The Case for Impeachment. Allan Lichtman J.

an impeachment trap, Congress inserted a clause that said any violation constituted a “high crime and misdemeanor.” And then, they waited.¹⁷

      JOHNSON STANDS HIS GROUND

      Johnson was at the defining moment of his presidency. His response to Congress’s challenge would decide his own fate as president, with profound implications for every successor in the White House. He could battle Congress and risk impeachment or withdraw from the fray and count down passively the final days of his presidency. Or he could change his ways and reach an accord with the Reconstruction Congress.

      Johnson stayed true to his notoriously pugnacious character and chose to fight. He taunted Congress by deliberately violating the Tenure of Office Act. “I have been advised by every member of my Cabinet that the entire Tenure-of-Office Act is unconstitutional,” he later said.¹⁸

      The House of Representatives struck back, by voting along party lines to approve articles of impeachment tied to Johnson’s violation of the act. “He is not Napoleon,” said Republican representative Tobias A. Plants of Ohio, “there will be no coup d’état!” To keep open all options for the Senate, members voted for eleven verbose and repetitive articles, totaling some forty-five hundred words.¹⁹

      In the fixation on the dubious Tenure of Office violation, lost were the potentially more serious charges that Johnson had abused presidential power to obstruct Reconstruction and delegitimize another branch of government. Embedded within the garrulous articles was the charge that his conduct was “denying and intending to deny, that the legislation of said Congress was valid or obligatory.” The articles charged him with saying that Congress was not a legitimate body “authorized by the Constitution to exercise legislative power.” The articles further charged that he had willfully schemed to “prevent the execution” of legislation vital to congressional Reconstruction.²⁰

      Johnson’s last chance to fight for his survival in the Senate had arrived. The Senate trial dragged on for nearly three months, with House prosecutors and defense lawyers clashing on issues that cut to the heart of the meaning of impeachment and the scope of presidential authority.

      IMPEACHMENT’S BIG ISSUES

      America’s founders, insisted the prosecutors, placed no restrictions on what qualifies as an impeachable offense. Impeachment is not meant solely “for the punishment of crime,” argued the chief prosecutor, Benjamin F. Butler of Massachusetts. A president should be impeached and convicted if he “imperils the public safety” and shows himself “unfit to occupy official position.” Wrong, said Johnson’s defense attorney Benjamin Curtis. Impeachment, he argued, requires a violation of law and not just of any law, but of “only high criminal offenses against the United States.” The Senate cannot sit “as some nameless tribunal with unbounded and illimitable jurisdiction.”²¹

      Prosecutors claimed that Johnson had no absolute authority to disobey the law, and that his discretion begins and ends with his veto power. The right “to judge upon any supposed conflict of an act of Congress with the Constitution is exhausted when he has examined a bill sent to him and returned it with his objections,” Butler said. After that, he “must execute the law, whether in fact constitutional or not.” Otherwise, “the government is the government of one man.”²²

      The House’s constriction of presidential power “does offend every principle of justice,” responded another presidential lawyer, William Evarts. “If an act be unconstitutional [the president] had a right to obey the Constitution,” and “to raise a question between the Constitution and the law.” The prosecutors, he warned, had proposed a subversive doctrine that “constitutional laws and unconstitutional laws are all alike in this country,” and the president must obey both equally.²³

      In their final bold argument against excessive presidential authority, prosecutors said that the laws of Congress restricted the president’s powers to remove federal officials. “If we concede such royal power to a president,” said Representative John A. Logan of Illinois, “he is henceforth the government.” Americans must ask, “Will you have Andrew Johnson as President or King?” Johnson’s attorney general, Henry Stanbery, who rose from a sickbed to defend his president, argued that the Constitution granted the president absolute authority over removing administration officials. He fired Stanton “in the exercise of an undoubted power vested in him by the Constitution,” performing “a strictly executive duty.”²⁴

      Eventually, the Senate voted on three of the House’s charges, only to fall one vote short of the two-thirds needed for conviction in each case. Seven Republicans joined all the minority Democrats in voting for Johnson’s acquittal. “I knew he’d be acquitted; I knew it,” declared Johnson’s wife, Eliza, unsurprisingly his staunchest supporter.²⁵

      Yet defecting Republicans who saved Johnson’s presidency may have been informed less by a quest for justice than by the rules of presidential succession at the time that would have elevated the controversial President Pro-Tem of the Senate, Benjamin Wade of Ohio, to the presidency. The outspoken Senator had earned the nickname of “Bluff” and alienated many fellow Republicans with his radical views on Reconstruction and his support for paper money and protective tariffs. James Garfield, then a member of Congress, privately wrote that conservative Republicans feared “the Presidency of Ben Wade, a man of violent passions, extreme opinions, and narrow views.”²⁶

      A WARNING FOR TRUMP

      Johnson’s acquittal may have pleased his wife, but it resolved none of the momentous issues debated at the trial. Johnson narrowly escaped removal, but a healthy majority of senators still had voted for his conviction. Although the Johnson precedent did not define the grounds for impeachment or disinfect the process from policy and politics, it showed how an impeachment and trial could benefit the nation. After his impeachment, Johnson tamed his invective and moderated his opposition to Republican Reconstruction. He served out quietly his last nine months in office without renewing his conflicts with Congress.²⁷

      To this day, impeachment remains subject only to the judgments of Congress. Too liberal use of impeachment could diminish the standing of Congress or unleash a chain reaction of uncontrolled partisan warfare. But too much restraint threatens to allow corruption and abuse to fester in the most powerful office in the world.

      Andrew Johnson’s New York Times obituary contains a warning for Donald Trump. The Times observed that “Undoubtedly the greatest misfortune that ever befell Andrew Johnson was the assassination of President Lincoln.” Johnson’s fatal flaw, it said, was that “he was always headstrong and ‘sure he was right’ even in his errors.” The chapters to come will intimately acquaint you with Trump’s arrogance and errors. Don’t be fooled by the shifting decisions, policies, and pronouncements of a fast-moving presidency. May this be your guide to Trump’s many vulnerabilities to the ultimate sanction of restraint on a president, and your foundation for building a case for his impeachment.²⁸

       CHAPTER 2

       The Resignation of Richard Nixon: A Warning to Donald Trump

      ____________

      This is the operative statement. The others are inoperative.

       —Richard Nixon press secretary Ron Ziegler, April 17, 1973

      You’re saying it’s a falsehood. And they’re giving—Sean Spicer, our press secretary—gave alternative facts.

       —Donald Trump senior advisor Kellyanne Conway, January 22, 2017

      In a retrospective on the Nixon scandals forty years after the Watergate