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 The act was repealed in 1887 and the Supreme Court later declared that its provisions were presumptively constitutionally invalid.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.