The Tenure Of Office Act And High Crimes
By DEACON MIKE MANNO, JD
Well, it seems like the Impeachment Train has left the station with all the Democrats on board and Engineer Nancy Pelosi has opened the throttle, so its full-speed ahead until arrival at the Senate.
Over the past couple of months, we’ve heard a lot of testimony about the failures and foibles of President Trump and why this statement or that action constitutes an impeachable act. The partisans have lined up, Democrats on the Impeachment Express while the Republicans can’t seem to slow the train down. So now it looks like the Senate will have to make the call.
For a historical perspective most commentators and the public — those who are paying attention — are looking at the two most recent presidential impeachment attempts, those against Richard Nixon and Bill Clinton. As has been pointed out by the press and other historians, in each of the two former cases, the House alleged impeachable crimes that were criminal offenses. For Mr. Nixon it was obstruction of justice and for Mr. Clinton it was obstruction and perjury.
Each ended differently. Richard Nixon resigned before impeachment articles could be voted on by the full House and Bill Clinton was acquitted by the Senate after a truncated trial in which there was not even a majority (one article was 50-50) of the senators voting for conviction, much less the two-thirds required for conviction and removal.
But there was an earlier presidential impeachment, in which a formal trial was held in the Senate where the president, Andrew Johnson, was acquitted by one single vote. Why was he impeached? And why is that trial important to history? In a small nutshell, let’s take a look.
Andrew Johnson was a Southern Democratic senator from Tennessee when the Civil War broke out. Standing on principle, Johnson campaigned against the secession of his home state, but when Tennessee did secede, Johnson refused to secede with it and became the only Southern senator to remain in the Senate. Thus he became a Northern hero of sorts and in 1864, fearing defeat, the Republicans renominated Abraham Lincoln on a Union Party ticket and added Johnson to replace the incumbent vice president, Hannibal Hamlin of Maine.
The Lincoln-Johnson ticket won and Johnson became the nation’s new vice president on March 4, 1865. On April 14 Lincoln was shot by John Wilkes Booth and died the next day, elevating Johnson to the presidency.
Since the South had been defeated and the war over, the main domestic question of the day was Southern Reconstruction. How were the former Confederate states to be readmitted to the union? Or, even more basic, had they even legally left the union?
There soon developed a tug-of-war between the president, who favored a softer approach to Reconstruction, and the Republican Congress, which favored a stricter approach. The congressional Radical Republicans, as history refers to them, passed its Reconstruction legislation which was promptly vetoed by Johnson whose veto was promptly overridden by Congress.
The president, however, held a trump (no pun intended) card: Much of the execution of Reconstruction programs could be controlled by the military which was controlled by Johnson.
Johnson faced one stumbling block in that scenario: Edwin Stanton, the secretary of war. Stanton was politically aligned with the radicals and as secretary had the ability to ameliorate the president’s directives. Fearing Stanton’s removal by Johnson, Congress passed, over a presidential veto, the Tenure of Office Act which required Senate approval for the removal of any officer of the government whose appointment required Senate confirmation.
By this time the relationship between the president and Congress had become strained almost to the breaking point. Insults were traded and Congress had already debated and rejected initial articles of impeachment. The final break came when Johnson tried to replace Stanton with Gen. Lorenzo Thomas. Stanton refused to give up the office and, for a time, had Thomas jailed. Thomas was released when Stanton realized that in court Thomas would claim the unconstitutionality of the Tenure of Office Act.
The dam broke, the radicals had their issue, violation of the Tenure of Office Act and passed eleven articles of impeachment, nine of which in some form involved violation of the act and two for bringing “disgrace…contempt and reproach” on Congress and for bringing ridicule and disgrace to the presidency. These guys really didn’t like — hated may be a better word — Johnson.
On March 5, 1868 — a presidential election year — trial opened in the Senate with Chief Justice Salmon Chase presiding. It concluded, after several delays and recesses, until May 26, when, voting on the most serious charges, the Senate failed by one vote to achieve the two-thirds necessary to convict, 35 guilty, 19 not guilty.
In what has become a historic legend, Kansas Sen. Edmund Ross cast the deciding vote against conviction. Ross was one of a number of Republican senators whose votes were in doubt and enormous pressures were on them to vote to convict. By the day of the vote legend holds that Ross’ vote was the only one unknown. When the chief justice called his name, “Mr. Senator Ross, how say you, is the Respondent Andrew Johnson guilty or not?” Ross stood and mumbled a response, which some claimed to have been “guilty,” but the chief justice not hearing asked again.
Later, Ross wrote, “I almost literally looked down into my open grave. Friendships, position, fortune, everything that makes life desirable to an ambitious man were about to be swept away by the breath of my mouth, perhaps forever.”
The answer this time was loud and clear, “not guilty.”
One of Ross’ fellow Republicans who also voted not guilty was Lyman Trumbull of Illinois. In a reflection on the trial that he considered was one-sided and political, he wrote:
“Once set, the example of impeaching a president for what . . . will be regarded as insufficient causes . . . no future president will be safe who happens to differ with a majority of the House and two-thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them, they will not scruple to remove out of the way any obstacle to the accomplishment of their purposes, and what then becomes of the checks and balances of the Constitution, so carefully devised and so vital to its perpetuity? They are all gone.”
Nine Republicans voted for acquittal. None ever served in elective office again.
The Tenure of Office Act, the violation for which President Johnson was impeached, was repealed in 1877. A similar law was ruled unconstitutional by the U.S. Supreme Court in 1926; it also opined that the Tenure of Office Act was similarly unconstitutional. Ironically, the Johnson defense team tried to make that argument at the impeachment trial but was prevented from doing so by the majority who overruled the chief justice.
Anything sound familiar?
(You can contact Mike at: DeaconMike@q.com.)
