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Impeachment Revisited

By Dr. Steven Woodworth

History never gets old. The past may be over and done, but history has as many stories to tell us as we have questions to ask it. Many times, the questions we ask of history are inspired by the circumstances we face. A new challenge, a difficult situation, a puzzling circumstance, all will lead us, if we are wise, to ask of history the stories of others who have confronted similar challenges and circumstances. Such has been the case with the American Constitutional process of impeachment. Study of the history of impeachment in the United States may have seemed a mere “academic” exercise at most times in our nation’s history, but in the 1970s and again in our own decade, it became an urgent question of immediate importance.
Long before the Founders wrote impeachment into Article 2, Section 4 of the Constitution the procedure existed in English law, where by long-standing tradition, going at least all the way back to the fourteenth century, Parliament could remove royal officials of whom it did not approve. It was a tool that the English people used in making a first tentative step toward gaining and keeping control of their own government. Royal officials had to give at least some heed to Parliament and the laws it made or else face the possibility of impeachment. A king who broke the law was not, however, subject to removal, at least not by ordinary constitutional processes, and thus when it became necessary to get rid of a king from time to time over the years, it could be a very messy process—literally.

The Founders understood the traditional British view of impeachment and wrote it into the Constitution of this country in 1787: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” They also specified that the House of Representatives would have the sole power of impeachment, and that the Senate would try an impeached official and remove him from office if two-thirds of the Senators voted to do so.

The “high Crimes and Misdemeanors” would of course include what we today think of as indictable criminal offenses—both felonies and misdemeanors—but also included mere misbehavior in office. William Blackstone's Commentaries on the Laws of England, the standard explanation of English law at the time our Constitution was written, clearly made impeachment the remedy for any act that might be an injury to the state or system of government, whether it was actually a crime or not. “Crimes and misdemeanors are mere synonymous terms;” Blackstone wrote, “but, in common usage, the word crime is made to denote offenses of a deeper and more atrocious dye, while small faults and omission of less consequence are comprised under the gentler name of misdemeanor.” That the Founders shared this view was made clear when they specified that an impeached and removed official would still “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” (Article 1, Section 3). Impeachment was the political solution; criminal matters would still be handled by the courts.

In their own commentary on the Constitution, The Federalist Papers, some of the Founders explained more about how they expected the process to work. In “Federalist Number 65,” first published in the New York Packet on March 7, 1788, Alexander Hamilton wrote that impeachment was for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are,” he continued, “of a nature which may with peculiar propriety be denominated POLITICAL” [emphasis in the original]. Hamilton went on to explain why the Senate was the ideal body to try and if necessary remove those who might be impeached by the House. It was large enough and democratic enough to be entrusted with so momentous a duty and yet sufficiently insulated from the eddying currents of public opinion to follow the law strictly in what the Founders anticipated would likely be a surrounding atmosphere of intense political battle.

The American understanding of impeachment has remained more or less constant over the years. During the early years of the republic, Congress impeached Judge John Pickering and removed him from office for drunkenness and profanity on the bench and perhaps also for mental instability. A generation later, the 1842 edition of Noah Webster’s famous dictionary still defined “impeachment” as: “a calling to account; arraignment; especially of a public officer for mal-administration. Censure; accusation, a calling in question to purity of motives or the rectitude of conduct as, an impeachment of motives or judgment.”

It was not until 1868 that the country saw its first impeachment and trial of a president. The impeachment of President Andrew Johnson was a complex affair that arose out of the tensions, conflicts, and animosities of America’s bloodiest war. Between 1861 and 1865 the United States fought and won a bloody Civil War, preventing eleven southern states from carrying out their intent of breaking away from the United States and setting up a republic of their own, dedicated to perpetuating slavery. The war saved the Union and rid it of slavery; it also cost 620,000 American lives, vast wealth, and, at the end, took the life of President Abraham Lincoln by the hand of an assassin.

The death of Lincoln set up the clash of wills that would lead to his successor’s impeachment. When Lincoln had run for re-election in 1864, the Republicans had hoped to improve their odds of success by nominating a Democrat, Andrew Johnson of Tennessee, as his running-mate. The idea was that this was not just a Republican war, but a contest in which all the Northern people, Republican as well as Democrat, should unite. In keeping with that theme, the Republicans had temporarily re-named themselves the Union Party.
That was all very well for winning an election, but with Lincoln’s death little more than a month after his second inauguration, the nation suddenly gained what amounted to a Democratic president.

Johnson’s approach to government was much different than that of most Republicans, and he was also a much less astute politician than Lincoln. The situation at the end of the Civil War was fluid and uncertain, with no clear-cut Constitutional prescriptions for how to handle such challenges. Johnston tried to apply the lenient policies Lincoln had announced during the war, but he did so without Lincoln’s skill and most especially without Lincoln’s keen sensitivity to a shifting political situation. Where Lincoln would no doubt have seen that stronger measures were needed, Johnson forged doggedly ahead with arrangements that were no longer adequate. Thus when Southerners during 1865 and 1866 refused to grant the newly-freed blacks basic civil rights and stubbornly re-elected former Rebel leaders to seats in Congress, Johnson accepted their action.

Congress did not. There followed a months-long battle of wills, as Congress took a number of legislative steps to try to compel Southerners to respect black civil rights and accept, once and for all, the results of the Civil War. Johnston could not see such acts of Congress in any other light than as unconstitutional usurpations of state rights, and he vetoed one after another. Equally resolute, Congress overrode his vetoes as quickly as he issued them. Failing to thwart the Republicans legislatively, Johnson tried his best to do so administratively. Army officers and other federal officials who proved zealous and energetic in enforcing Congress’s new laws might well find themselves transferred to other duty, far from the South and its issues of state rights and civil rights.

Republicans in Congress listened to reports of continued abuse of blacks’ civil rights in the South and could do little but gnash their teeth at Johnson’s intransigence. Frustrated at the relative lack of popular outrage at the president, Massachusetts Republican governor John A. Andrew lamented, "The fault of the American people is to trust men whom they know are untrustworthy." He need not have worried. In November 1866, the electorate substantially enlarged the Republican congressional majority.

Meanwhile, the struggle between president and Congress continued. In his effort to thwart the will of Congress, Johnson did not have the help of his secretary of war, Edwin M. Stanton. A holdover from Lincoln’s cabinet, Stanton was a staunch ally of the Radical Republicans and strove to implement their policies in the War Department, which had much of the responsibility for Reconstruction in the South. It was natural, then, that Johnson would come to dislike Stanton and decide to purge him from the cabinet—so natural, in fact, that the Radical Republicans anticipated it and took steps to thwart it.
To prevent Johnson from firing Stanton, the Republicans passed the Tenure of Office Act. This act required that any federal official whose appointment had required Senate confirmation could not subsequently be dismissed without the Senate’s consent. Naturally, Johnson vetoed the bill, and, just as naturally, Congress overrode his veto.

Thereupon Johnson took the fatal step. In February 1868, with just over a year left to run in his term, he fired Stanton anyway. Radical Republicans, already furious over Johnson’s constant attempts to thwart the will of Congress, now seized upon the issue as the long-awaited opportunity to do just what they had been wanting to do for a long time: impeach and remove the president.

Congressional Republicans who strove to impeach Johnson.

They lost no time carrying through, voting impeachment by an overwhelming majority in the House of Representatives that same month. Johnson’s trial in the Senate began the next month, March 1868. With the Radicals pushing for more speed in the proceedings and the president’s defenders doing their best to delay them, it was not until May of that year that the Senate announced its verdict.

Throughout the process, Johnson’s defenders tried several lines of defense. The Tenure of Office Act was unconstitutional, they claimed, and besides, it did not apply to Stanton—weak arguments when presented to the body that had passed the act and obviously meant it to apply to Stanton. Johnson’s people therefore also tried asserting that the president’s action did not rise to the level of an impeachable offense. Only an “indictable offense,” they argued, a criminal offense for which any ordinary citizen could be indicted and potentially convicted, could justify impeachment. This was a brand-new argument, invented for the occasion, and considering the history of impeachment in America, it was not much better than Johnson’s other two arguments. Yet perhaps the weight of the three defenses, taken together, along with the day to day political concerns of the various Senators, was just enough to get the job done for the embattled president.

Johnson managed to dodge removal from office by a single vote. The politics of an impending election and the mutual suspicions of rival factions within the Republican party combined with honest doubts about the law to move seven Republican senators to vote for acquittal. Though a majority voted for removal, it was one vote short of the two-thirds majority required by the Constitution. By that time, Johnson had only nine months left in his term, and during that period he showed little inclination to continue his battle with Congress. Within a year, Ulysses S. Grant was president.

After the impeachment of Andrew Johnson, a century passed without the use of that constitutional procedure. Then came the 1960s and ‘70s—the Vietnam War, riots in inner-cities and on college campuses, bitter political divisions—and the case of Richard M. Nixon. When low-level operatives of Nixon’s re-election campaign were caught in a bizarre botched burglary attempt at Democratic National Headquarters in the Watergate building, impeachment was once again a “hot topic” that everyone needed to know more about.

Demonstrating the relevance of history at such times, constitutional historian Michael Les Benedict was then just completing a book entitled The Impeachment and Trial of Andrew Johnson. In that book Benedict explained what impeachment had been and what the Founders had meant by it—a remedy for any misbehavior in office—and lamented that the Senate had failed to apply that remedy in the case of Andrew Johnson. In a final footnote, he expressed his regret that in the case of Nixon—then current—as in the case of Andrew Johnson, impeachment would not be used as a weapon “to repel . . . attacks on congressional authority” represented in the ideological struggle between the Democrats in Congress and Nixon, the Republican president. Instead, Benedict lamented, “congressmen are concentrating on the narrower question of the president’s possible criminal obstruction of the Watergate investigation.”

But focus they did, in a highly partisan investigation that dragged on and on, month after month. Nixon was never actually impeached, but the Democrats achieved at least most of the substance of their quest when the embattled president resigned to avoid all-but-certain impeachment and removal from office that would have followed if he had stayed to fight it out.

Among the forty-three lawyers employed by the Democratic-controlled House Judiciary Committee during that long struggle to impeach Nixon was young Yale Law School graduate Hillary Rodham. In a report she wrote for the committee, she too harked back to the historical meaning of impeachment, pointing out that going all the way back to late-fourteenth-century England, impeachment was “one of the tools used by the English” to make their government “more responsive and responsible.” As such, it could be triggered by wrong-doing that was “not necessarily limited to common law or statutory . . . crimes.” Instead, when impeachment had been used in American history, there had been “little emphasis on criminal conduct” but rather simply a need to remove public officials who had “seriously undermined public confidence” through their “course of conduct.” “Impeachment,” wrote twenty-eight-year-old Hillary Rodham in 1974, “is the first step in a remedial process” to correct “serious offenses” that “undermine the integrity of office.”

History never gets old, but sometimes it takes some very strange twists. So it is with the history of impeachment, a constitutional remedy that has been used or seriously attempted only three times in our nation’s history, each time amid intense political conflict. By one of those odd twists of history, the same Hillary Rodham (Clinton), who worked for House Democrats in the second great American impeachment controversy, is now the wife of the third American president to become a serious candidate for impeachment, and the subject is once again as current and pressing as it was twenty-four years ago.

One can never say what twists and turns the future will take, and that is all the more reason to study carefully that part of our story that now lies behind us. As in years gone by, those who must live in “interesting times” and play their parts, great or small, in such momentous controversies, would do well to study the past carefully, learn the wisdom it has to teach, and remember the lessons that previous generations have learned.

If you would like to know more about the impeachment of Andrew Johnson, click here.