Article II, Section 4:

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.

The impeachment and trial of President Andrew Johnson transpired in the shadow of the Civil War and the assassination of President Abraham Lincoln.1 President Johnson was a Democrat and former slave owner who was the only Southern Senator to remain in his seat when the South seceded from the Union.2 President Lincoln, a Republican, appointed Johnson military governor of Tennessee in 1862,3 and Johnson was later selected as Lincoln’s second-term running mate on a “Union” ticket.4 Given these unique circumstances, President Johnson lacked both a party and geographic power base when in office, which likely isolated him when he assumed the presidency following the assassination of President Lincoln.5

The majority Republican Congress and President Johnson clashed over, among other things, Reconstruction policies implemented in the former slave states and control over officials in the Executive Branch.6 President Johnson vetoed twenty-one bills while in office, compared to thirty-six vetoes by all prior Presidents. Congress overrode fifteen of Johnson’s vetoes, compared to just six with prior Presidents.7 On March 2, 1867, Congress reauthorized, over President Johnson’s veto, the Tenure of Office Act, extending its protections for all officeholders.8 In essence, the Act provided that all federal officeholders subject to Senate confirmation could not be removed by the President except with Senate approval,9 although the reach of this requirement to officials appointed by a prior administration was unclear.10 Congressional Republicans apparently anticipated the possible impeachment of President Johnson when drafting the legislation; Republicans already knew of President Johnson’s plans to fire Secretary of War Edwin Stanton and the Act provided that a violation of its terms constituted a “high misdemeanor.” 11

President Johnson subsequently fired Secretary Stanton without the approval of the Senate. Importantly, his cabinet unanimously agreed that the new restrictions on the President’s removal power imposed by the Tenure of Office Act were unconstitutional.12 Shortly thereafter, on February 24, 1868, the House voted to impeach President Johnson.13 The impeachment articles adopted by the House against President Johnson included defying the Tenure of Office Act by removing Stanton from office14 and violating (and encouraging others to violate) the Army Appropriations Act.15 In addition, one article of impeachment accused the President of making “utterances, declarations, threats, and harangues” against Congress.16

The Senate appointed a committee to recommend rules of procedure for the impeachment trial which subsequently were adopted by the Senate, including a one-hour time limit for each side to debate questions of law that would arise during the trial.17 Chief Justice Salmon P. Chase presided over the trial and was sworn in by Associate Justice Samuel Nelson.18 During the swearing-in of the individual Senators, the body paused to debate whether Senator Benjamin Wade of Indiana, the president pro tempore of the Senate, was eligible to participate in the trial. Because the office of the Vice President was empty, under the laws of succession at that time Senator Wade would assume the presidency upon a conviction of President Johnson. Ultimately, the Senator who raised this point, Thomas Hendricks of Indiana, withdrew the issue and Senator Wade was sworn in.19

An important point of contention at the trial was whether the Tenure of Office Act protected Stanton at all due to his appointment by President Lincoln, rather than President Johnson.20 Counsel for President Johnson argued that impeachment was inappropriate for violation of a statute whose meaning was unclear, and the statute barring removal of the Secretary of War was an unconstitutional intrusion into the President’s authority under Article II.21

The Senate failed to convict President Johnson by one vote on three different articles, and it failed to vote on the remaining eight.22 However, reports indicate that several Senators were prepared to acquit if their votes were needed.23 Seven Republicans voted to acquit; of those Senators, some thought it questionable whether the Tenure of Office Act applied to Stanton and that it was improper to impeach a President for incorrectly interpreting an arguably ambiguous law.24

Certain commentators have concluded that the failure to convict President Johnson coincides with a general understanding that impeachment is appropriate for abuses of power or violations of the public trust, but does not pertain to political or policy disagreements with the President, no matter how weighty.25

Footnotes

1

See William H. Rehnquist, Grand Inquests: The Historic Impeachments 185–98 (1992).

2

Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 128 (1992).

3

Id.

4

Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 222 (1999)

5

Bushnell, supra note 2, at 128.

6

Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 1–25 (1973); Keith Whittington, Constitutional Construction 113–57 (1999).

7

Tassel & Finkelman, supra note 4, at 222–23.

8

Tenure of Office Act, Pub. L. No. 39-154, 14 Stat. 430 (1867). Tassel & Finkelman, supra note 4, at 224.

9

Tenure of Office Act, Pub. L. No. 39-154, 14 Stat. 430 (1867). See Michael J. Gerhardt, Constitutional Arrogance, 164 U. Pa. L. Rev. 1649, 1663 (2016).

10

Rehnquist, supra note 1, at 228.

11

Les Benedict, supra note 6, at 92–125.

12

Rehnquist, supra note 1, at 230.

13

Cong. Globe, 40th Cong. 1400 (1868).

14

See Tenure of Office Act, ch. 154, § 6, Pub. L. No. 39-154, 14 Stat. 430. Incidentally, such tenure protections were later invalidated as unconstitutional by the Supreme Court. See Myers v. United States, 272 U.S. 52, 106 (1926).

15

Tassel & Finkelman, supra note 4, at 226.

16

Id. at 235.

17

Rehnquist, supra note 1, at 219–20.

18

Id. at 221.

19

See Akhil Reed Amar, America’s Unwritten Constitution (2012).

20

Rehnquist, supra note 1, at 221.

21

Id. at 230–31.

22

3 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 2443 (1907); see Rehnquist, supra note 1, at 234–35.

23

Tassel & Finkelman, supra note 4, at 221; Hans L. Trefousse, Impeachment of a President: Andrew Johnson, the Blacks, and Reconstruction 169 (1975).

24

Rehnquist, supra note 1, at 240–46.

25

Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 101 (1984); Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 921–22 (1999).