Politics, Prejudice and Procedure

Recent years have seen some erosion in the traditional view of the Andrew Johnson impeachment trial as a lawless episode of political partisanship. Johnson's reputation has worsened even as historians have come to see the essentially moderate character of the Republican Reconstruction program.[1] Legally, the impeachment is not as self-evidently insupportable as it once seemed. Scholars and (thanks to Watergate) public officials now generally agree that impeachable offenses need not be indictable crimes, [2] as Johnson's lawyers argued and some of the Republicans who voted to acquit him supposed.[3] But most scholars still take it for granted that, as Raoul Berger has written, the trial was unfairly conducted and the judges prejudiced:

“What made the trial 'disgraceful' was not that the charges were altogether without color of law but that the proceeding reeked with unfairness, with palpable prejudgment of guilt.”[4]

This, the received view, I regard as mythical as the other tenets of the old historiography of Reconstruction. Political and personal prejudice there certainly was, but it worked both ways, and on balance, it worked to Johnson's benefit. Far from being one-sided, the Senate's procedural and evidentiary rulings were often more favorable to the defense than they should have been. Johnson had eminent counsel who outperformed the House-appointed Managers and made the most of the prosecution's weaknesses. Chief Justice Chase, presiding over the trial, succeeded in enlarging his own role in the trial and tilting toward the defense in his comments and rulings. Despite the partisan feeling against him, Johnson was not openly deprived of his constitutional rights.[5] Behind the scenes he bargained for the votes of conservative Republicans. Since Johnson was acquitted by only one vote, [6] it is more likely that a fairer trial would have resulted in his conviction.

Of course the impeachment was thoroughly political. The in-court statements of both sides reflected awareness that the real issue was presidential obstruction of Congressionally ordered Reconstruction.[7] But the Framers of the Constitution would probably not have been shocked by that dimension of the case. They expected partisan excesses by the nouse's prosecutors to be redressed by tnal before the Senate where, as Hamilton wrote, the “security to innocence” afforded by the requirement of a two-thirds vote to convict “will be as complete as itself can desire.” [8] As Michael Les Benedict points out, if politics motivated the majority that voted to convict, it equally actuated the minority that voted to acquit.[9]

Johnson's lawyers and the scholars who echo their arguments contended that the Senate, by passing upon charges that included defiance of congress, was judging its own case; that further bias from self-interest was injected by the happenstance that the President of the Senate, Benjamin Wade, would succeed Johnson; and that Wade's own participation in the voting was especially improper.[10] Some of the Managers such as Thaddeus Stevens and Benjamin Butler had long called for impeachment and so, it is said, were biased against the accused.[11] (But then the Managers participated as prosecutors, not judges, and took no oath to act impartially.) The argument from senatorial self-interest proves too much, being essentially an argument against impeachment as a process. The Framers must have anticipated that many Senators would be definitely friendly or inimical to the President, and it would be absurd to disqualify them as in an ordinary trial.[12]

The circumstance that Wade was next in succession had the most appeal for so-called Radical Republicans who hardly needed further incentive to remove a president they considered a traitor. But the prospect frightened, anti-Johnson but conservative Republicans who detested Wade's high-tariff, soft-money, pro-labor and women's suffrage sentiments: such men feared that Wade would use his patronage power to secure the 1868 Republican vice-presidential nomination.[13] Defense counsel Evarts alluded to the “shock” and “disturbance” and “confusion” which would ensue from such a succession. At least three of the seven “recusant” Republicans who voted to acquit were personal enemies of Wade.[14] And so was the Chief Justice, Chase. The men had been at odds as rival Ohio Republican leaders since the 1850's, and Chase believed, with good reason, that Wade's dark-horse presidential ambitions in 1860 doomed Chase's own campaign for the Republican nomination.[15] As events were to reveal, Chase was well positioned to frustrate Wade's hopes. After the trial a Detroit newspaper wrote: “Andrew Johnson is innocent because Benjamin Wade is guilty of being his successor.” [16]

As for Wade's own voting to convict, it was doubtless technically improper, [17] but it hardly mattered. Wade and his supporters felt that his state was entitled to both of its votes, ballotting equally with other states; nonetheless, he refrained from voting until the day of ballotting on the verdict, and he voted to convict only after acquittal was already a mathematical inevitability. As was pointed out at the time, Johnson's son-in-law Senator Patterson should have been disqualified if anyone was, but he voted (consistently pro-defense) throughout the trial.[18] Since one vote to acquit is effectively worth two to convict, the balance of bias favored the President. As a legal matter the Senate, notwithstanding its biases, had the power and the duty to try Johnson. Under the legal doctrine of necessity, a tribunal whose members are subject to disqualification for bias or interest must nevertheless act if there is no other body with jurisdiction to proceed.[19] It is, after all, somewhat circular to complain of politicization in the Johnson impeachment when the nature and magnitude of the issues raised by Johnson's course of conduct must necessarily amuse political passions.[20]

Another aspect of the issue of prejudice is the Managers' occasional pejorative references to the President – the “great criminal,” as even conservative Manager Bingham called him [21] – but there is no evidence that they had any real prejudicial impact. A famous example took place toward the close of Manager Butler's otherwise pedestrian three-hour opening statement when he said with reference to Johnson, “By murder most foul he succeeded to the Presidency, and is the elect of an assassin to that high office.” [22]

Probably this remark did the prosecution more harm than good, [23] but in any event it was the kind of oratorical extravagance typical of both the 19th century courtroom and the political performance then a prime source of popular edification and entertainment. Johnson, certainly, was anything but squeamish in his speeches. In fact, the context of the Butler statement was his discussion of Article Ten, a minor article accusing Johnson of vilifying the Congress based on statements during his “swing around the circuit” when he called his Republican critics traitors, likened himself to a Christ among Judases, and generally shocked Republicans by the virulence of his invective.[24] Such flashes of color only stand out, for better or for worse, on account of the dullness of the larger part of a sprawling 1200 page transcript. Although Johnson's lawyers may have been somewhat more restrained, one of them carried his oratory so far as to be censured by the Senate for in effect challenging Butler to a duel.[25] Critics of the Managers' language may be unaware of the latitude traditionally accorded to the prosecutor in abusing an accused. In California, for instance, prosecutors may use “appropriate epithets” if the language is warranted by the evidence; thus defendants have been called “sneaky mother killer” “the lowest of the lows,” and “a smart thief and a parasite on the community.” [26] Johnson had much less to complain of than many less eminent accused malefactors.

The Constitution provides that “the Senate shall have the sole Power to Try all Impeachments,” and specifies that “when the President of the United States is tried, the Chief Justice shall preside.” The Chief Justice replaces the Senate's usual presiding officer, the Vice-President, on such occasions for the obvious reason that the latter is next in line of succession to the presidency, and might be biased.[27] The Chief Justice seemed a safe choice to preside because, as Justice Story wrote, “his impartiality and independence could be as little suspected as those of any person in the country.” [28] Unfortunately the ambitions of the Chief Justice in 1868 confounded the Framers' precautions. Chase is often credited with conducting the trial impartially, [29] but there is no doubt in my mind that he prejudged the merits of the case and it is clear that he had a lively personal interest in its outcome.

Chase, like the proponents of impeachment, understood how to pursue political ends by legal means. Before the Civil War he was instrumental in formulating a dubious yet plausible constitutional grounding of the Free Soil Party ideology inherited by the new Republican Party.[30] Despite his single-issue radicalism respecting slavery (and later black suffrage), Chase was a conservative at heart. Although he opposed Johnson's Reconstruction measures, he made known his opposition to impeachment “as a policy.” During the trial he wrote to correspondents that Johnson had “a perfect right” to dismiss Secretary of War Stanton regardless of the provisions of the Tenure of Office Act – “a grave violation of judicial ethics,” in Michael Benedict's words.[31] Even more important in shaping Chase's behavior than his legal prejudgment, political preference, and personal antipathy (to Wade and to Stanton [32]), was Chase's almost lifelong, obsessive pursuit of the presidency. He sought the Republican nomination in every election year from 1856 through 1868. Lincoln said that Chase (his Secretary of the Treasury until 1864) was “a little insane” on the subject of the presidency, and Lincoln's only concern in appointing him Chief Justice was his (well-founded) fear that Chase would “neglect the place in his strife and intrigue to make himself President.” A fellow Justice said of Chase that “his first thought in meeting any man of force was.. .how can I utilize him for my presidential ambitions.” By the time of the impeachment trial it was apparent that Grant would be the Republican nominee. Chase had hitherto been considered a Radical Republican, but changing parties for the fourth time was easy enough. During the trial, Chase solicited the Democratic nomination – that is, the nomination of what was de facto Johnson's party insofar as he had any.[33] At best, then, Chase fell a bit short of being the one person whose “impartiality and independence could be as little suspected as those of any person in the country.”

Before the trial commenced the Senate committee which drafted rules of procedure invited Chase's comments. Chase wanted the Senate to organize itself as a “Court of Impeachment,” distinct from its normal legislative capacity; and as presiding officer of that “court” he sought a vote for himself.[34] The Senators, some of them now doubtful of Chase's political loyalties, took care to delete all references to the Senate as a court of impeachment. The original version of the rules gave the presiding officer the right to make preliminary rulings on evidentiary matters, subject to Senate reversal after one-fifth of the Senators challenged a ruling; now Senator Chandler, Radical Republican from Michigan, sponsored an obscurely worded substitute amendment whose purpose was evidently to shift this power back to the Senate collectively.[35]

By determined manipulation and good luck, Chase undid the committee's work soon after Wade relinquished the chair to him. Almost the first matter to arise was a Democratic challenge to Wade's right to take the oath. After some debate Senator Grimes (later a recusant) moved that the “court” adjourn for a day; Senator Howard replied that the Senate should adjourn itself and “relieve” the Chief Justice and pass to its legislative business – a subtle distinction, but one that posed a controversial issue. Chase settled it, for the time being, by an adroit fait accompli: “The court must first adjourn. Senators, you who are in favor of adjourning the court until to-morrow at 1 o'clock will say 'ay,' and those of the contrary opinion will say 'no'.” Those who denied that the Senate was a Court could not say anything, and “the motion was agreed to.” [36] The next day a point of order arose regarding which Senator Howard invoked Rule XXIII of the impeachment rules. Chase made his move: “The twenty-third rule is a rule for the proceeding of the Senate when organized for the trial of an impeachment. It is not yet organized; and in the opinion of the Chair the twenty-third rule does not apply at present.” Senator Drake appealed the decision of the chair, but, to the cheers of the gallery, Chase was sustained by a 24-20 vote. Following up on this success, Chase told the Senate that, having now passed over into its special impeachment capacity, it would have to readopt its impeachment rules – and again he posed the question in such a way that a Senator could vote for or against the rules, but not vote against Chase's presumption that the rules had to be readopted: “Senators, you who think that the rules of proceeding adopted on the 2nd of March should be considered as the rules of this body will say 'ay'; contrary opinion, 'no'.” The ayes prevailed.[37]

Among the rules adopted (and readopted) by the Senate was Rule VIII, requiring the accused to “file his answer to said articles of impeachment” on the date specified in the summons served upon him; if he failed to appear or file an answer, “the trial shall proceed, nevertheless, as upon a plea of not guilty.” Defense counsel appeared on the appointed date, March 13, but instead of filing an answer they sought forty days more in which to do so, invoking the analogy of criminal prodecure. The Managers replied that the Senate's own rules were controlling, not analogies from other areas of law; if Johnson would not enter a plea, the rules were clear that the trial should commence then and there as if he had pleaded not guilty. No elaborate formal reply was necessary anyway since, as Bingham said,

technical roles do in nowise control or limit or fetter the action of this body; and under the plea of “not guilty,” as provided in the rules, every conceivable defense that the party accused could make to the articles here preferred can be admitted. Why, then, this delay of forty days to draw up an answer of not guilty? [38]

Why indeed? But the Senate, touchy about insinuations that the President was being railroaded, allowed ten days to answer. On March 23 the defense filed an answer even more turgid than the articles, whereupon the trial should have begun. Yet Johnson's lawyers prevailed upon the Senate to grant another continuance until March 30. Raoul Berger complains that the defense received “extraordinarily short shrift,” but it got more time by far than the rules allowed it, and nothing in the answer, the course of the trial or the verdict suggests that Johnson got any less time than he needed in order to mount a successful defense.[39]

On the second day of the trial, Chase overturned the rules in another respect. Manager Butler was trying to elicit hearsay testimony as to the expressed intentions of General Lorenzo Thomas, Johnson's ad interim appointee as Secretary of War, in going to the War Deparrment on February 21 to challenge Stanton. The defense objected that the testimony was irrelevant. Chase stated: “The Chief Justice thinks the testimony is competent and it will be heard unless the Senate think otherwise.” When Senator Drake challenged his right to make such a preliminary ruling – a power which the Senate had earlier stripped him of, seemingly – Chase insisted “that in his judgment it is his duty to decide upon questions of evidence in the first instance, and that if any senator desires that the question shall then be submitted to the Senate it is his duty to submit it.” The Managers belatedly protested that Chase's arrogation of power detracted from the Senate's “sole power” to try impeachments: “Every judgment that must be made is a part of the trial, whether it be upon a preliminary question or a final question.' By chance Chase got more than he hoped for by the resolution of the question. A motion that the Senate retire for consultation (in effect. to debate unconstrained by Chase) eventuated in a 25-25 tie (Wade and three others not voting). Chase announced the result and said: 'The Chief Justice votes in the affirmative. The Senate will retire for conference.” He then left the room.[40] Emerging from conference, the Senate defeated actions by Drake and Sumner denying Chase's right to vote, and instead the rules were amended to legitimate Chase's claim to make preliminary rulings, except that any Senator's objection would put the matter before the Senate.[41] If less than a trial judge, Chase was at least more than a mere moderator.[42]

Central to the fairness of any trial is the court's reception or exclusion of evidence. In impeachment trials, exclusionary rulings will be somewhat less important than in a jury trial, since the Senators cannot be kept from hearing about proferred evidence and taking it into account as they, severally, see fit.[43] Johnson impeachment critics claim that prejudicial rulings stud the record, [44] but they have ignored the possibility that the rulings were correct, or at least within the range of reasonable differences under the law of evidence as it then stood. A look at a few of the more important evidentiary controversies suggest that. as in other matters, the Senate was more than fair to Johnson. Seeming injustices. e.g.. the admissions of hearsay declarations against an accused but not those in his favor, may be ingrained features of criminal evidence law, not the blatantly unequal treatment they might resemble to the lay observer.[45]

Most of the eleven articles involved Johnson's dismissal of Secretary of War Stanton and his attempted ad interim appointment of General Lorenzo Thomas to the post, allegedly in violation of the Tenure of Office Act. Johnson's defense was threefold: the Act was unconstitutional; if constitutional, it nonetheless did not cover Stanton; and if constitutional and applicable, “the President acted from laudable and honest motives, and is not, therefore, guilty of any crime or misdemeanor. ” [46] The latter defense of good faith had important evidentiary implications if accepted by the Senate. If the wrongful intent, with which Johnson was accused of having acted, had to be the intent to break a law Johnson knew to be valid, then the Senate should consider evidence that Johnson desired to precipitate a test case for the courts or that his Cabinet unanimously advised him that the Act was constitutional.[47] Not so, however, if the requisite intent, as for most criminal offenses, was merely to have voluntarily and consciously done the acts charged; or if ignorance of the law is, as usual, no defense; or if, as Thaddeus Stevens argued, the object of impeachment is simply to end a course of unconstitutional conduct by removing the perpetrator: “Mere mistake in intention, if so persevered in after proper warning as to bring mischief upon the community, is quite sufficient to warrant the removal of the officer from the place where he is working mischief by his continuance in power.” [48] As a matter of constitutional exegesis and common prudence, the Managers' theory is closer to the correct view, and it was evidently also the view of the Senate.[49] If so, just about every exclusion of proferred defense evidence is defensible.

But there were further infirmities in important parts of defense testimony. Defense attorney Stanbury sought to elicit from Thomas what Johnson had told him on February 21, 1868, immediately after Thomas had confronted Stanton at the War Department. Bingham objected that this was an attempt “to introduce in the defense of an accused criminal his own declaration made after the fact.” Noting that the acts charged (dismissal of Stanton and appointment of Thomas) were by then completed, Butler said that “Mr. Thomas cannot make evidence for himself by going and talking with the President, nor the President with Mr. Thomas.” The objection was valid. A party charged with crime can never put in evidence in his own behalf his declarations made after commission of a crime.[50] But the Senate, to which Chase submitted the point without a preliminary ruling, voted 42-10 to admit the hearsay. Thomas then quoted Johnson's response to the War Department incident: “Very well; we want it in the courts.” [51]

Next the defense questioned General Sherman about his talk with Johnson on January 14, prior to the final firing of Stanton. The defense argued that the Johnson hearsay was germane to intent, and Chase ruled it admissible. Because this declaration preceded the act charged, it was not subject to the previous objection – but there was still a crucial condition on letting such evidence in. Contemporaneous declarations of purpose, “made with no apparent motive for misstatement,” are admissible to prove the declarant's purpose. The defense agreed such statements are admissible “if they do not appear to have been manufactured.” Senators might readily conclude that Johnson was already creating evidence for use in the impending showdown over Stanton. Chase intervened to endorse the defense view, saying that “proof of a conversation shortly before a transaction is better evidence of the intent of an actor than proof of a conversation shortly after a transaction. The Secretary will call the roll.” By a 23-28 vote of which Chase complained bitterly in private, the evidence was excluded.[52]

But even this ruling, for which several arguable grounds of support appear, was effectively reversed. Later, by one of those one-vote margins made possible by Wade's self-restraint, Sherman was allowed to report what Johnson told him at later interviews (January 27 or 31) as to his purpose in offering Sherman the post of ad interim Secretary of War. Johnson said it was for the good of the country. When Sherman asked why the courts could not settle the conflict, Johnson said that was impossible, but “if we can bring the case to the courts it would not stand half an hour.” As Stanbury said, “that which was closed to us by the decision of the court on Saturday, is now opened by the question of the senator today.” [53] Yet the Johnson-Sherman talks, which came after the Senate had refused to assent to Stanton's removal on January 13, were well before the final firing on February 21 and rather remote in time to count as contemporaneous declarations of intent.

A subsidiary issue in the case was whether Johnson had contemplated the use of force to install Thomas. To prove otherwise, the defense sought to have Secretary of State Welles testify that on February 21 Johnson opined that Stanton would acquiesce peaceably in the Thomas appointment. Chase announced that he was “clearly of opinion that this is a part of the transaction, and that it is entirely proper to take this evidence into consideration as showing the intent of the President in his acts. The Secretary will call the roll.” By a 26-23 vote the evidence was admitted.[54] Again, an after-the-fact, self-serving hearsay declaration, which must have been made in anticipation of future controversy, was admitted to prove a kind of “intent” which was not really material anyway. The defense, often with the weight of the Chief Justice's authority behind it, overall benefitted greatly from the Senate's evidentiary rulings. And even when the Managers succeeded in excluding evidence of Johnson's innocent intent, the Senators heard what the evidence would have been even as the Managers made themselves look bad by trying to suppress evidence favorable to Johnson.[55]

The most important lapses from procedural propriety in the impeachment trial did not take place in court at all. They consisted of negotiations between Johnson's lawyer Evarts (who would surely be disbarred for it today) and susceptible conservative Republican Senators which eventuated in a virtual trade of not-guilty votes for political favors. Senator Grimes, with the knowledge of Senators Fessenden and Trumball, obtained assurances that acquittal would not be followed by presidential reprisals. The nomination of a conservative Republican general to succeed Stanton also pleased the Republican right Senator Ross – a recusant often held up as the hero who placed principle above politics in casting “the vote that saved Johnson” – let the President know that his prompt transmission of the new, reconstructed South Carolina and Arkansas constitutions would cause him and others to vote to acquit. Johnson complied the next day. Johnson also agreed to enforce the Reconstruction Acts.[56] It is curious that impeachment critics who point to the immense political pressure brought to bear on wavering Senators overlook that the President still wielded enough power and patronage to outbid the Radical Republicans for enough votes to win.

The evidence is overwhelming that while an impeachment trial is a judicial proceeding before the Senate sitting as a court, [57] it is not a criminal trial.[58] Procedurally this means that the technicalities of indictment and pleading which characterized criminal procedure had no place in the Johnson impeachment trial. Hamilton wrote that such a proceeding “can never be tied down to such strict rules, either in the delineation of the offense by the prosecutors of the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.” [59] All the early commentators, seconded by the best modern authorities, agreed that the Senate was not bound to the strict forms of common-law pleading and procedure, particularly with respect to the formulation of charges; the articles might be very general and the Senators were entitled to construe them broadly from considerations of policy.[60]

The defense, however, assailed obscurities and possible technical defects in the articles as if they appeared in an indictment. In the criminal law of the day, no conviction could stand unless the proof adduced at trial closely corroborated the allegations of the indictment, even if the proof showed other criminality on the defendant's part. Johnson's lawyers cited this principle in his behalf insisting, for instance, that since criminal intent was alleged in each article, conviction required proof of criminal intent.[61] Actually it is doubtful if this rule applied even if the trial had been criminal in character. Immaterial allegations in an indictment had long been allowed to be ignored as surplusage.[62] If most senators thought that criminal intent (at least as the defense understood it) was not necessary to sustain conviction, their disregard of allegations of criminal intent would not mean they were voting to convict Johnson of something different from what he was charged with. And yet the defense argument paid off. Five of the seven recusant Republicans filed opinions justifying acquittal in part because the proof only showed an attempt to remove Stanton (because he refused to go), not an effective removal as alleged! [63]

The fate of the eleventh article, “the gist and vital portion of this whole prosecution” as Stevens called it, illuminates the circumstances which led to Johnson's acquittal. The Radical Republicans added it because, as Stevens complained, the other articles were so narrowly and legalistically framed as to have no “real vigor in them.” [64] In extraordinarily convoluted language it alleged a conspiracy to frustrate enforcement of the Tenure of Office Act and certain Reconstruction legislation pursuant to Johnson's alleged assertion that the Congress was not a constitutional body. It was the most important article and the one most likely to be adopted because, in its obscure but unmistakable way, it was understood by all to state Johnson's real offense: his obstruction of Congressional Reconstruction. Instead of meeting the charge head-on, defense counsel tried to make light of it by professing an inability to make any sense out of it. Impeachment proponents were not fooled and induced the Senate to vote on the eleventh article first.[65]

Chase now made the last and possibly most important of his unauthorized encroachments upon the Senate's sole power to try impeachments. Speaking as if he were the trial judge charging the jury as to the applicable law, be prefaced the voting by his own narrow construction of the article. “The single substantive matter charged,” he said, “is the attempt to prevent execution of the tenure-of-office act [sic]; and the other facts are alleged either as introductory and exhibiting this general purpose, or as showing the means contrived in furtherance of the attempt.” By collapsing the eleventh article into a mere rehash of the others, Chase effectively eliminated the breadth which was intended to distinguish it from the other ten.[66] It is argued that Chase did not determine the verdict of the trial because formally the Senate had the right to overrule him.[67] As the disposition of the eleventh article shows, that is a naive view of the matter. By his comments, his control of the proceedings, the prestige of his office and his mastery of the fait accompli, Chase exerted a pervasive influence on the whole course of the proceedings, and his influence was usually exerted for Johnson's benefit.

A few years after the Johnson acquittal, the Supreme Court held that a criminal defendant is accorded due process of the law “if the trial is had according to the settled course of judicial proceedings,” consonant with “the law of the land.” [68] In that sense, it was the Managers rather than Johnson who were denied due process. The case is shot through with ironies inuring to the accused's benefit. Johnson portrayed his prosecutors as prejudiced and partisan while secretly taking full advantage of prejudices cutting his way and exploiting extrajudicial political clout. His lawyers insisted he be tried solely according to the literal terms of the impeaching articles – the rule of law required no less – and then belittled those “technical and formal crimes” as “of very paltry consideration.” After incurring attack for contending that the Senate was not a court, the Managers made more use than the defense of evidentiary technicalities inappropriate in an impeachment trial. Ostensibly upholding the Constitution and laws against partisan abuse, the defense – aided by the Chief Justice – repeatedly induced the Senate either to break its own rules or to rewrite them to suit Chase or Johnson. The trial included its share of errors and injustices, but they more often benefited the accused than the accusers. Unlike his prosecutors, Andrew Johnson got a fair trial.[69]

Notes

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