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impeached

28 july 2009

Like all good Catholic families in the 1960s, my grandparents owned a copy of John F. Kennedyís Profiles in Courage. Laid up in their back bedroom one summer with childhood ailments, I marveled at these courageous profiles, refracted through the authorís martyrdom. Prominent among the Profiles was that of 19th-century Kansas Senator Edmund G. Ross, caster of the acquitting vote that kept impeached President Andrew Johnson in office. At eight years old, I didnít have independent evidence that Ross wasnít the most courageous man in early American political history. So I grew up admiring Ross for preventing – I guess, for preventing some imbalance in American government that surely would have ensued if heíd voted to remove the President.

Just a few years later, of course, a President was removed from office via the impeachment process, though without a trial. Nothing terribly bad happened to the Republic; if anything, faith in the Presidency was much restored. In Impeached, a new study of the Johnson impeachment, David Stewart concludes that nothing very awful would have happened if Johnson had been removed back in 1868.

At the age of eight, I knew nothing about the racial and sectional contexts of the Johnson impeachment. Moreover, Kennedy and other writers on the subject were doing their best to hide those contexts from me. Central to American historiography in the century after Andrew Johnson was a tepid subscription to the ideals of The Birth of a Nation. In this bizarre version of history, Johnsonís impeachers were so infatuated with progressive fads that they were willing to shred the Constitution. Fortunately, the story went, brave souls like Ross prevailed, and the American system was saved. Kennedy and other historians drained the aggressive racism out of the Birth-of-a-Nation narrative, leaving it rather abstract and quite incomprehensible, if stirring in its vague declamations.

Stewart, first of all, restores the contexts. Johnson was determined to re-Confederate the South. He backed the most abhorrent attempts to turn Southern state governments into apartheid regimes. For Stewart, the villain of The Birth of a Nation becomes the great hero of the impeachment summer: Thaddeus Stevens, the unyielding egalitarian who left no route unexplored in his desire to remove the President. Indeed, Stevens comes across in Stewart's portrait as a good-humored leader whose ideals were far ahead of his time, but who was an effective compromiser when he needed to be. I'd like to read more about Stevens, who has long been a melodrama villain in historians' treatments of the Radical Republicans.

Stewart then invites us to contemplate the worst. Say Johnson had been removed. A none-too-Presidential Senator from Ohio named Ben Wade would have become President for the few months that remained of what was originally Abraham Lincolnís second term. Ulysses S. Grant would have been elected President – as he was in real life. Control of Federal patronage in some key Senatorsí states might have been distributed differently for a while, but barely a ripple of Johnsonís presence in and disappearance from the White House would have touched American politics in the 1870s.

The larger issue sometimes broached in pro-Ross historiography is that removal would have permanently upset the Constitutionís famed balance of powers. Stewart doubts that, too. Johnson was hugely outnumbered by an enemy Congress that he defied at every turn, at a hugely contentious juncture in American history. The wisdom of the Founders required a two-thirds Senate vote for removal of a President. Itís the rare President who so completely loses the confidence of Congress that he canít scrape up one-third of the Senators.

The Johnson case set procedural precedents for impeachment, Stewart finds. As unpopular and outnumbered as Johnson was, early attempts to impeach him foundered because the House could not attach its accusations to specific crimes. The best they could say was that Johnson foolishly defied the will of the section that had just won a titanic civil war. That conduct may have been both impolitic and evil, but itís hard to argue that Johnsonís overt actions – cashiering generals, in particular – were criminal. Johnson acted well within the powers of his office.

So Congress set about ambushing him. They passed a Tenure of Office Act, giving federal officials, including Cabinet secretaries, well, tenure. When Johnson fired the Secretary of War, Edwin Stanton, he put his head in the impeachment noose.

Ever after, American impeachment has involved at least a quasi-criminal component. It has never functioned as a parliamentary vote of no confidence. (Indeed, in a parliamentary system, Johnson would never have come near the prime ministerís office; heíd have been the leader of a junior faction in a coalition government, at best.)

Richard Nixon was removed from office for outright crimes. Bill Clinton, inexplicably detested by conservative Republicans despite his moderate record in office, was impeached for quasi-crimes (Stewart attributes the Clinton impeachment to a "moralistic temper tantrum," 321.) So quasi were Clintonís misdeeds (lying to save embarrassment, in testimony irrelevant to a frivolous lawsuit) that his acquittal was inevitable and his popularity remained high. Meanwhile, any number of Presidents have made a disastrous mess of running the country, from Grant himself through Harding, Hoover, and George W. Bush – and the Presidency, largely unaffected by impeachment, has just kept getting stronger.

Particularly interesting is the snowballing power of the President to simply ignore laws that he doesnít want to enforce. Nixon was removed not for that despotic habit, but for a criminal obstruction of justice that would have been indictable even outside the political arena. Congress, perhaps daunted by their own exercise of power in 1974, didnít even seriously try to impeach Ronald Reagan for flouting the Boland Amendment in the 1980s; Reaganís lawbreaking, like Andrew Johnsonís, involved setting a contrary policy, not breaking into peopleís offices.

George W. Bush, famous for defying the will of Congress in myriad "signing statements," became so exasperatingly unpopular by 2006 that his own party made him a pariah. But 43 came nowhere close to impeachment even from an enemy Congress. Ironically, the strong Presidency in the American system makes it near-impossible for the Presidentís own party to remove him, no matter how disastrous his leadership becomes. Harry Truman in 1952, LBJ in 1968, and Bush in 2008 would all have lost the leadership of a parliamentary party and consequently of the nation. As it was, the nominees of their own parties, unable to distance themselves enough from the sitting President, went down to defeat.

Sarah Palin famously remarked that "our founding fathers were very wise there in allowing through the Constitution much flexibility there." She was talking about the Vice Presidency. But in removal of a President, the Fathers did not allow much flexibility there. To be removed from office, a President needs to have both hands photographed leaving the cookie jar. The case of Andrew Johnson established that even the most diametric political opposition between a President and a huge majority in Congress will not be enough to unseat him.

Stewart, David O. Impeached: The trial of President Andrew Johnson and the fight for Lincolnís legacy. New York: Simon & Schuster, 2009.

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