"The Impeachment and Trial of Andrew Johnson", by Michael Les Benedict

This is a scholarly monograph, containing 360 footnotes. The author studied contemporary newspaper accounts and private correspondence from the participants to put together this detailed account of the efforts to impeach Andrew Johnson and remove him from office.

The author's mission with this book is to correct what he perceives as history's overly unkind treatment of the radical Republicans who sought to remove Johnson from office. He states that the modern view is that he Republican efforts were well-meaning, and, if anything, did not go far enough. His sense of this trend is that the studies of reconstruction in general are now more kind to the Republicans, but that the Johnson impeachment is still tainted by the original harsh view, an alleged inaccuracy which Benedict seeks to correct.

Even taking this account at face value, the author's conclusions are not supported by the facts, by the law, or by good political sense.

Dealing with the latter first, we note that the original impeachment effort, in December of 1867, failed miserably, with the final vote being 108-57 against impeachment. However, by February 24, 1868, the situation had changed so dramatically the the House voted overwhelmingly to impeach the resident. And what had changed during the interim two-month period? The answer is that Johnson had attempted to remove Secretary of War Edwin Stanton from office, in apparent violation of the Tenure in Office Act.

From a political standpoint, this impeachment effort seems absurd, with an election coming up later that same year. Why not simply vote Johnson out of office in the upcoming election?

From a legal standpoint, the action was quite dubious because it is doubtful that the Tenure in Office Act even applied to Johnson's firing of Stanton. The Act only covered cabinet members "for the term of the president who appointed them and one month thereafter". Since Stanton had been appointed by Lincoln, not by Johnson, Johnson's defenders argued that he was not covered by the Act.

The Republicans responded that the "term" within the meaning of the act was still in effect, since Lincoln's second term was 1865-1869. They also argued that by allowing Stanton to continue as Secretary of War, Johnson had in effect "reappointed" him, and was therefore covered by the Act.

Resolution of this issue was difficult, because the Tenure in Office Act was a product of a compromise crafted in a Senate-House conference committee to reconcile the differences between the two bodies, and nobody was quite sure what the intent of the final outcome was with regard to the Johnson cabinet. Benedict admits that the only historian to delve into this issue intensively has concluded that the Democrats were right on this issue.

Another argument used by the Republicans was that by submitting the proposed removal of Stanton to the Senate for its approval, in conformity with the requirements of the Tenure in Office Act, the president had admitted that the Act applied to his cabinet, and he should therefore be estopped from later denying the Act's validity. This argument is laughably weak, and yet Benedict comes back to it over and over again to support his weak position on the impeachment question.

The fact is that I can act in conformity with a law, even while retaining a belief that the law does not apply. There is indeed a legal concept of estoppel, but it has no application to this case. Estoppel applies to the situation in which one party has materially changed his position to his detriment, in reliance on my actions, and this reliance is reasonable; in that situation I may then be estopped from changing my position.

A further augment is that even if the Tenure in Office Act did apply to Stanton, the president has the right to remove him if he had an honest belief that the law itself was unconstitutional, and the courts would then decide the question in due course. Of course, the argument that the Act was not constitutional is quite strong, since part of the president's executive function is to remove people working under him. Yes, the Senate is constitutionally empowered to advise and consent to nominations to cabinet posts, but the constitution says nothing about any right of the Senate to block removals.

Surely, then, the Act must be considered unconstitutional as an infringement upon the separation of powers contemplated by the constitution.  However, the Republican position was that the president had no right to disobey a law merely because h believes it to be unconstitional. In the words of Iowa congressman James F. Wilson, "If an officeholder believes he cannot in good faith execute the law as his duty requires, he must resign."

We have seen that the impeachment grounds were weak, whether they be viewed from a political standpoint, a factual standpoint, or a legal standpoint. But the most interesting issue is the larger one regarding he meaning of the impeachment clause in the constitution. This issue arises because of the vagueness of that clause, which provides for removal from office for "treason, bribery, or other high crimes and misdemeanors". Since the meaning of the phrase "high crimes and misdemeanors" is obscure there is obviously room for varying interpretations.

The narrow view of this clause is that a president can only be removed for an indictable offense. The broader view is that espoused by congressman Gearld Ford in 1970 when he sought to impeach Justice Douglas, Ford's view being that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history".

Benedict reveals his bias on the issue when he states: "Those who espoused the narrow view had an extremely difficult task in sustaining it, because in fact it was a novel argument, running counter to precedent, the overwhelming weight of American legal authority, and logic."

What Benedict is espousing is that the president shall serve at the pleasure of the Senate. In other words, a conversion from our system to a parliamentary system, with impeachment being comparable to a "no confidence" vote in the British system. This is obviously contrary to logic and common sense. It would mean the legislative branch would be supreme, rather than one of the separate but equal branches contemplated by the constitution.

The precedent Benedict referred to is indeed there, but it does not support his position. Supreme Court Justice Samuel Chase was impeached by the House in 1804 for his conduct in trying cases under the Sedition Act. The clear pattern of misconduct resulted in eight Articles of Impeachment voted by the House against Chase.

As described in Irving Brant's book, "Impeachment, Trials and Errors", Chase was a bad judge, whose conduct was "unfair, partial, biased, and oppressive". The issue, then, was clearly framed: are bias or incompetence proper grounds for impeachment and removal from office, or must a crime be proven? The Senate in the end recognized that the constititution did not make honest error impeachable, and Chase was acquitted on every count. One vote was unanimous, and the worst vote for chase was 18-16 for conviction, still well short of the two-thirds vote required for removal from office.

The Senate in the Chase case recognized in the end that removal from office for political reasons was not proper. Why, then, should it not be even more clear in he case of President Johnson? Chase had clearly violated proper judicial ethics by his abandoning neutrality and in effect serving as both prosecutor and judge, and doing so for strictly political reasons. President Johnson's conduct falls far short of that, and he was well within traditional prerogatives in wanting cabinet members of his own choosing.

The seven Republicans who voted against removal of Johnson from office have been hailed as heroes, since every one of their votes was needed to avoid conviction. Six of the seven filed formal opinions and all felt that impeachment should only result from "positive violations of the law". Benedict holds a different view, and attempts to poke holes in their stated reasons for voting against conviction, and to strip them of their hero status.

Benedict's problem is that he cannot see the forest for the trees. He nitpicks about various tings Johnson did to thwart the will of Congress concerning reconstruction, but he fails to see the bigger picture. As pointed out by Brant, the constitutional convention specifically considered whether to include "maladministration" as a ground for impeachment; Madison objected to that proposal, stating that "so vague a term will be equivalent to a tenure during the pleasure of the Senate". The attempt was then abandoned. In light of that, Benedict's view of the role of impeachment in our system makes little sense.

Nevertheless, Benedict's book is valuable if the reader is simply seeking to learn more about what exactly happened regarding the impeachment of Andrew Johnson, which was my purpose when I read this book.

If the reader is seeking guidance on the proper role of impeachment in our system, I recommend "Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson", by former Chief Justice William Rehnquist. Rehnquist gives a lot of historical background, and arrives at the view of impeachment advocated in this review.

Rehnquist looks at the results of the Richard Nixon impeachment in 1974, and concludes that the result was entirely consistent with the view of the seven Republican Senators who voted against the removal of Andrew Johnson. The House Judiciary Committee considered five articles of impeachment against Nixon; however, only three of them were adopted, while the other two were rejected as not representing clear and serious abuses of presidential power. The Senate vote against the removal of President Clinton in 1999 is also in line with this standard.