Johnson's Vetoes, the Overrides and the Impeachment That Fell One Vote Short

Thirty-six. That was the number. In the spring of 1868, the United States Senate sat as a court of impeachment with fifty-four members, and to remove the President from office, two-thirds of them had to vote guilty. Two-thirds of fifty-four is thirty-six. When the roll was called, thirty-five senators voted to convict. One vote. The President of the United States kept his job by a margin you could fit in a single chair.

And here is the twist that makes this story more than a trivia answer. The men who put him on trial were Republicans. So were seven of the senators who refused to convict him. The first impeachment of a President in American history was not Republicans versus Democrats on the Senate floor. It was a family fight, and the family has been arguing about who was right for a hundred and fifty years. I think it is the best case study we have for a question every voter should be able to answer: what is impeachment for?

The man and the ticket

Start with who Andrew Johnson was. He was a Democrat from Tennessee, a self-taught tailor who rose through politics on the strength of his fight for the common man against the planter class. When the Southern states seceded, Johnson was the one Southern senator who refused to leave Washington. That loyalty made him a hero in the North.

In 1864, Republicans were running for re-election under the banner of the National Union Party, a label designed to attract War Democrats, and they needed a running mate who could show the party was bigger than itself. They picked Johnson. Abraham Lincoln and Andrew Johnson won in November. And on April 15, 1865, after Lincoln was assassinated, a Democrat from Tennessee became President, with a Republican Congress and a Republican cabinet inherited from the man who had died.

Every part of what followed grew out of that fact. Johnson had been elected on a Union ticket. He had never been a Republican. And he had very firm ideas about how fast the Southern states should return to full standing in the Union.

The fight over Reconstruction: vetoes and overrides

In the summer of 1865, with Congress out of session, Johnson set the terms of Southern restoration himself. He appointed provisional governors, issued pardons to many former Confederates, and let the Southern states hold conventions on terms that required very little of them. The new Southern governments passed the Black Codes, laws that restricted the freedom of freed people, and elected many former Confederate leaders to Congress.

When Congress met in December 1865, Republicans refused to seat the Southern members, and they began to write their own terms. What followed was a series of fights over bills and vetoes, and the sequence is worth knowing:

1. February 1866: Johnson vetoed a bill extending the Freedmen's Bureau, the agency that helped freed people with food, schools and legal disputes. Congress could not muster the votes to override.
2. March 27, 1866: Johnson vetoed the Civil Rights Act of 1866. Congress overrode the veto on April 9, 1866, the first time a major law became law over a presidential veto. The story of what that act and the amendments that followed did is told in Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments.
3. July 1866: A second Freedmen's Bureau bill was vetoed and this time overridden.
4. Fall 1866: Johnson went on a speaking tour of the country in the weeks before the midterm elections, and the speeches did him little good. The voters returned a Republican Congress with a margin large enough to override vetoes at will.
5. March 2, 1867: Congress passed the Reconstruction Acts, dividing the former Confederate states, other than Tennessee, into military districts. Johnson vetoed them. Congress overrode him the same day.

By early 1867, the shape of the struggle was plain. The President did not control the Congress, and Congress had learned it could pass laws over his objection. The question then became how far it would go.

The Tenure of Office Act and Edwin Stanton

On the same day it passed the Reconstruction Acts, Congress passed the Tenure of Office Act, over another veto. The law said the President could not remove an official whose appointment required the Senate's consent without the Senate's approval. Cabinet officers were covered, with a clause saying they would hold their posts for the term of the President who appointed them and one month afterward.

The target was Edwin Stanton, the Secretary of War. Stanton had served under Lincoln, he supported the Republican approach to Reconstruction, and he was the Republicans' man at the head of the army department that was running the military districts. Johnson wanted him gone.

In August 1867, Johnson suspended Stanton and named General Ulysses Grant as acting Secretary. In January 1868 the Senate refused to concur in the suspension, Stanton returned to the War Department, and Grant stepped aside. Johnson was furious. On February 21, 1868, he ordered Stanton removed and named Lorenzo Thomas, the Adjutant General of the Army, in his place. Stanton refused to leave, and he stayed in his office.

Johnson's defenders made a point worth noting. The Tenure of Office Act protected cabinet members for the term of the President who appointed them. Stanton had been appointed by Lincoln, not by Johnson. On that reading, the act did not even cover him. Congress disagreed.

The House impeaches

Three days later, on February 24, 1868, the House voted to impeach the President. The vote was along party lines. The Constitution gives the House the sole power of impeachment, in Article I, Section 2. The Senate has the sole power to try, in Article I, Section 3, with the Chief Justice presiding when the President is the one on trial, and a two-thirds vote is needed to convict.

The House adopted eleven articles of impeachment. The first several concerned the removal of Stanton and the appointment of Thomas, and they charged violation of the Tenure of Office Act. A later article charged that Johnson had conspired with Thomas to take the War Department by force. The last, Article XI, was a catch-all drafted by Representative Thaddeus Stevens. It charged that Johnson had denied the legitimacy of the Congress, had made speeches meant to bring it into disgrace, and had tried to stop the Reconstruction laws from being carried out.

The House managers who prosecuted the case included Stevens, who was in poor health, John Bingham, who had helped write the 14th Amendment, and Benjamin Butler. Johnson's lawyers included Henry Stanbery, who resigned as Attorney General to take the case, Benjamin Curtis, a former Supreme Court justice who had dissented in Dred Scott, and William Evarts. Johnson did not appear in person.

The trial and the vote

The Senate, with Chief Justice Salmon Chase presiding, organized itself as a court in early March, and the trial opened in earnest on March 30, 1868. It lasted weeks. The prosecution argued that Johnson had violated a valid law and had defied Congress's authority over Reconstruction. The defense argued that the Tenure of Office Act was unconstitutional, that it did not cover Stanton anyway, and that a President who tests a law in good faith in order to get a court ruling has not committed a high crime.

On May 16, 1868, the Senate voted first on Article XI, the catch-all. The result was thirty-five votes to convict and nineteen to acquit, one vote short of the thirty-six needed. The Senate then adjourned for ten days. On May 26, it voted on two more articles and the result was identical, thirty-five to nineteen. The trial was over. Stanton gave up his office.

So who were the seven? Seven Republicans joined twelve Democrats to vote not guilty: William Pitt Fessenden of Maine, Joseph Fowler of Tennessee, James Grimes of Iowa, John Henderson of Missouri, Edmund Ross of Kansas, Lyman Trumbull of Illinois and Peter Van Winkle of West Virginia. Ross, a first-term senator from Kansas, had been regarded as uncertain until the roll was called, and his vote is the one history remembers.

Why seven Republicans said no

They did not all think alike, and it would be a mistake to treat them as a bloc. But their reasons, as best the record shows, fall into three groups.

1. They thought the case was weak. Trumbull, a lawyer and a principal author of the Civil Rights Act, concluded that the Tenure of Office Act did not clearly apply to Stanton, and that even if it did, the charge was not the kind of offense impeachment was meant for. Fessenden, a respected senior Republican, wrote that a Senate trying a President had to decide on the evidence like a court, not on party loyalty.
2. They worried about precedent. Trumbull and others feared that removing a President over a policy quarrel would make every future President a hostage to Congress. They saw impeachment as a tool for real misconduct, not for disagreement.
3. Some feared the replacement. With no Vice President, the next in line was the President pro tempore of the Senate, Benjamin Wade of Ohio, a hard-edged radical. Some Republicans did not want Wade in the White House, and some historians think that weighed on them. Others deny it.

Whatever their reasons, these seven senators did something unusual: they voted against the wishes of their party at real cost to themselves. Ross in particular faced fierce criticism at home and did not win another term. That same kind of independence is what the story of Margaret Chase Smith took on Joe McCarthy from inside her own party in 1950 and McCarthy, the 1954 Censure and the Republicans Who Said Enough would show again in the following century.

What impeachment is for

Now to the question I put at the start. The Constitution says, in Article II, Section 4, that the President, Vice President and civil officers "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." That phrase, "high crimes and misdemeanors," has been argued over ever since. Let me give you the two best positions and then my own.

The broad view. Impeachment is a political process, not a criminal trial. It exists so that Congress can remove an executive who abuses power, whether or not the abuse is a statutory crime. Under this view, a President who defies the laws Congress has passed, and who obstructs the faithful execution of those laws, has committed a high crime against the Constitution's order.

The narrow view. The words "high crimes and misdemeanors" require misconduct that is serious, legal and clear. A President who disagrees with Congress about policy, even stubbornly and offensively, has not committed an impeachable offense. Otherwise the Constitution's separation of powers would collapse into a parliamentary system in which Congress could dismiss the executive whenever a majority was displeased.

The framers rejected the parliamentary model. They knew it, they debated it, and they chose a system in which the executive has a fixed term and a removal for cause only. I come down closer to the narrow view, for a reason that is at the heart of conservative thinking about government: the line between a President you disagree with and a President you must remove is the line that keeps the republic stable.

And here is an irony worth savoring. The law that Johnson was charged with breaking, the Tenure of Office Act, was later regarded by the Supreme Court as invalid. In Myers v. United States in 1926, in an opinion written by Chief Justice William Howard Taft, the Court held that Congress could not require Senate approval for the removal of a postmaster, and indicated that the 1867 act had been invalid too. Congress itself repealed the Tenure of Office Act in 1887. If you want the long arc of that fight over who may fire executive officers, Who Can Fire the Regulators? A Timeline From Myers to Seila Law picks up the story, and William Howard Taft lost the White House and then got the job he wanted tells about the man who wrote Myers.

The strongest case for the other side

I'll close the argument by stating the case for conviction as strongly as it can be put, because it is not a weak one. Johnson was an obstinate man who defied a Congress that had just been elected by a landslide. He used his pardon power freely, and he removed army commanders, such as General Philip Sheridan, who were enforcing the Reconstruction Acts. He deliberately defied the Tenure of Office Act, and he did it in order to remove the one cabinet officer committed to carrying out the law. That is a President who refused to take care that the laws be faithfully executed, and the people had just told him, in the 1866 elections, what they thought of it.

My answer has three parts.

1. The remedy for a bad policy is the ballot and the override. Congress had already shown it could pass its laws over Johnson's vetoes. It did not need to remove him in order to govern.
2. A test of a law is not a high crime. Johnson's lawyers argued that he was entitled to take the question to the courts. The Court's later holding in Myers suggests his constitutional view had real merit.
3. The cost of lowering the bar is paid by every future President. If a President can be removed for a disagreement that a Congress finds intolerable, then the executive branch serves at the pleasure of whichever party controls the Capitol. The Constitution was written to prevent that.

This is a value judgment, and I'll own it. Many honest historians disagree. But if you want to understand how the rules work in practice, How Impeachment Works, Step by Step, From the House Floor to the Senate Trial walks through every step.

The bottom line

• Andrew Johnson, a Democrat elected Vice President on the 1864 Union ticket, clashed with the Republican Congress over Reconstruction, and Congress overrode his vetoes on the Civil Rights Act, the Freedmen's Bureau and the Reconstruction Acts.
• The House impeached him on February 24, 1868, after he tried to remove Secretary of War Edwin Stanton under the Tenure of Office Act. The Senate voted 35 to 19 to convict on May 16 and again on May 26, one vote short of the 36 needed.
• Seven Republicans voted to acquit: Fessenden, Fowler, Grimes, Henderson, Ross, Trumbull and Van Winkle. Their reasons ranged from doubts about the law to fears about precedent.
• Impeachment is the constitutional remedy for serious misconduct, not a substitute for winning elections or overriding vetoes. Keep that standard in your own head, and apply it to every President of both parties.
• Next time someone says a party vote on impeachment is the same as the verdict of history, remind them that in 1868 a Republican Senate came one vote from removing a President, and seven Republicans decided the law and the evidence mattered more than the party line.