking the law, he would still be tweeting lies from the White House and preparing to run what might become the most despicable reelection campaign in history.

Convicting Johnson would not have annulled his statements and the policies that encouraged those who had fought for slavery to build a new South that operated much like the old one. And his white supremacist beliefs lived on and prospered, even as commentators agreed that his presidency was an abject failure. One has to crush bad leaders at the polls. But as long as their ideas remain popular, the hope for a just nation will remain a dream deferred.

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