Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy (37 page)

Moreover, Johnson’s acquittal did not mark the death of impeachment as a constitutional tool. The House impeached several federal judges between Johnson’s acquittal and 1935; some resigned and the Senate convicted two of them after trial. Richard Nixon resigned in 1974 rather than face near-certain impeachment and removal. The Johnson verdict did not prevent House Republicans from throwing the moralistic temper tantrum that led to the 1999 impeachment of Bill Clinton for actions totally unrelated to his official duties (though Clinton was acquitted by the Senate). Impeachment is an institutional safety valve, like the emergency lever in a train, to be used only in times of great exigency. Following the Johnson case, the safety valve continued to be available and continued to be used, rarely.

Based on the Johnson, Nixon, and Clinton cases, certain conditions seem to be necessary, if not sufficient, for presidential impeachment to be possible: Congress must be controlled by the opposing party, and the impeachers must be able to point to a legal violation by the president that can be portrayed as a crime. One further lesson from the Johnson and Clinton examples is that a president who has acted most unwisely can still avoid removal from office as long as he retains the support of his own party.

That presidential impeachment has been rare can hardly be attributed to Johnson’s acquittal. It arose once, briefly, before the Johnson case; it has been an infrequent concern since. The triumphant generalizations offered by many historians and commentators about the Johnson impeachment have been so ill founded because the case unfolded in unique circumstances. Never again would the nation face a prolonged political struggle over how to reunite with a breakaway region that had started a civil war; never again would the party opposing the president enjoy such lopsided majorities in Congress; never again would assassination elevate to the White House someone who truly belonged to the other political party. The remarkable achievement was that impeachment produced a peaceful resolution of the angry contest, not that it saved the presidency from being subjugated to Congress.

When it came to restoring the constitutional balance of the government, Johnson’s acquittal was far less important than Congress’s repeal of much of the Tenure of Office Act, which began shortly after Johnson left the White House. In response to President Grant’s demands, Congress promptly gave him control over firing Cabinet officers, and additional authority over the removal of lower officials. That controversial statute had, indeed, frozen some of the gears of government by stripping the president of the power to choose those who would implement his policies.

Almost sixty years later, the Supreme Court ruled on whether Senate approval could be required before specific executive officials could be fired—the constitutional issue that Johnson claimed he hoped to bring to the Supreme Court by replacing Edwin Stanton. In
Myers v. United States
, the Court held that the president could fire a postmaster without Senate approval. The Court’s opinion was written by the only former president to serve on the Supreme Court. Chief Justice William Howard Taft decried congressional encroachment on executive powers and denied that Congress could reserve for itself the power to approve the firing of Postmaster Myers. Dissenting opinions by liberal Louis D. Brandeis and archconservative James McReynolds shredded Taft’s historical arguments. As the dissenters saw it, Congress created executive offices under the Constitution, and established their salaries and duties. Why could Congress also not prescribe specific terms for those offices, or require Senate concurrence in the removal of the people holding them? The dissenters were not fazed by Taft’s insistence that it was unwise for the Senate to play a role in executive removals; wise or foolish, they insisted, the Constitution allowed it. Less than ten years later, the dissenters were partly vindicated after President Franklin Roosevelt dismissed the chairman of the Federal Trade Commission. The Supreme Court ruled that since Congress had created a five-year term for the position, the president could not fire the chairman before the end of his term.

Fourteen decades after Johnson’s trial, several features of that constitutional confrontation still resonate. Stevens, Butler, and the other Republicans gave life to the impeachment clause as a response to a national crisis. They showed that it could be used to challenge a president directly. In our era of an increasingly imperial presidency, it is a powerful example: the direct representatives of the people possess the ultimate tool for curbing executive excess. It is an unwieldy tool, but an essential one. By coming so close to a conviction, the impeachers established that there are limits on presidential discretion, that the nation need not wait until the end of a four-year term to jettison a president. They also deserve credit for accepting their defeat peacefully, without any call to arms, respecting the constitutional process.

The positive results of the unsuccessful impeachment should not be overlooked. The accusers—and their supporters—had the cathartic experience of haling Johnson before the Senate, displaying his failings to the nation and the judgment of history. The experience chastened the most powerful person in the nation, who had committed many blunders, whether or not they warranted his removal from office. Unless he had been battered by that constitutional two-by-four, Johnson might well have left the clownish Lorenzo Thomas as interim secretary of war and could have embarked on other spiteful and ill-considered actions. Moreover, though hysterical rhetoric filled the air, the impeachment process itself was legalistic and peaceable, a constitutional outlet for violent political passions.

After three serious attempts to impeach a president, though, we are no closer than Thad Stevens and Benjamin Curtis were to knowing exactly what conduct justifies presidential removal. Indeed, in many ways the phrase “high crimes and misdemeanors” has proved to be its own Rorschach blot, sufficiently imprecise to permit intelligent arguments that it requires a true judicial “crime,” or alternatively that it imposes no such requirement. But in the twenty-first century, when presidential powers have grown so vast and intrusive, it is an essential principle that
something
does.

In addition, though Johnson’s acquittal was mortifying to Stevens and his fellow impeachers, it stigmatized Johnson forever as the man who escaped removal by the skin of his teeth. That the key acquittal votes were won by political bargaining and patronage payoffs, or by bribes, marks him even more.

Also, though the immediate cause of the impeachment effort was the firing of Stanton, underlying it was the firm conviction held by many Republicans that Johnson was undermining the nation’s commitment to protect the freedmen and aid their emergence from slavery. That commitment would linger for only a few more years, then lie dormant for many decades. Yet it bears remembering that there were congressmen and senators in 1868 who almost drove a president from office in part because he would do nothing to stop the mistreatment of the former slaves.

Americans, perhaps all people, expect historical crises to be met by heroes—Washingtons, Franklins, Lincolns, and Roosevelts. A nation learns a great deal more about itself and its system of government when a crisis has to be met by people of lesser talents. In the impeachment crisis of 1868, none of the country’s leaders was great, a few were good, all were angry, and far too many were despicable. Still, we survived.