Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy Read online

  ALSO BY DAVID O. STEWART

  The Summer of 1787

  The Trial of

  PRESIDENT

  ANDREW

  JOHNSON

  and the

  FIGHT FOR

  LINCOLN’S

  LEGACY

  SIMON & SCHUSTER

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  New York, NY 10020

  Copyright © 2009 by David O. Stewart

  All rights reserved, including the right to reproduce this book or portions thereof in any form whatsoever. For information address Simon & Schuster Subsidiary Rights Department, 1230 Avenue of the Americas, New York, NY 10020

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  Library of Congress Cataloging-in-Publication Data

  Stewart, David O.

  Impeached: the trial of President Andrew Johnson and the fight for Lincoln’s legacy / by David O. Stewart.—First Simon & Schuster hardcover ed.

  p. cm.

  Includes bibliographical references.

  1. Johnson, Andrew, 1808–1875—Impeachment. 2. United States—

  Politics and government—1865–1869. 3. Lincoln, Abraham,

  1809–1865—Influence. I. Title.

  E666.S84 2009

  973.8'1092—dc22 2009003346

  ISBN-13: 978-1-4391-6332-0

  ISBN-10: 1-4391-6332-4

  All illustrations are courtesy of Library of Congress except photo of James Legate on Chapter 15, which is courtesy of The Kansas State Historical Society.

  Visit us on the Web:

  http://www.SimonandSchuster.com

  To My Mother

  CONTENTS

  Preface

  1 Bad Beginnings: Spring 1865

  2 President Johnson: April 1865

  3 Land of Revolution: November 1865

  4 The Opposition Gathers: December 1865

  5 A Government Divided Against Itself: January–June 1866

  6 Political War: July–November 1866

  7 False Start on Impeachment: December 1866–June 1867

  8 The Dangerous Sphinx: August–November 1867

  9 Impeachment, Round Two: December 1867

  10 Impeachment, Round Three: December 12, 1867–February 15, 1868

  11 Showdown on Seventeenth Street: February 15–21, 1868

  12 The Dam Bursts: February 22–24, 1868

  13 The Waterloo Struggle: February 24–March 4, 1868

  14 Send in the Lawyers: March 5–29, 1868

  15 Influence and Edmund Cooper: March 1868

  16 Ben Butler’s Horse Case: March 30–April 8, 1868

  17 Defending the President: April 9–20, 1868

  18 Counting to Seven: April 1868

  19 An Avalanche of Talk: April 22–May 6, 1868

  20 The Dark Men: May 5–9, 1868

  21 Scrambling for Votes: May 6–12, 1868

  22 Desperate Days: May 12–15, 1868

  23 Free Again: May 16–26, 1868

  24 Searching for Scandal: May 17–July 5, 1868

  25 The Caravan Moves On: January 1, 1869–

  26 The Rorschach Blot

  Acknowledgments

  Appendix 1: The Impeachment Provisions in the Constitution

  Appendix 2: The Tenure of Office Act

  Appendix 3: Impeachment Articles

  Appendix 4: The Senate Votes

  Notes

  IMPEACHED

  PREFACE

  [T]his was no ordinary political crisis. It was not a struggle for office, or a contest about a tariff…, but a dispute that followed hard on a terrible civil war. It was the reconstruction of the Union that was at issue.

  GENERAL ADAM BADEAU, 1887

  AFTER FINISHING The Summer of 1787 about the writing of the Constitution, I wanted to pick up the Constitution’s story at its next critical moment. To form a union from thirteen quarreling states, the Philadelphia Convention patched together a number of rough compromises, prominent among them agreements about slavery and the allocation of power between the federal and state governments. Those political bargains held up for seventy years. During those decades, a web of accommodation and mutual forbearance bound the nation together. Three times, painful compromises over slavery kept the states united. Arguments over the powers of the sovereign states flared and subsided and flared anew. By 1861, contention over slavery and state powers overwhelmed the constitutional structure. Eleven Southern states seceded and fought a savage four-year war to be no part of the United States.

  That war exposed fundamental flaws in the founding document. Slavery could no longer be papered over. It had to be abolished. The national government’s power over the states had to be reinforced. A commitment to equality and the right to vote had to be embraced. From 1865 to 1870, the Thirteenth, Fourteenth, and Fifteenth Amendments remade the Constitution in those ways.

  Yet the central constitutional drama of this critical era was not the prolonged battle over the new amendments. Rather, the nation came closest to tearing itself apart, again, during the impeachment struggle between Congress and President Andrew Johnson in the spring of 1868. Accused by the House of Representatives of eleven offenses (“Articles of Impeachment”), Johnson endured a lengthy Senate impeachment trial, escaping conviction and removal from office by a single vote.

  I first studied Johnson’s impeachment trial twenty years ago, when I defended Walter L. Nixon, Jr., a federal judge from Mississippi, in an impeachment case before the Senate. I needed then to understand what offenses constitute “high crimes and misdemeanors” under the Constitution, and thus support impeachment. Naturally, I turned to the Johnson case, the only presidential impeachment trial to that point. My study yielded mostly confusion.

  The principal players in the case were unfamiliar: Congressmen Thaddeus Stevens and Benjamin Butler led the prosecution; in opposition were former Supreme Court Justice Benjamin Curtis and attorney William Evarts. The eleven impeachment articles, which were the indictment of the president, were impenetrable, even for a lawyer. The Senate’s rulings on legal issues—what was a “high crime” or “high misdemeanor,” and what evidence could be heard—were inconsistent, even incoherent. Those seeking to drive Johnson from the White House were passionate, but the charges against him seemed technical and legalistic. The conflict focused on Johnson’s attempt to fire his secretary of war. How, I wondered, could the president not have the power to do that? And yet Johnson almost was convicted on those baffling impeachment articles.

  This time around, with greater time and study, I appreciated better how this confrontation grew from irreconcilable disagreements over how to reconstruct the nation after secession and civil war. Johnson was a Southern Democrat, elected on the Republican ticket in 1864, who became president because of the tragic assassination of Abraham Lincoln. Johnson took a narrow view of federal powers under the Constitution. Untroubled by gruesome racial violence in the South, or by the replacement of slavery with a brutal form of agricultural peonage, he wanted Union troops to withdraw quickly from the region. Sovereign Southern states, he believed, should be left to manage their own affairs.

  Congress, overwhelmingly Republican and including no representatives from ten Southern states, disagreed. Congressional Republicans were enraged that former Confederates would be rewarded for their treason by swiftly regaining control over their states. Most Republicans wanted power in those “reconstructed” states to be reserved to men who had been loyal to the Union. They insisted that the freed sl
aves must be protected from white violence. Many wanted the freedmen to have the vote so they could elect state governments that would treat them fairly.

  As the dispute between Johnson and congressional Republicans grew more rancorous, constitutional questions became central. Johnson insisted that he was defending the Constitution “as it is,” preserving the original vision of the Founding Fathers. Congressional Republicans insisted that the Constitution, and the Union, had to change. When Congress resorted to its ultimate constitutional weapon against the president—impeachment and removal from office—calls to arms rang through the North and South. The nation’s future hinged on whether impeachment would work well enough to prevent a plunge back into civil war. Could the Constitution mediate this fierce battle within the government itself? When the nation slid into civil war in 1861, the Constitution was no help. Would it perform any better seven years later?

  This was a great testing for the Constitution and the nation. For many years, the conventional telling of the impeachment story portrayed it as a hairsbreadth escape from congressional despotism. By this traditional account, the presidency survived because a few heroic Republicans in the Senate refused to join the vengeful Northern harpies who hated Andrew Johnson for attempting to heal the nation’s wounds. That conventional view is a cartoon version of the actual struggle, and ignores much of the historical record. As president, Johnson inflicted many more wounds on the nation than he healed, while votes for his acquittal were purchased with political deals, patronage promises, and even cash.

  Andrew Johnson was an unfortunate president, an angry and obstinate hater at a time when the nation needed a healer. Those who opposed him were equally intemperate in word and deed. It was an intemperate time. The tempests of the Civil War still triggered high emotions. Yet Johnson’s opponents, often described as demonic impeachers, defended the principles of fairness and equality that represent the finest parts of the American tradition, which they also were fighting to incorporate in the Constitution. The impeachment process proved cumbersome and exasperating, but ultimately achieved exactly the goal for which the Framers of the Constitution designed it: the peaceful resolution of a grave national crisis.

  An unexpected part of the story is one that was difficult to see at the time and has been mostly ignored ever since: the corruption and bribery that surrounded the Senate trial. Though the passage of 140 years has covered many tracks, there remains substantial evidence that rogues and blackguards brandished fat wads of greenbacks and portfolios bulging with government appointments in order to keep Andrew Johnson in office, or to drive him out. The rascals included corrupt tax collectors, bent Indian agents, greedy financial manipulators, and political bosses. Assembling the facts surrounding these extraordinary events required historical detective work that was both fascinating and frustrating. The effort drew on my experiences as a criminal defense lawyer in cases involving private and public corruption. Though hard conclusions are elusive with this part of the story, the evidence paints an unsettling portrait of boodle and payoffs that might well have determined one of the critical moments in America’s history.

  As long as the Constitution holds the nation together, the story of the Johnson trial will be an important one. Twice in my lifetime, impeachment has stopped the nation in its mad rush to the great American future. Richard Nixon resigned in August 1974 rather than face the impeachment articles approved by the House Judiciary Committee. Bill Clinton was the second president in history to be impeached by the House of Representatives; after a brief proceeding in the Senate, he was acquitted on all charges. Yet those episodes pale when compared to the fervor that rocked the nation in 1868, when Andrew Johnson stood accused before the Senate sitting as a court of impeachment. At that moment, only the impeachment clauses of the Constitution stood between the nation and a second Civil War.

  BAD BEGINNINGS

  SPRING 1865

  This Johnson is a queer man.

  ABRAHAM LINCOLN, EARLY 1865, AFTER JOHNSON PROPOSED TO SKIP HIS OWN INAUGURATION AS VICE PRESIDENT

  ANDREW JOHNSON OF Tennessee felt shaky on the morning of March 4, 1865. Despite the cold rain that was drenching Washington City, it should have been the most gratifying day of his fifty-six years. At noon, he would be sworn in as vice president of the United States. A man who never attended a day of school would become the nation’s second-highest official. Still, despite the excitement of his own Inauguration Day, Johnson did not feel right. It might have been the lingering effects of a fever that had struck him over the winter. Or it might have been nerves—a month before, he had proposed not to attend the inauguration at all, only to be overruled by the president, Abraham Lincoln. Or it might have been the residue of a hard-drinking celebration the night before.

  Johnson had a good deal to celebrate. With determination and talent, he had built a tailoring business in his home town of Greeneville in the hill country of East Tennessee. He prospered in real estate deals and rose steadily through every level of government, serving as alderman, mayor, state senator, congressman, governor, and senator. Now he would become vice president, one step from the pinnacle of American politics. He was proud of his plain origins and his high achievements. He had a right to be.

  Banner for the Lincoln-Johnson ticket in the 1864 election.

  It was a daunting time to come to the highest level of the American government. After almost four years of slaughter that took 600,000 lives on both sides, the Civil War was coming to its ghastly close. Somehow the nation would have to be reunited—“reconstructed” was the favored term. President Lincoln worked to temper the military victory with compassion for the defeated, to quench both the rebellion and the fiery politics that kindled it, knitting together the bitter enemies of a long war. To restore a shared sense of being Americans, he preached national unity. Lincoln’s Republican Party had changed its name to the “Union Party” for the 1864 election. Picking Johnson—a Southerner and a Democrat—to run for vice president had been part of that message of national unity.

  Until the Republicans nominated him for vice president, Johnson was best known for a single courageous act. In 1861, the senators and congressmen from eleven Southern states had to decide whether to follow their states into rebellion. Only one, Senator Andrew Johnson of Tennessee, stood with the Union. Since 1862, Johnson had been Tennessee’s military governor, struggling to manage a state crisscrossed by contending armies. By adding Johnson to their ticket, Republicans hoped to appeal to Democrats and show that they were not just a Northern party. Though Lincoln’s modern reputation now towers over the era, he feared the judgment of his countrymen in the 1864 election. On August 23, just a few weeks before the voting began, he confessed in a private memorandum that he expected the voters, weary of the long and bloody war, to reject him and return the Democratic Party to power.

  In the election, Lincoln and Johnson won 55 percent of the vote, carrying all but three states, while the Republican Party won dominating majorities in Congress. Republicans had a 149-to-42 margin in the House of Representatives and controlled the Senate, 42 to 10. Having Johnson on the ticket probably helped, though far more important was a rush of Union military successes—the fall of Atlanta, the conquest of Mobile Bay, and victories in Virginia’s Shenandoah Valley.

  The procession for the Lincoln and Johnson inauguration stepped off from the White House at 11 A.M. Thousands of marchers, dripping wet, plunged into streets thick with mud. The military escort included units of white soldiers and some of Negro troops, followed by brass bands, fire companies drawing their engines, and the lodges of Odd Fellows and Masons. Lincoln and Johnson did not march. They were already in the Capitol Building, sixteen blocks away, out of the nasty weather.

  The vice president’s ceremony was to be in the Senate chamber, familiar ground for Johnson. Standing in that chamber in the winter of 1861, he had pledged never to abandon his country. “I am unwilling,” he declared then, “to walk outside of the Union which has been the result of the
Constitution made by the patriots of the Revolution.” Now, four years later, the Senate was vertically segregated for his inauguration. The galleries above, except for the press and diplomatic seats, were reserved for ladies. The Senate floor held members of Congress, executive officials, and the diplomatic corps. Lincoln’s seven-man Cabinet was at the very front, to the right of the main aisle.

  Before the ceremony began, Johnson waited in the office of Vice President Hannibal Hamlin, the man the Republicans dumped from their ticket to make room for Johnson. Hamlin, an antislavery man from Maine, had offered too few political advantages for the critical election. Sitting with Hamlin and Hamlin’s son, a Union Army general, Johnson was out of sorts. “Mr. Hamlin,” he said, “I am not well, and need a stimulant. Have you any whiskey?”

  Vice President Hamlin, a teetotaler, had banned the sale of liquor in the Senate restaurant. To accommodate his guest, he sent out of the building for a bottle. When the whiskey arrived, Johnson tossed down a tumbler of it, straight. Feeling reinforced, he announced that his speech at noon would be the effort of his life. Then he polished off a second glass of whiskey. Word came that it was time to start. Hamlin offered Johnson his arm. The two men passed a few steps down the corridor when Johnson turned back to the vice president’s office. He quickly poured out a third glass of whiskey and drank it down. Hamlin looked on in amazement, according to his son: “[K]nowing that Johnson was a hard drinker, [Hamlin] supposed that he could stand the liquor he had taken.” Unfortunately, on his own Inauguration Day, he could not.