Nadler and The Johnson Fallacy

It seems that the Andrew Johnson trial is finally back in vogue. It just shows that, like ties, if you wait long enough everything comes back into style.

I have written about my disagreement with Harvard Professor Alan Dershowitz‘s reliance on the trial of Andrew Johnson for support of his theory that impeachable offenses must involve criminal acts. Now, I have to raise similar objections to the other side in its reliance on the trial, specifically the comments of House manager and House Judiciary Committee Chairman Jerrold Nadler.

In yesterday’s House manager arguments, Nadler stated the following:

In firing the secretary of War, President Johnson allegedly violation the Tenure of Office Act, which restricted the President’s powers to remove cabinet members during the term of a president who had appointed them.  The House of Representatives approved articles charging him with conduct forbidden by law, by action that is an abuse of power on its face.  The Senate acquitted President Johnson by one vote.  This is partly because it was a strong argument that the Tenure of Office Act, which President Johnson was charged with violating, was itself unconstitutional – a position that the Supreme Court later accept.

Of course, historians have noted a key senator appears to have changed his vote at the last minute in exchange for special treatment by President Johnson so perhaps that acquittal means a little less than meets the eye. . .

First, as I noted in criticizing the Dershowitz argument surrounding the Johnson trial, the “prevailing argument” was clearly that unconstitutionality of the Tenure in Office Act. I explored the case in my testimony before the House Judiciary Committee:

Radical Republicans and other members viewed Secretary of War Edwin M. Stanton as an ally and a critical counterbalance to Johnson. Johnson held the same view and was seen as planning to sack Stanton. To counter such a move (or lay a trap for impeachment), the Radical Republicans passed the Tenure of Office Act to prohibit a President from removing a cabinet officer without the appointment of a successor by the Senate. To facilitate an impeachment, the drafters included a provision stating that any violation of the Act would constitute a “high misdemeanor.” Violations were criminal and punishable “upon trial and conviction . . . by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding ten years, or both.” The act was repealed in 1887 and the Supreme Court later declared that its provisions were presumptively constitutionally invalid. Despite the facially invalid provisions, Johnson was impeached on eleven articles of impeachment narrowly crafted around the Tenure in Office Act. Other articles added intemperate language to unconstitutional limitations, impeaching Johnson for such grievances as trying to bring Congress “into disgrace, ridicule, hatred, contempt, and reproach” and making “with a loud voice certain intemperate, inflammatory, and scandalous harangues ….” 

The seven Republicans who voted to acquit Johnson were clearly responding to the unconstitutionality issue, which Justice Curtis emphasized in his defense of Johnson.

However, my greatest quibble is the reference to the question of a senator being paid off for his vote of acquittal. Nadler states that the vote might change our view of the outcome — suggesting that perhaps the Senate was prepared to remove on the basis of the noncriminal abuses. However, that ignores the real factor undermining the vote is the open animosity toward Johnson and the obvious unconstitutionality of the underlying law.

Moreover, the stated conduct that Nadler describes as “abuse of power” was more of a personal attack that was wildly out of conformity with the standard of impeachment like making “with a loud voice certain intemperate, inflammatory, and scandalous harangues ….”

Finally, the specific allegation of a bribed senator is largely based on speculation. The Senator is the famed Edmund G. Ross who said that voting for Johnson was like staring into his open grave and jumping. Historian Brenda Wineapple, the author of The Impeachers: The Trial of Andrew Johnson and the Dream of a New Nation, raised this allegation. However, as shown in a Newsweek interview, it is based on the fact that Ross later hit up Johnson for favors:

“There’s quite a bit of evidence, though it’s not conclusive in terms of money changing hands. Ross certainly got quite a number of favors for friends, and himself, after the vote. He kept going back to President Johnson, saying, ‘In consequence of my vote, I’d like this, this and this.’ Quite a number of things. And Johnson gave him everything he wanted. It was as if something had been set up.”

That is not a bribe for a vote. The vote had already been cast. It is not uncommon for senators to seek to leverage support on a variety of votes. It is poppycock to suggest that senators did not seek to remind Clinton of their support after his vote in subtle or gross ways.

My greatest concern was the suggestion that the Johnson trial is still precedent for showing that presidents can be charged with non-criminal conduct. The Johnson trial was a travesty from start to end. It was based on an unconstitutional law and prosecuted in a vicious and partisan way. It is only relevant as an example of how impeachment can be abused, as I previously wrote.

39 thoughts on “Nadler and The Johnson Fallacy”

  1. Leave it to Jonathan Turley to wave away the real issue underlying Johnson’s impeachment: he was trying to end Reconstruction and restore power to Southern whites. The Tenure of Office Act was part of Congress’s efforts to block him from doing so.

    Also, wasn’t Ross advised by a colleague even before the trial that if he voted for acquittal, he would be suspected of taking a bribe? In other words, this appears not to be a new charge against Ross’s conduct, and contrary to what Turley writes, the claim is not dependent only on his actions after the trial.

    Finally, read the three dissents (by Justices Brandeis, Holmes, and McReynolds) in the 1926 Myers v. United States decision, which in the course of rulng on a different law said in dicta that the Tenure of Office Act had been unconstiuttional, and you’ll find there were plenty of grounds to decide the other way.

  2. (music)
    Don’t know much about history…
    Don’t know much about geography…
    One and one and one is two…
    It’s a dumbass world for da Dems!

  3. “…prosecuted in a vicious and partisan way. It is only relevant as an example of how impeachment can be abused, as I previously wrote.” Well, now you have another example.

  4. Historically and politically, the Johnson impeachment is of no relevance here. People wanted Johnson out. Johnson didn’t get his own party’s nomination for President a few months later anyway.

    And the real issue surrounding Johnson’s removal was just a tad more serious. Here, the Democratic party has been scouring the landscape for charges to justify impeachment since before Trump’s inaugural — throwing the biggest post-election temper tantrum you’re going to see in your lifetime.

    1. Even before the 2016 election, some Congressional Republicans said that Hillary Clinton, whom they expected to win, would be impeached on her first day in office. There was even a National Review article that said Clinton should be impeached *before* the election.

        1. The point is that if it was fine for some Republicans to call for Clinton’s impeachment even before the election, it was fine for some Democrats to call for Trump’s impeachment after it.

          (Clinton Derangement Syndrome is quite the amazing phenomenon. Republicans made up so many lies about her for so long, having gone so far as even to investigate the White House’s Christmas card list in the 1990s, and yet they could never find any actual wrongdoing.)

      1. Well I’m talking about an orchestrated effort.. Not simply remarks.

        Having said that, you will get no argument from me that Congress embarrassed itself with the Clinton impeachment. And you had a situation where Ken Starr, like Robert Mueller, knew he didn’t have any criminal wrongdoing on the Clintons with regard to Whitewater within weeks, yet he kept that thing going on for years. Starr was an embarrassment to the judicial system as are the people involved in this farce.

        1. knew he didn’t have any criminal wrongdoing on the Clintons with regard to Whitewater within weeks,

          Not true. Starr was appointed to the position in May of 1994. Webb Hubbell pleaded guilty in December 1994. He secured indictments of the McDougals and Jim Guy Tucker in August of 1995. He secured convictions in May 1996. Susan McDougal went to prison for contempt in Sept. 1996 for her refusal to give immunized testimony before a grand jury. Starr completed an agreement with James McDougal for co-operative testimony in April 1997 (IIRC). McDougal died less than a year later, before he could testify. They were also collecting evidence from David Hale, but he was too tainted to use as a witness. NB, the convictions of Hubbell, Tucker, and the McDougals were for substantive offenses, not process crimes.

          1. In other words, you have no evidence for what you’re saying. The fact that the special council got convictions on people other than the Clintons is remarkably similar to people sticking up for Mueller.

            1. In other words, you have no evidence for what you’re saying

              YOU made an assertion about what Starr and his staff knew and did not know. I’m pointing out to you that the case was built over a period of more than three years, so, no they didn’t know what you insist they knew in the summer of 1994. (The missing Rose billing records were found in the White House residence in January of 1996; they had HRC’s fingerprints on them, and only her fingerprints on them). The killer blow in the case against the Clinton was the death of James McDougal in March of 1998, nearly four years after Starr was appointed to the position.

              This isn’t that obscure.

              1. I stated an opinion as to what Starr and Mueller knew. I’m reasonably confident of it, and I’m not planning on taking either one of them to court over it. It did and will play some role over how I vote.

  5. I hope that the Democrat Party is dissolved into nothing with the upcoming election in November. Its leaders are all self-centered crooks and liars.

      1. Elvis is not entirely wrong but nto quite. It is true the GOP has been forced to rid itself of the Democrat socialist controlled RINO segment and it is similarly true they lost their party when they nominated President Trump then withdrew support and had to be propped up by the largest voting block a coalition and it’s true that has forced change into something that in time will become the Constitutional Republic Party and the GOP will be a historical footnote.

        But it’s not true they dissolved into nothing as the left is busy doing at this moment because they have continued to support an antithetical foreign philosophy and anti American Political system without regard to the Citizens of the country and gone even deeper to dark side as Socialist Regressives the greater and lesser choices of evil.

    1. Agreed. The question is, can the nexus of interests for which the Democratic Party is an electoral vehicle be served by anyone not a crook and a liar. Theoretically, you’d think so. An older generation of liberals were wrong on policy questions and episodically insuffereble, but they weren’t crooks and liars in any systematic way, and some made positive contributions to the public weal (e.g. Nat Hentoff). Lot’s of problems with Jimmy Carter and Walter Mondale, but they were, as moral agents, a couple of notches above the current claque running the Democratic Party.

      1. Can anyone rightly say who is running the Dems right now? Several threads vying for control, but there’s a very real chance that two people not even in the party come down to be the final two in the primary. And either way, they’ll have to contend with the standard Repub left over refuse.

        1. Elvis – no one is running the Democrats right now. If you follow Tim Pool you realize how disorganized they really are, and he is on their side. There were shots fired by Warren and CNN against Bernie in another ambush. However, he is rising and she is fading. Bernie Bros will take to the streets if they think he got screwed over. Last time some ever voted for Trump. Biden has hit the iceburg, it is just a question of when he sinks. Bloomberg is buying votes. Hillary is attacking Sanders and Tulsi. Who did I leave out?

          1. Interesting thing is, every single one of them is leading Trump in polling. Nationally anyway. Trump is playing with the assumption that ’20 election will be as low turnout as ’16. He’s wrong of course, and his ‘just play for the base’ strategy will be exposed as an it’ll win one out of ten bad idea. Only question is how much damage he leaves in his wake.

            1. Actually, no. My bad! Tulsi isn’t leading Trump right now. When I read her name I mistakenly thought it was just the sound of me coughing up a hairball.

  6. Nadler is not the sharpest tool in the drawer which is why the supposed investigation was done by the Intelligence Comm.

  7. Thanks JT for your short and clear explanation of the Johnson affair. It is plain that the Johnson impeachment should not be a precedent for any subsequent impeachment process.

  8. Nadler & Trump feuds go way back to the 1990’s over development & real estate projects. Nadler didn’t like Trump during the 1990’s & doesn’t like Trump in 2020.

        1. What fascinates me is where things go when Trump invariably goes down for tax and insurance fraud. Won’t happen until he’s out of office, in other words — next year. But it will add an interesting twist.

          1. What fascinates me is where things go when Trump invariably goes down for tax and insurance fraud.

            Just keep tapping your ruby slippers, and maybe it will happen.

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