Analysis: House of Representatives – Articles of Impeachment

Date: February 1868

Author: House of Representative, 40th U.S. Congress

Genre: constitution; legislation; political tract

Summary Overview

The articles of impeachment of President Andrew Johnson consist of eleven indictments, which were intended to remove him from the office of the president. The most important charges were based on the President having violated the Tenure of Office Act, a constitutionality questionable law. This was the first time the House of Representatives voted to impeach a president. The United States Senate conducted an impeachment trial, ending in a vote of 35-19, one vote short of the two thirds necessary for conviction; the Senate had rejected the House of Representatives’ charges. Johnson went on to serve out the end of his term, which ended on March 4, 1869. By defying the Republican majority that had impeached him, Johnson had in effect repudiated the result of the 1864 election.

Document Analysis

The true significance of these articles of impeachment is not in the words themselves, but rather in why they were written and what happened to them.

Johnson was a Democrat elected vice president under a Republican president who many in the Republican Party thought was too soft on the South; yet Lincoln was, particularly after the successful conclusion of the war, the undisputed leader of his party. Lincoln’s violent and sudden death at the hands of a Southern sympathizer not only thrust Johnson into the presidency but also dealt him a hard hand to play as he tried to carry out Reconstruction.

Andrew Johnson’s relationship with Congress was anything but good. Congress considered the conditions of “Presidential Reconstruction” too soft and they moved to impose what became known as “Congressional Reconstruction.” Johnson’s strained relationship with Congress can be seen in his problems with having his vetoes upheld. Throughout his presidency 15 of his 29 vetoes were overridden (counting eight pocket vetoes which cannot be overridden). Thus, 15 of the 21 times Congress could defeat the president they did. As a point of comparison, both Presidents Harry Truman and Gerald Ford had 12 vetoes overridden, but that was out of 250 (70 pocket) and 66 (18 pocket) vetoes respectively.

During the period prior to his impeachment Congress overrode nine of Johnson’s fourteen regular vetoes, including what is known as the Tenure of Office Act. The act required that any officer of the government requiring Senate approval for his appointment also required Senate approval for his removal, including the Cabinet. The act included fines and jail time for violating the law, which were important provisions when the efforts to impeach the president were brought forward.

The Tenure of Office Act left two important questions open. The first was, Was the act constitutional? This debate had been held in 1789, when the founders decided in favor of presidential discretion in this matter, a fact well known to the political leaders of the day. The other was, What constituted a presidential term? Cabinet members got to keep their office for 30 days after a president’s term ended, but was that counted from the point when the president ceased to be president or from the end of the specific four-year cycle?

The Tenure of Office Act became law over the president’s veto on March 2, 1867, by votes of 35-11 in the Senate and 138-40 in the House. It is worth noting that the final bill approved by the House differed markedly from the one initially passed by the Senate. The Senate bill specifically excluded the department heads, the cabinet, from its provisions. It was amended in the House of Representatives to include cabinet officers, and this amendment was central to the impeachment of the president.

This was not the first effort to impeach President Johnson. There had been an effort at impeachment that ended in December 1867. It failed primarily because it appeared to be based on policy disagreements between the Radical Republicans and the president. This failure was part of the development of an important aspect of the presidential impeachment philosophy. The president had to be guilty of an indictable offense; in other words, he had to commit a crime for which he could go to jail. This is where the provisions in the Tenure of Office Act that made its violation a crime punishable by jail time became important in the impeachment process.

The defining moment came when Johnson finally decided to fire Secretary of War Edwin Stanton. Johnson had suspended Stanton while the Congress was in recess, but this was not agreed to by the Senate. Finally on February 21, 1968, Johnson ordered General Lorenzo Thomas to take over the duties of the Secretary of War. Johnson’s actions were meant as a test of the Tenure of Office Act but they gave his opponents an opportunity to move against him.

For a second time the idea of impeaching the president came to the fore, and the firing of Edwin Stanton played a central role. A formal resolution of impeachment was presented from the Committee on Reconstruction. During the debate on the resolution those in favor focused on the violation of the Tenure of Office Act. The president’s defenders argued that the act itself was unconstitutional. In the end the resolution was passed by a vote of 128-47. The president had been impeached and a committee of seven was selected to write the formal articles of impeachment.

The first nine articles passed by the House on March 2, 1868, revolved around the idea that President Johnson had violated the Tenure of Office Act of 1867. Through a tortured use of language the House of Representatives found nine different ways to say the same thing: Johnson had fired Secretary Stanton and then moved to prevent him from carrying out the duties of his former office. The vote on each of the first nine articles was passed overwhelming by a Congress, dominated by Republicans. The smallest margin of victory was on article 9, which passed with a margin of 67 votes. On March 3^rd the House added two further articles, article 10, charging the president with speaking against the Congress and bringing Congress into disrepute, and article 11 which was more of a summary of all of the charges against the president.

The debate on the articles led to a final solution of an important and not unrelated issue. Was Andrew Johnson the president of the United States, or was he the vice president acting as president? It was an important technicality. Did the House need to impeach the president or the vice president? Which office holder was being impeached? Using the precedents of both John Tyler in 1841 and Millard Fillmore in 1850 it was agreed in both houses of Congress that the vice president had become president on the death of his successor. Thus, the House had to impeach the president, not the vice president, as the latter position was now vacant.

The Senate prepared itself for the impeachment trial to be conducted by the House by adopting rules for the conduct of the trial on March 2 (rules, incidentally, that would lay the groundwork for the trial of Bill Clinton 130 years later). The Senate began the trial process on March 5, 1868, when the Chief Justice and senators took an oath to provide impartial justice in regards to the trial. The Senate of the 40^th Congress in spring 1868 was made up of 54 Senators, 45 Republicans (including two Unconditional Unionists), nine more than the number required to convict and remove the president.

On March 13 the president’s counsel asked for 40 days in which to prepare his defense, the request was denied and the Senate set March 23 as the day on which the resident needed to be prepared to respond to the charges. When the Senate reconvened, the question was raised whether it could act as a constitutional body while still excluding the members from ten of the eleven Southern states. The Senate determined it could by a vote of 40 to 2. The president’s counsel then answered the House’s charges.

The president’s counsel gave Johnson’s response to the charges to the Senate on March 23. He responded to article 1 by charging that the law itself was unconstitutional, thus Johnson could not have violated the law or the Constitution. To article 2 he responded that Johnson’s actions were lawful as there was a vacancy at the war department as he had fired the Secretary of War. For article 3 the defense was that the reasons expressed in his argument for articles 1 and 2 applied to this article as well. His argument for article 4 was that there was no effort to intimidate anyone; the president simply authorized General Thomas to take over as interim Secretary of War using the normal executive power. His defense for articles 5 through 8 can be summed up by saying that Johnson was simply trying to carry out his duties as president of the United States. He argued in response to article 9 that the president had been expressing to others the same sentiments he had expressed to the House of Representatives about the constitutionality of limits that had been placed on his role as commander in chief. For article 10 the president denied that the events accurately depicted not only what was said, but the tone and tenor of what was said, and that it was his duty as president to warn Congress when he saw them headed on the wrong course regarding Reconstruction. The response to article 11 contained the blanket denial that Johnson had done anything that constituted a high crime or a misdemeanor.

The trial itself began on March 30 and lasted until May 16, 1868. The Senate chose to vote on article 11 first. By this point, though, the outcome could little be in doubt. Earlier procedural votes had shown that nineteen members, including seven Republicans, would vote not guilty. The final vote on article 11 took place on May 16, 35 voted guilty and 19 voted not guilty, one short of the required number for conviction. The Senate reconvened on May 26 to try again to convict the president. The votes on articles 2 and 3 were identical to article 9, 35 to 19. After this additional failure the Senate agreed to go into “adjournment without day,” meaning that they would not meet again as an impeachment trial court, effectively ending the efforts to impeach President Johnson without voting on eight of the articles. Of the nineteen votes, ten came from elected Republicans but three came from those often considered Democrats for practical purposes. The Republicans who voted against their party were Senators William Fressenden, James Grimes, John Brooks Henderson, Edmund Ross, Joseph Fowler, Lyman Trumbull, and Peter Van Winkle.

The Senate result kept Johnson in office for the remainder of his term and set the precedent that the Congress does not remove presidents for policy differences but only for actual crimes. After the trial Johnson remained in office for only ten more months, but his presidency was indeed weakened by the trial and he was left with little opportunity to accomplish his goals.

The Tenure of Office Act would be kept on the books until 1887 when it was finally repealed. The idea of a congressional veto over the presidential firing of executive branch officers was ended by the Supreme Court in 1926 when they decided Myers v. United States.

Bibliography

Cannon, Clarence. Cannon’s precedents of the House of Representatives of the United States. Washington, D.C.: GPO, 1945. Print.

Library of Congress. “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates.” Web.

Nelson, Michael, editor. The Evolving Presidency: Landmark Documents, 1787-2010. Washington, D.C.: CQ Press, 2012. Print.

University of Missouri Kansas City Law School. “Famous American Trials: The Andrew Johnson Impeachment Trial, 1868.” Web.

White, Horace. Life of Lyman Trumbull. New York: Houghton Mifflin, 1913. Print.