Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy (23 page)

The prosecution threatened to become a Dickensian satire of itself. The ratio of procedural scuffling to actual testimony was soaring. Topping off the chaos was the weird vision of Adjutant General Thomas buzzing around the building in his full dress uniform. Having been advised that he might be called as a prosecution witness, Thomas restlessly wandered the Senate Chamber, flitting from the gentleman’s gallery to the ladies’ gallery to the press gallery.

At the end of the second day of evidence, Butler caught a small break. His witness was an ingratiating gentleman from Delaware, George Karsner, who had encountered Thomas at a White House reception on March 9. Butler summoned Karsner to testify that Thomas promised to kick Stanton out of the War Department, a shred of evidence of barely marginal interest. Karsner explained that he exhorted Thomas (a fellow native of Delaware), “General, the eyes of Delaware are on you!” The phrase brought a roar of delight from the entertainment-starved chamber. The chief justice laughed until he shook. It became a catchphrase for the impeachment season, somehow capturing the contrast between the trial’s quotidian reality and its epochal significance.

After Karsner, Butler’s case slid downhill. A powerful thunderstorm rattled the Capitol building on Thursday, April 2, blowing dust through its corridors. Black clouds darkened the Senate’s skylights, leaving the chamber dramatically lit by gas lamps during the daytime. Another congressman testified about the faceoff between Thomas and Stanton. General Emory of the Washington garrison and his senior aide gave testimony that did not really support the ninth impeachment article. Then the managers began a parade of ever more dreary witnesses. Some testified about the form of commissions issued to executive officials. More described their shorthand practices in recording the president’s speeches. Butler’s attention to such minute points reflected the practices of a time when most documents were handwritten. Forgery and misrepresentation were constant risks. Still, with defense lawyers launching objections at will, the case slowed to a crawl. This was not the “railroad speed” promised by Butler; it was tedium. As one Radical wrote in dismay, “What bores us, disgusts us.”

Butler even offered evidence surrounding the unsuccessful appointment of Edmund Cooper as assistant treasury secretary. Noting Cooper’s close ties to the president, Butler offered a convoluted motivation for Cooper’s appointment. According to the House manager, Johnson wanted to place “his man, his Secretary” at Treasury so Cooper could approve expenditures to be incurred by a future war secretary whom Johnson would appoint illegally to replace Stanton. Butler insisted that Cooper’s appointment violated the Tenure of Office Act. The president’s lawyers replied that Cooper’s appointment had nothing to do with the offenses described in the impeachment articles. The Senate agreed.

Like every trial lawyer, Butler wanted to end his case on an upbeat note. His final crescendo came from a letter sent by Treasury Secretary Hugh McCulloch in August of 1867, when Johnson suspended Stanton. The letter stated that Stanton was suspended under the Tenure of Office Act, directly contradicting the assertions of the president’s lawyers that Johnson had acted under his constitutional powers. The defense, caught flat-footed, reacted with a consternation that had to delight the managers. With this modest flourish, the direct evidence against Andrew Johnson was closed.

The Senate adjourned until the next Thursday, giving the president’s lawyers three extra days to prepare their defense.

Republican newspapers declared victory. The managers, according to the
Philadelphia Press
, “demonstrated beyond doubt or cavil the truth of every assertion contained in the impeachment articles.” Other newspapers disagreed. “It is very generally conceded,” the
New York Herald
reported, “that the evidence in the impeachment trial is too weak to hold water.” Stanberry, maintaining the defense position that an impeachable offense must be a crime, claimed that a court would dismiss the managers’ case for failing to prove the president had criminal intent when he sent Thomas to replace Stanton.

Even Democrats acknowledged that Butler had proved to be a quick-witted and tenacious advocate. Perhaps, on the whole, too tenacious. Many expressed surprise at the near-total eclipse of the other House managers. “Mr. Butler looms up as the one managing brain,” a correspondent observed, “while the unfortunate Mr. Bingham and Mr. Wilson are proportionately dwarfed.” Thad Stevens, who “uses stimulants [liquor] constantly, and is failing every day,” was declared “practically defunct.”

Butler had been everywhere, doing everything. He gave the opening statement, questioned every witness, and argued most of the legal issues. In the mornings, before the Senate convened, he took informal statements from potential witnesses. These sessions explored the Treasury Department’s gold-trading practices and the president’s opposition to the Fourteenth Amendment. Butler fired off a letter complaining that Treasury workers were helping the defense by searching records through the night, an effort that was risking fire in the archives. His spies prowled the city. One rummaged through William Evarts’s wastebasket in his hotel room—a ploy Butler boasted about.

Butler’s whirlwind of activity produced not very much. What facts, after all, had his twenty-three witnesses proved? That Lorenzo Thomas had acted foolishly and said foolish things? Few would have disputed that proposition before the trial began. In truth, Butler was banging through the evidentiary trees, moving from one to the next with panache, but without much sense of the forest. As he had promised, he performed as though he were trying a simple case of horse-stealing, according to judicial rules, but this was a presidential impeachment trial in the United States Senate. The verdict was going to be a political one. Well over two-thirds of the senators did not like Johnson and wished for an end to his presidency. Butler’s fine legal points were of no importance to the political calculations each Republican senator would make. The prosecution needed to give those senators reasons to vote the way their hearts told them they should—for conviction.

Stevens’s Article XI offered a road map of such arguments: the president usurped congressional powers in 1865 when he created Southern state governments; he was undermining the Reconstruction laws. These were arguments with visceral appeal to Republican senators. Instead, Butler achieved only delay, frustrating his supporters in the Senate. It was a miscalculation that the managers would compound in the coming weeks.

Butler participated in a very odd moment at a dinner the night after he closed his evidentiary case. It was a high-toned affair, including the British ambassador and House manager Boutwell. Also present was the urbane defense lawyer from New York, William Evarts, who had tormented Butler through much of the week. Mellow with good food and strong drink, Butler observed to his fellow gladiator that he rather wished he was on the opposite side of the trial, defending the president. Evarts matched Butler’s whimsical mood, suggesting that he, too, would happily change sides in the case.

As Evarts’s remark implied, it was not all hearts and rainbows on the defense team. The major problem continued to be the client. Johnson’s feelings were raw, his temper short. He was beset by fears of all sizes, from the apocalyptic to the trivial. The times matched the biblical prophecy, he told Colonel Moore, “when the devil was to be let loose and would roam among the people.” He complained when his lawyers requested help from the White House staff, pointedly asking Colonel Moore why “some people” wanted others to do their work for them? The sight of a crew of blacks working on the White House grounds triggered an eruption. Johnson demanded to know whether any whites still worked on the White House staff. Moore despaired of his employer’s “morbid distress and feeling against the negroes.”

The president’s anxiety would not go away. He compulsively reviewed with his aides the characters of various senators, predicting grim consequences that would befall certain of them if the impeachment succeeded. Johnson assigned an aide to prepare a summary of the ghastly fates suffered by the English judges who signed the death warrant of King Charles I of England in 1649. He seemed to take comfort in their hideous ends.

Falling back on old habits, Johnson disobeyed his counsel and granted two interviews to a favored reporter. On the Sunday night before Butler’s opening address, the reporter found the president to be despondent. Four nights later, presidential spirits had revived. He was “not only confident, but combative.”

The president used the occasions to offer his own testimony on the facts in the case, free from the awkwardness of being under oath or facing cross-examination. Notably, he savaged his own appointee as war secretary, then turned on his bête noire, General Grant.

Lorenzo Thomas, Johnson told the reporter, “seems to be a queer old gentleman.” Twice the president implied that the adjutant general’s taste for liquor was the problem, describing Thomas as “refreshed” and “elated” over his appointment as interim secretary of war. “You know how it is with these military men,” he added, “how much style they like to put on, and how much fuss they like to make, and how they like to show their authority.” Johnson insisted he was not responsible for Thomas’s statements or actions “independent of my orders.”

The discussion of inebriation led the interviewer to question Johnson’s own condition when he gave the extravagant speeches during the Swing Around the Circle in 1866, which were the basis for the tenth impeachment article. The president denied being drunk during those addresses, adding, “I didn’t drink half as much as one or two others, about whose condition nobody dares to say a word.” The reporter pressed Johnson. Was he referring to the person who had left the tour to go to Detroit (General Grant)? That was exactly who he meant, Johnson replied, adding that Grant “wasn’t in a condition to know much about politics just then.” Indeed, on occasion that same man had been in Johnson’s office “so drunk that he couldn’t stand.”

In any event, Johnson continued, he could not be held responsible for anything he said during those speeches. He had answered hecklers in the crowds. “If I used any rough expressions,” he protested, “they were put into my mouth by my enemies.”

When the interview was published, Johnson was chagrined, first saying it should not have been published. Then he blamed the reporter, claiming he had been misquoted. The presidential temper was stirred by another press report. The Radical
New York Tribune
stated that General Grant viewed the president’s conviction as “the only hope for the peace of the country.” Unless Johnson was removed, the general-in-chief supposedly predicted, there would be “determined resistance to law” in the South. The president derided the notion that the opinion of a soldier could matter on impeachment. He finally concluded that Grant probably had not made the statements (as indeed he had not).

While the president stewed, one of his supporters started a very productive conversation. As assistant secretary of the navy during the Civil War, Gustavus Fox had been a catalyst in the development of the Union’s first ironclad ship, the
Monitor
. On the night after Butler closed his case, Fox visited Senator James Grimes of Iowa, one of the Republicans fingered as a potential crossover vote for acquittal. When the conversation turned to the trial, Grimes shared some political insights.

Any Republican thinking of voting with the president, the Iowan pointed out, must fear that Johnson would greet acquittal as an occasion for wreaking vengeance on his foes. That fear alone could cause senators to vote against Johnson. In a recent public letter, Speaker of the House Schuyler Colfax of Indiana raised that concern, warning that an acquitted Johnson would cashier General Grant and refuse to obey any law he deemed unconstitutional. Was there some way, Senator Grimes wondered, for Johnson to provide reassurance that he would act moderately if retained in office? The Iowa senator also observed—as Sherman and Grant and Thomas Ewing had before him—that if only the president would appoint a politically acceptable war secretary, he might extricate himself from this mess.

Fox carried Grimes’s messages back to his former chief, Navy Secretary Welles. Within a day, Welles delivered them to Johnson. This time, Johnson was almost ready to listen to reason.

The president either did or did not violate the Tenure of Office Bill. Mr. Curtis makes out that (1) he did not violate it, and (2) he set out to violate it, but that in doing so he acted with the best intentions in the world. I leave to someone more clever than I the task of finding some connection between these two propositions.

G
EORGES
C
LEMENCEAU
, A
PRIL
10, 1868

S
ITTING AT THE
defense table when the Senate convened at noon on Thursday, April 9, Benjamin Curtis gazed over piles of law books and manuscript sheets. The clean-shaven lawyer—of medium height and meaty build, with a large head—somewhat resembled his client, the president. He waited as Butler presented inconsequential testimony from two final prosecution witnesses. Then the fifty-nine-year-old former Supreme Court justice rose to give the opening statement for the defense. He cautioned his audience that his legal analysis would be “dry work.” He was as good as his word.

Curtis’s manner was judicial and restrained, even “monotonous,” according to one observer. Many ladies fled the gallery during his opening hour, disappointed by his lack of flair. He used few vivid metaphors, indulged no personal recriminations, predicted neither glory nor doom for the Republic. In short, his stiff presentation contrasted in every way with Butler’s splenetic posturing, a contrast that made the defense seem more professional and more reliable. Even Butler acknowledged Curtis’s effectiveness. After Curtis’s speech, Butler wrote in his memoirs, “[N]othing
more
was said in [Johnson’s] behalf, though…much
else
was said.”

Benjamin Curtis, former Supreme Court Justice.

The Boston lawyer dove directly into the Tenure of Office Act, which was the basis for the first eight impeachment articles. He seized on a vexing ambiguity in the law. As initially approved by the Senate, the statute did not apply to Cabinet-level officers (the secretaries of war, state, interior, agriculture, and navy, and the postmaster general and attorney general). The House of Representatives then adopted a version that specifically covered Cabinet officers. A conference committee of senators and congressmen hammered out new, compromise language. A House sponsor declared that the new language covered Cabinet members (the House position); a Senate sponsor told the Senate that the new provision excluded the Cabinet (the Senate position). Thus reassured with diametrically opposed descriptions of the revised bill, both houses approved it, then enacted it over Johnson’s veto.

The critical passage was deceptively simple. It stated that Cabinet officers “shall hold their offices respectively for and
during the term of the president by whom they may have been appointed
,…subject to removal by and with the advice of the Senate.” Curtis stressed two ambiguities in applying this passage to Edwin Stanton. First, he argued, Johnson did not appoint Stanton to be war secretary. Lincoln did, and he did it in 1862. After Lincoln’s death, Johnson merely permitted Stanton to continue in office. In addition, Curtis continued, Lincoln’s term of office had been over since April 1865, since Lincoln was dead. “Death is a limit,” he stated bluntly. Stanton, Curtis concluded, was now serving during the “term” of a president (Johnson) who had not appointed him. Accordingly, the Tenure of Office Act did not protect him, so Johnson had been free to cashier the war secretary.

There were two effective responses to the defense lawyer’s argument. It was true that President Johnson did not appoint Stanton to the Cabinet, but by retaining him there, the president demonstrated the intent to have him in office. In many circumstances, the law would view Johnson’s conduct as constituting the effective appointment of Stanton to that position. In addition, wasn’t Johnson filling out Lincoln’s “term” as president? Johnson had never been elected president in his own right. If Lincoln’s term continued until March 4, 1869, then Stanton was still serving within the term of the president who appointed him.

Recognizing that there were rejoinders to his arguments, Curtis did not press them too hard. He sought only to establish that he had raised “a very honest and solid question” about whether the statute applied to Stanton. If reasonable minds could differ on the point, he asked, then how could the prosecution show that Johnson had intentionally violated the law? If Curtis could persuade senators that the statute was not clear, then the president’s actions were not “so willful, so wrong” as to be a high misdemeanor warranting conviction by the Senate.

Speaking for three hours on the opening afternoon, and then another hour the next day, Curtis showed lawyerly ingenuity. He not only contended that Johnson never meant to violate the Tenure of Office Act, but also insisted that the president had the constitutional power to fire Stanton and so had no duty to respect the statute. Curtis shrugged off the inconvenient fact that Johnson had several times complied with the Tenure of Office Act without seeking a judicial ruling on its constitutionality. The president followed the statute’s procedures when he first suspended Stanton, and when he fired four other officials. Holding the president to have thereby abandoned his constitutional powers would be, in one of Curtis’s rare flights of rhetoric, “a spectacle for gods and men.”

Curtis then spun around to take an entirely different position. Johnson’s intent to replace Stanton was irrelevant, the lawyer insisted, because he had not actually removed the war secretary. In urging this surprising proposition, Curtis chose to ignore the president’s refusal to transact business through Stanton, as well as Lorenzo Thomas’s regular attendance at Cabinet meetings as the supposed interim war secretary. Curtis also denied that Johnson had
appointed
Thomas as interim war secretary at all, calling the president’s action the temporary filling of a vacancy—a distinction of bewildering subtlety.

On Curtis’s second day, Friday, April 10, the weather was wet and grim. Inside the Senate, he had some uncharacteristic fun with Butler’s stump-speech article. The Boston lawyer called the attack on the president’s blustery speeches the equivalent of turning Congress “into a school of manners, selecting from its ranks those gentlemen whom it deems most competent…to teach decorum of speech.” After Butler’s performance before the Senate, the thrust was a fair one.

Despite his dry work and dry oratory, Curtis successfully launched the president’s case. His thoughtful demeanor had a positive impact, which was reinforced by his stature as a former Supreme Court justice. Curtis brought a dignity to the defense that Butler could not match. It was not, after all, a case of horse-stealing, and no one could think so after listening to Curtis.

Curtis’s legal analysis had the power to persuade, particularly his dissection of the Tenure of Office Act and his insistence that the president did not have to be correct that Stanton was not covered by the statute. So long as Johnson’s interpretation of the statute was not unreasonable, Curtis had argued, then a senator should vote to acquit. How could a president be deposed for applying an ambiguous statute in a reasonable manner? By the time Curtis completed his speech, all but one Cabinet member changed his view of the trial, suddenly agreeing that the president would be acquitted. Though many other factors played into the final vote on impeachment, Republican Senator Fessenden of Maine awarded Curtis the highest accolade: “Judge Curtis gave us the law and we followed it.”

The galleries were looking forward to the testimony of the first defense witness. Jaunty Lorenzo Thomas did not disappoint. With disarming insouciance, he related how the president designated him interim war secretary, then described his efforts to seize control of that department. Thomas beguiled listeners with his tale of Stanton’s gentle response to the news that Thomas was arrested before breakfast. The image of Stanton stroking Thomas’s hair, “as he sometimes does,” then pouring out whiskeys for the two of them, seemed to dissolve the risk of a second civil war. “No two cooing doves ever met on milder terms,” crowed the
New York Herald
. Managers Butler and Bingham attempted to shatter the warm feelings with almost an hour’s worth of objections to testimony about the president’s statements to Thomas, but the Senate overwhelmingly voted to hear out the adjutant general.

Butler fricasseed Thomas during cross-examination. The adjutant general gamely insisted that it was his idea, not the president’s, to use force to take over the War Department. Thomas maintained he did not even tell Johnson of his intention to use force. Then, Thomas testified, he changed his mind about using force, though he could not explain why he did, or why he failed to share that decision with the president. Finally, he said that Johnson never told him how to take charge of the War Office. Butler struck pay dirt when he secured Thomas’s admission that he was attending Cabinet meetings as the war secretary, and that the president took the position that Stanton was out of office. That testimony contradicted Judge Curtis’s claim that Stanton never had been removed as war secretary. Butler’s sarcastic questioning elicited frequent laughter. When Thomas left the stand, Butler bade him a cheery farewell: “We shall always be glad to see him.”

If Thomas brought laughter to the Senate Chamber, the next witness contributed star power. General William Sherman strode forward to take his oath. He chose to testify while standing, his strong voice reaching each corner of the large hall. The galleries, with opera glasses trained on the red-bearded soldier, leaned forward for a better look. Sherman answered Stanberry’s preliminary questions briskly, his formal demeanor almost thrilling after Thomas’s genial bumbling.

The defense, as Butler knew, wanted Sherman to testify that the president’s every step was designed to secure a court decision on his power to remove Stanton. Stanberry asked whether Sherman had interviews with Johnson over Stanton’s status. “I had,” Sherman answered. The House managers erupted with objections. Sherman retreated to a seat to wait out the lawyers.

The managers protested any testimony about the president’s statements to Sherman. If the defense wished to present Johnson’s statements, Butler insisted, they should produce the president himself. The defense lawyers replied, and Chief Justice Chase agreed, that the Senate had allowed Adjutant General Thomas to offer exactly such testimony. The Senate promptly reversed that ruling and refused to hear the testimony from Sherman. Stanberry struggled to get around the ruling and elicit from his witness the desired statements by Johnson, but without success. Stanberry brought Sherman back the following day for another try, but had no better luck.

The defense contrived a new tactic. On the following trial day, Monday, April 13, General Sherman took the stand for a third time. Senator Reverdy Johnson, a Maryland Democrat and ally of the president, posed a question. Did the president explain to General Sherman why he offered to appoint him as secretary of war? By a single vote, the Senate allowed Sherman to answer. Sherman gathered his thoughts for a moment, now that he finally would be permitted to share them.

Astonishingly, the general did not give the testimony the defense had labored for three days to present—that the president wished the dispute over the Tenure of Office Act to go to the courts. Johnson “did not state to me,” Sherman said, “that his purpose was to bring [the dispute] to the courts directly; but [said it was] for the purpose of having the office administered properly in the interest of the Army and of the whole country.” According to Sherman, when he asked Johnson why the matter was not before the courts, the president replied that it could not be. Wisely, the managers saw no need to cross-examine Sherman.

The general had confounded the defense lawyers and helped the prosecution by describing Johnson as uninterested in going to court. Sherman had undermined one of the president’s principal defenses. On the other hand, the Senate’s rulings on the admission of evidence perplexed everyone. The Senate allowed Thomas to testify about the president’s statements, then refused to hear such testimony from Sherman, then reversed itself again. These arbitrary changes in direction raised questions about the fairness of the trial.

On the night when Sherman’s testimony ended, another misfortune struck the defense. Stanberry, who had trained like a prizefighter for the trial, fell ill. It was pleurisy, a dangerous lung infection. The Senate granted the defense a one-day recess, but the president’s team would have to persevere without the lawyer Johnson trusted most. Stanberry would not be able to answer the bell for the next round.

The president brooded over his fate. Every night, he greeted an aide who attended the trial, William W. Warden, with the words, “Well, what are the signs of the zodiac today?” The news rarely cheered him. On Sunday, April 12, he heard a sermon on Chapter 12, third verse, of the First Book of Samuel, in which an old king walks among his people and self-righteously demands, “Whose ox have I taken? Or whose ass have I taken? Or whom have I defrauded? Whom have I oppressed? Or of whose hand have I received any bribe to blind mine eyes therewith?” Dwelling on the application of that verse to his situation, Johnson pulled from his shelf a Bible he had brought with him from Tennessee. He studied the passage. Colonel Moore, who sat with him, was struck by how keenly Johnson felt the injustice of the trial.