‘Disgrace, Ridicule, Hatred, Contempt and Reproach’: The Impeachments of Andrew Johnson and Donald Trump

“There has been no President in the history of our Country who has been treated so badly as I have,” complained President Donald Trump as the House of Representatives began its impeachment inquiry in September 2019.[1] Only three other Presidents have faced impeachment inquiries, and they certainly felt the weight of the world had fallen upon them too. But as commentators have turned to the Nixon and Clinton cases for guidance on how an impeachment process should unfold, it might make better sense to turn to the case of Andrew Johnson, especially as it was the first Presidential impeachment trial.

On March 2, 1868, the House of Representatives passed nine articles of impeachment against President Andrew Johnson for violating the Tenure of Office Act when he removed Secretary of War Edwin Stanton and replaced him with Lorenzo Thomas, without the approval of the Senate. A day later the House passed two new impeachment articles. The tenth article addressed Johnson’s broader “attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States” through “intemperate, inflammatory, and scandalous harangues,” and the eleventh cited Johnson’s efforts to prevent passage of the Fourteenth Amendment by claiming that the Congress did not fully represent the United States.[2] On May 16 the Senate voted 35 to 19 on the eleventh charge, one vote short of the Constitutionally required two-thirds necessary for conviction and removal of Johnson from office. Ten days later the Senate trial adjourned.[3]

House impeachment managers needed to clear four thresholds to make the legal and political case for conviction. They needed to identify a “high crime or misdemeanor” justifying impeachment; prove that Andrew Johnson had, in fact, committed that high crime; demonstrate that Johnson committed this high crime with corrupt or malign intent; and show that Johnson was such an ongoing menace to the Constitution that the nation could not wait for November elections to remove him. The House’s attempt to clear these four thresholds in the Johnson case offers a helpful guide for understanding the impeachment of Donald Trump.

For the first threshold, House manager and Massachusetts Representative Benjamin Butler defined a high crime as an action “subversive of some fundamental or essential principle of government or highly prejudicial to the public interest.” It could either violate statutory law or, if not found in the legal code, reflect “the abuse of discretionary powers from improper motives or for an improper purpose.”[4] The House’s focus on Johnson’s violation of the Tenure of Office Act as the high crime proved difficult because of the dubious constitutionality and technical nature of the Act. The Act required the President to submit for Senate approval the removal of any Senate-confirmed executive officer. Passed at the end of the prior Congress in March 1867, the Act got to the heart of the larger dispute between Johnson and Congress over the course of Reconstruction.[5] The Military Reconstruction Acts of 1867 eliminated Johnson’s preferred state governments and placed the former Confederate states–except Tennessee–under military rule as they passed new state constitutions that protected the civil and voting rights of African Americans. Johnson repeatedly interfered with the work of effective commanders like Generals Sheridan and Sickles, replacing them with more pliant conservative officers likely to stifle the prospects of interracial democracy and justice.[6] Congress designed the Tenure of Office Act to counter this kind of interference with its Reconstruction plan by protecting Senate-confirmed Cabinet officials like Secretary of War Stanton. When Johnson suspended Stanton in August 1867 and then replaced him with Lorenzo Thomas in February 1868–even after the Senate rejected Johnson’s removal of Stanton–Johnson had pushed Republicans past the breaking point.

Johnson’s highly capable defense counsel argued that the Tenure of Office Act did not cover Stanton at all, because it only protected an officer for the term of the President plus one additional month of his successor’s term. Since Stanton had been appointed by President Lincoln in 1862, Stanton’s protection under the Act would run out in May 1865. House impeachment managers countered that Johnson had treated the matter all along as if Stanton were covered by the Act, right up until the final replacement with Thomas, and that Johnson’s term effectively continued Lincoln’s term. But that was not enough in the end, as William Groesbeck, Johnson’s lawyer, deployed this argument to convince seven “recusant” Republicans to join the Democrats and acquit.[7]

The second task in 1868 was to show that the President personally committed the high crime in question. For House managers, this was relatively easy since Johnson openly ordered Stanton’s removal himself. However, Johnson’s counsel argued that he never successfully consummated the removal of Stanton and should not be impeached and removed merely for attempting to violate the Tenure of Office Act.[8]

As for the third task–demonstrating corrupt and malign intent–House managers in the Johnson case showed how Johnson’s repeated refusal to accept Congressional authority indicated that his violation of the Tenure of Office Act was a deliberate threat to the Constitutional order. The House voted first on the eleventh impeachment article regarding the legitimacy of Congressional power, because it encapsulated the grave threat to the Constitutional order that Johnson posed. Defense counsel countered that Johnson showed good faith in notifying the Senate of Stanton’s removal per the Tenure of Office Act–mostly as a precautionary measure, as they saw it–and that his violation of the Act was simply a mistake and not a malign offense against the Constitution.

Regarding the fourth threshold–ongoing threat to the Constitution–Johnson made a rather remarkable promise to the House managers that he would no longer try to remove generals involved in Reconstruction. The trial’s timing actually helped matters, as several states ratified new constitutions before Johnson could possibly undermine them.[9] When Johnson committed to name an acceptable candidate, John Schofield as Secretary of War, some Republican Senators determined that Johnson had been chastened enough, especially with the November 1868 election in the near future.

Turning to the Trump case, House Speaker Nancy Pelosi initiated impeachment hearings in September 2019 after a whistleblower reported questionable activity surrounding the President’s interactions with the government of Ukraine. Several witnesses have now testified that Trump withheld Congressionally authorized defense aid for Ukraine–and a highly coveted White House visit by the new Ukrainian President, Volodymyr Zelensky–in return for a public announcement of an investigation into Burisma, a Ukrainian gas company. Hunter Biden, son of Democratic Presidential candidate Joe Biden, sat on Burisma’s board between 2014 and 2019. If Ukraine’s President were to announce an investigation into the Bidens, it would undoubtedly cast a cloud over Joe Biden’s Presidential prospects in 2020. Trump only released the withheld funds when the whistleblower report reached Congress, just days before Ukrainian President Zelensky was prepared to announce the “investigation” on CNN.

Specific impeachment charges for Trump may include violations of campaign finance law making it “illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election,”[10] or violation of the Impoundment Control Act governing distribution of Congressional funds.[11] Technically, soliciting foreign election help in the form of an “investigation announcement” would, in itself, be a crime. But it alone might not rise to the level of impeachable high crime. However, a quid pro quo between that announcement and withheld financial aid raises the matter to something akin to extortion or bribery, an obviously impeachable offense spelled out in the Constitution.

Trump’s defenders have argued that this is biased hearsay evidence, and since the Biden investigation was never announced, no quid pro quo occurred. They have claimed that trusted allies like Rudy Giuliani or Ambassador Gordon Sondland may have freelanced the operation. Trump’s defenders have also argued that he was legitimately trying to fight corruption in Ukraine by investigating a firm, Burisma, that has long come under scrutiny for corrupt behavior. As in the Johnson impeachment, the primary issue is malign intent. Just as Johnson’s counsel argued that his violation of the Tenure of Office Act was mostly accidental and procedural, Trump defenders will likely argue that his intent was to carry out his Constitutional responsibilities to manage foreign policy as he sees fit.

For all of these reasons, House investigators have sought evidence of Trump’s direct involvement and willingness to follow through until caught by the whistleblower and Congress. To show corrupt and malign intent, the House has argued that Trump’s use of back-channel communications, his refusal to discuss Ukrainian corruption in any other context, and, most importantly, his demand that President Zelensky announce an investigation into the Bidens on CNN, all demonstrate corrupt intent to turn foreign policy into a “domestic political errand.”[12] Further, the ongoing threat to continue soliciting foreign interference is precisely what convinced so many reluctant Democrats to support impeachment. Impeachment serves as a preventative measure against future foreign election interference, much the same as it did for Johnson, forestalling any continued interference with Reconstruction.

Like with the Johnson case, Trump’s impeachment involves both technical matters of law and broader political contexts. The President will need defense counsel of the quality that served Andrew Johnson, both to refute the impeachment articles in the Senate and to offer the general public talking points for the President’s defense.

As a final note, we should be careful about predicting an outcome in the Senate based on partisanship. The partisan makeup of the Senate in 1868 portended certain conviction for Andrew Johnson. Instead he was acquitted by a single vote. The partisan makeup of the Senate in 2019 suggests certain acquittal. But if the House managers’ case is powerful enough, and the defense case weak and disjointed, the Senate may surprise us all, as it did in 1868.

 

[1] Donald J. Trump (@realDonaldTrump), “There has been no President in the history of our Country who has been treated so badly as I have. The Democrats are frozen with hatred and fear. They get nothing done. This should never be allowed to happen to another President. Witch Hunt!” Twitter post, September 25, 2019 (7:24AM EST), https://twitter.com/realdonaldtrump/status/1176819645699043328.

[2] Supplement to the Congressional Globe Containing the Proceedings of the Senate Sitting for the Trial of Andrew Johnson, 40th Cong., 2nd Sess., 3–5.

[3] The best analyses of the impeachment and trial of President Johnson are Brenda Wineapple, The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation (New York: Random House, 2019) and Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: W. W. Norton, 1973). Readers can also consult an earlier Muster post, Patrick Rael, “By the Standard of Andrew Johnson’s Impeachment, Trump’s Would Be a No-Brainer,” Muster (blog), The Journal of the Civil War Era, September 1, 2017, https://www.journalofthecivilwarera.org/2017/09/by-standard-of-johnsons-impeachment-trumps-no-brainer/.

[4] Trial of Andrew Johnson, President of the United States, before the Senate of the United States, on impeachment by the House of Representatives for high crimes and misdemeanors (Washington, D.C.: Government Printing Office, 1868), 88, 147. Hereafter cited as Trial.

[5] An Act Regulating the Tenure of Certain Civil Offices, 14 Stat. 430-432 (1867).

[6] Benedict, 58-59.

[7] Wineapple, 325.

[8] Trial, 364.

[9] Gregory Downs, “Impeachment is the right call even if the Senate keeps President Trump in office,” Washington Post, October 7, 2019, https://www.washingtonpost.com/outlook/2019/10/07/impeachment-is-right-call-even-if-senate-keeps-president-trump-office/.

[10] Contributions and Donations by Foreign Nationals (a), 52 U.S.C. § 30121 (2002).

[11] Congressional Budget and Impoundment Control Act of 1974, 2 U.S.C. § 601-688 (1974).

[12] Andrew E. Kramer, “Ukraine’s Zelensky Bowed to Trump’s Demands, Until Luck Spared Him,” New York Times, November 7, 2019 https://www.nytimes.com/2019/11/07/world/europe/ukraine-trump-zelensky.html; Fiona Hill, National Security Counsel official, made the “domestic political errand” comment in her testimony on November 21, 2019. See https://www.washingtonpost.com/politics/2019/11/21/he-was-being-involved-domestic-political-errand-fiona-hills-take-gordon-sondland-annotated/.