Introduction

The Constitution states that the president may be impeached and removed for “Treason, Bribery, and other high Crimes and Misdemeanors” (Article II, Section 4). Although most people today assume that “high Crimes and Misdemeanors” require that the president commit some indictable offense, the history of the phrase suggests a broader meaning. The Constitution invites debate about the scope of impeachment, and those subject to impeachment are most likely to insist on its narrowest application.

When Republicans passed the Tenure of Office Act (Johnson State of the Union: 1867) they had already failed to impeach Johnson. The House Judiciary Committee had supported impeaching Johnson for undermining congressional prerogatives, arguing that it was not necessary to prove that the president had committed a specific crime. This effort failed to muster a majority in the House, and so Republicans passed the Tenure of Office Act to force Johnson to break a specific law. When Johnson removed Secretary of War Edwin M. Stanton, Republicans were able to secure a majority in the House to vote to impeach Johnson. Of the eleven articles of impeachment, nine have to do with the Tenure of Office Act and the removal of Stanton. The Tenth and Eleventh articles argue that Johnson violated more fundamental constitutional norms having to do with the presidency and separation of powers.

In the end, Republicans failed to secure the two-thirds majority in the Senate required to remove Johnson from office. There was some question about whether the law applied to current department heads. Johnson’s lead attorney, William M. Evarts (1818-1901), argued in the trial that even if Johnson did violate the law, his motive was to create a legal controversy to be settled by the Supreme Court. Several senators may have been persuaded that the question regarding Stanton needed to be resolved by the federal judiciary.


Source: Supplement to the Congressional Globe Containing the Proceedings of the Senate Sitting for the Trial of Andrew Johnson, President of the United States. 40th Congress, Second Session. (Washington, D.C.: F & J Rives & George A Bailey, 1868), 3–5.


Articles established by the House of Representatives of the Unites States, in the name of themselves and all the people of the United States, against Andrew Johnson, President of the United States, in maintenance and support of their impeachment against him for high crimes and misdemeanors.

ARTICLE I

That said Andrew Johnson, President of the Unites States, on the 21st day of February, in the year of our Lord 1868, at Washington, in the District of Columbia, unmindful of the high duties of his office, of his oath of office, and of the requirement of the Constitution that he should take care that the laws be faithfully executed, did unlawfully and in violation of the Constitution and laws of the United States issue an order in writing for the removal of Edwin M. Stanton from the office of Secretary for the Department of War, said Edwin M. Stanton having been theretofore only appointed and commissioned, by and with the advice and consent of the Senate of the United States, as such Secretary, and said Andrew Johnson, President of the United States, on the 12th day of August, in the year of our Lord 1867, and during the recess of said Senate, having suspended by his order Edwin M. Stanton from said office, and within twenty days after the first day of the next meeting of said Senate, that is to say, on the 12th day of December, in the year last aforesaid, having reported to said Senate such suspension, with the evidence and reasons for his action in the case and the name of the person designated to perform the duties of such office temporarily until the next meeting of the Senate, and said Senate there afterward, on the 13th day of January, in the year of our Lord 1868, having duly considered the evidence and reasons reported by said Andrew Johnson for said suspension, and having refused to concur in said suspension, whereby and by force of the provisions of an act entitled “An act regulating the tenure of certain civil offices” passed March 2, 1867, said Edwin M. Stanton did forthwith resume the functions of his office, whereof the said Andrew Johnson had then and there due notice, and said Edwin M. Stanton, by reason of the premises, on said 21st day of February, being lawfully entitled to hold said office of Secretary for the Department of War, which said order for the removal of said Edwin M. Stanton is in substance as follows, that is to say:

EXECUTIVE MANSION

WASHINGTON D.C., February 21st, 1868.

SIR: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication.

You will transfer to Brevet Major General Lorenzo Thomas,[1] Adjutant General of the Army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in your custody and charge.

Respectfully yours, ANDREW JOHNSON.

Hon. EDWIN M. STANTON, Washington D.C.

Which order was unlawfully issued with intent then and there to violate the act entitled “An act regulating the tenure of certain civil offices,” passed March 2nd, 1867; and, with the further intent contrary to the provisions of said act, in violation thereof, and contrary to the provisions of the Constitution of the United States, and without the advice and consent of the Senate of the United States, the said Senate then and there being in session, to remove said Edwin M. Stanton from the office of Secretary for the Department of War, the said Edwin M. Stanton being then and there Secretary of War, and being then and there in the due and lawful execution and discharge of the duties of said office, whereby said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in office.

. . .

ARTICLE X.

That said Andrew Johnson. President of the United States, unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States, designing and intending to set aside the rightful authority and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and legislative power thereof, (which all officers of the Government ought inviolably to preserve and maintain,) and to excite the odium and resentment of all the good people of the United States against Congress and the laws by it duly and constitutionally enacted: and in pursuance of said design and intent, openly and publicly, and before divers assemblages of the citizens of the United States convened in divers parts thereof to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the 18th day of August, in the year of our Lord 1866, and on divers other days and times, as well before as afterward, make and deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress amid the cries, jeers, and laughter of the multitudes then assembled and within hearing, which are set forth in the several specifications hereinafter written, in substance and effect, that is to say:

Specification First. In this, that at Washington, in the District of Columbia, in the Executive Mansion, to a committee of citizens who called upon the President of the United States, speaking of and concerning the Congress of the United States, said Andrew Johnson, President of the United States, heretofore, to wit, on the 18th day of August, in the year of our Lord 1866, did, in a loud voice, declare in substance and effect, among other things, that is to say:

“So far as the executive department of the Government is concerned, the effort has been made to restore the Union, to heal the breach, to pour oil into the wounds which were consequent upon the struggle, and (to speak in common phrase) to prepare as the learned and wise physician would, a plaster healing in character and coextensive with the wound. We thought, and we think, that we had partially succeeded; but as the work progresses, as reconstruction seemed to be taking place, and the country was becoming reunited, we found a disturbing and marring element opposing us. In alluding to that element, I shall go no further than your convention and the distinguished gentleman who has delivered to me the report of its proceedings. I shall make no reference to it that I do not believe the time and the occasion justify.

“We have witnessed in one department of the Government every endeavor to prevent the restoration of peace, harmony, and Union. We have seen hanging upon the verge of the government, as it were, a body called, or which assumes to be, the Congress of the Unites States, while in fact it is a Congress of only a part of the States. We have seen this Congress pretend to be for the Union, when its every step and act tended to perpetuate disunion and make a disruption of the States inevitable.”

“We have seen Congress gradually encroach step by step upon constitutional rights, and violate, day after day and month after month, fundamental principles of the gGovernment. We have seen a Congress that seemed to forget that there was a limit to the sphere and scope of legislation. We have seen a Congress in a minority assume to exercise power which, allowed to be consummated, would result in despotism or monarchy itself.”

Specification Second. In this, that at Cleveland, in the State of Ohio, heretofore, to wit, on the 3rd day of September, in the year of our Lord 1850, before a public assemblage of citizens and others, said Andrew Johnson, President of the United States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say:

“I will tell you what I did do. I called upon your Congress that is trying to break up the Government.”

[Here, the text of the Articles of Impeachment indicates omitting a portion of the quoted speech.] 

 “In conclusion, besides that, Congress had taken much pains to poison their constituents against him. But what had Congress done? Have they done anything to restore the union of these States? No; on the contrary, they had done everything to prevent it; and because he stood now where he did when the rebellion commenced he had been denounced as a traitor. Who had run greater risks or made greater sacrifices than himself? But Congress, factions and domineering, had undertaken to poison the minds of the American people.”

Specification Third. In this, that at St. Louis, in the State of Missouri, heretofore, to wit, on the 8th day of September, in the year of our Lord 1866, before a public assemblage of citizens and others, said Andrew Johnson, President of the United States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say:

“Go on. Perhaps if you had a word or two on the subject of New Orleans you might understand more about it than you do. And if you will go back – if you will go back and ascertain the cause of the riot at New Orleans, perhaps you will not be so prompt in calling out ‘New Orleans.’ If you will take up the riot at New Orleans and trace it back to its source or its immediate cause, you will find out who was responsible for the blood that was shed there. If you will take up the riot at New Orleans and trace it back to the Radical Congress you will find that the riot at New Orleans was substantially planned. If you will take up the proceedings in their caucuses you will understand that they there knew that a convention was to be called which was extinct by its power having expired; that it was said that the intention was that a new government was to be organized, and on the organization of that government the intention was to enfranchise one portion of the population, called the colored population, who had just been emancipated, and at the same time disfranchise white men. When you design to talk about New Orleans you ought to understand what you are talking about. When you read the speeches that were made, and take up the facts on the Friday and Saturday before that convention sat, you will there find that speeches were incendiary in their character, exciting that portion of the population, the black population, to arm themselves and prepare for the shedding of blood. You will also find that the convention did assemble in violation of law, and the intention of that convention was to supersede the reorganized authorities in the State government of Louisiana, which had been recognized by the Government of the United States; and every man engaged in that rebellion in that convention, with the intention of superseding and upturning the civil government which had been recognized by the Government of the United States, I say that he was a traitor to the Constitution of the United States and you find that another rebellion was commenced having its origin in the Radical Congress. [Here, the text of the Articles of Impeachment indicates omitting a portion of the quoted speech.]

“So much for the New Orleans riot. And there was the cause and the origin of the blood that was shed; and every drop of blood that was shed is upon their skirts, and they are responsible for it. I could test this thing a little closer but will not do it here tonight. But when you talk about the causes and consequences that resulted from proceedings of that kind, perhaps, as I have been introduced here, and you have provoked questions of this kind, though it does not provoke me, I will tell you a few wholesome things that have been done by this Radical Congress in connection with New Orleans and the extension of the elective franchise.

“I know that I have been traduced and abused. I know it has come in advance of me here, as elsewhere, that I have attempted to exercise an arbitrary power in resisting laws that were intended to be forced upon the Government; that I had exercised that power; that I had abandoned the party that elected me, and that I was a traitor, because I exercised the veto power in attempting and did arrest for a time a bill that was called a ‘Freedman’s Bureau’ bill: yes, that I was a traitor. And I have been traduced. I have been slandered, I have been maligned, I have been called Judas Iscariot, and all that. Now, my countrymen here tonight, it is very easy to indulge in epithets; it is easy to call a man a Judas and cry out traitor; but when he is called upon to give arguments and facts he is very often found wanting. Judas Iscariot – Judas. There was a Judas and he was one of the twelve apostles. Oh yes, the twelve apostles had a Christ. The twelve apostles had a Christ, and he never could have had a Judas unless he had twelve apostles. If I have played the Judas, who has been my Christ that I have played the Judas with? Was it Thad. Stevens?[2] Was it Wendell Phillips?[3] Was it Charles Sumner?[4] These are the men that stop and compare themselves with the Savior: and everybody that differs with them in opinion, and to try and stay and arrest the diabolical and nefarious policy, is to be denounced as a Judas.” [Here again, the text of the Articles of Impeachment indicates omitting a portion of the quoted speech.]

“Well, let me say to you, if you will stand by me in this action: if you will stand by me in trying to give the people a fair chance, soldiers and citizens, to participate in these offices, God being willing, I will kick them out. I will kick them out just as fast as I can.

“Let me say to you, in concluding, that what I have said I intended to say. I was not provoked into this, and I care not for their menaces, the taunts, and the jeers. I care not for threats. I do not intend to be bullied by my enemies nor overawed by my friends. But, God willing, with your help I will veto their measures whenever any of them come to me.”

Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of, a high misdemeanor in office.

ARTICLE XI

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, and in disregard of the Constitution and laws of the United States, did heretofore, to wit: on the 18th day of August, 1866, at the city of Washington, in the District of Columbia, by public speech, declare and affirm in substance that the Thirty-Ninth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same: but, on the contrary, was a Congress of only part of the States, thereby denying and intending to deny that the legislation of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit to approve the same, and also thereby denying and intending to deny the power of the said Thirty-Ninth Congress to propose amendments to the Constitution of the United States; and, in pursuance of said declaration, the said Andrew Johnson, President of the United States, afterward, to wit: on the 21st day of February, 1868, at the city of Washington, in the District of Columbia, did unlawfully  and in disregard of the requirements of the Constitution, that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled “An act regulating the tenure of certain civil offices,” passed March 2, 1867, by unlawfully devising and contriving, and attempting to devise and contrive, means by which he should prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in suspension therefore made by said Andrew Johnson of said Edwin M. Stanton from said office of Secretary for the Department of War, and also by further unlawfully devising and contriving, and attempting to devise and contrive, means then and there to prevent the execution of an act entitled “An act making appropriations for the support of the Army for the fiscal year ending June 30, 1868 and for other purposes,” approved March 2, 1867, and also to prevent the execution of an act entitled “An act to provide for the more efficient government of the rebel States,” passed March 2, 1867: whereby the said president Andrew Johnson, President of the United States, did then, to wit: on the 21st day of February, 1865, at the city of Washington, commit and was guilty of a high misdemeanor in office.

And the House of Representatives, by protestation, saving to themselves the liberty of exhibiting at any time hereafter any further articles or other accusation or impeachment against the said Andrew Johnson, President of the United States, and also of replying to his answers which he shall make unto the articles herein preferred against him, and of offering proof to the same and every part thereof, and to all and every other article, accusation, or impeachment which shall be exhibited by them, as the case shall require, do demand that the said Andrew Johnson may be put to answer the high crimes and misdemeanors in office herein charged against him, and that such proceedings, examinations, trials, and judgements may be thereupon had and given as may be agreeable to law and justice.

Study Questions

A. In addition to violating the Tenure of Office Act, what were the charges against Johnson? Could those charges be made in the twentieth century, or do they suggest the expectations for presidents in the nineteenth century were different? What is the issue lurking underneath the stated charges?

B. Does Alexander Hamilton’s discussion of impeachment in Federalist No. 65 anticipate the nature of the charges against Johnson? Does it matter that Johnson believed the Tenure of Office Act was unconstitutional?

Footnotes

  1. Lorenzo Thomas (1804-1975) was Adjutant General in the U.S. Army from 1861-1869.
  2. Thaddeus Stevens (1792-1868) was a Radical Republican and Representative from Pennsylvania. from 1849-1868.
  3. Wendell Phillips (1811-1884) was a prominent abolitionist from Boston.
  4. Charles Sumner (1811-1874) was a Radical Republican and Senator from Massachusetts from 1851 to 1874.