Friday, January 24, 2020

Impeachment and the Civil War

Greg Jarrett has a piece titled Under Dems’ Trump impeachment justification, Lincoln would’ve been impeached which includes a reference to Doris Kearns-Goodwin's book "A Team of Rivals":

I recently read historian Doris Kearns Goodwin’s brilliant book “Team of Rivals.” In Chapter 24, she recounts how Republican President Lincoln utilized the powers of his office to ensure that Union soldiers in the field, who vigorously supported Lincoln’s reelection in 1864, were given the chance to cast their ballots for him. Most states permitted absentee ballots for troops. But the crucial state of Indiana did not.

So Lincoln wrote General William T. Sherman encouraging him to grant his men leave to return briefly to the northern state of Indiana. “Any thing you can safely do to let … soldiers, or any part of them, go home and vote at the State election, will be greatly in point,” wrote the president. Despite the risk that this might compromise his troop strength, Sherman consented.

That issue goes to obtaining political benefit from an action.

However, the more interesting Civil War era impeachment issue was the impeachment in February 1868 of Andrew Johnson, a Democrat, for, among other things, violating the Tenure in Office Act, which prohibited the President from removing from office, without the concurrence of the Senate, those officials whose appointment required Senate approval.

See also

the post by JONATHAN TURLEY at

The Tenure in Office Act was repealed about twenty years later, and effectively declared unconstitutional in the Myers case.

As to allowing soldiers to vote, one might want to know "why" active soldiers would vote Union/Republican. The Union/Republican platform included a plank for soldier benefits, which was later somewhat adopted by the Democrats, almost as an afterthought. In the pre-August 1864 time period, Lincoln thought he was going to lose, because of the apparent candidacy of Fremont and the horrific Union casualties. Lincoln removed Blair from the cabinet, facilitating the withdrawal of Fremont. And Sherman took Atlanta. Curiously, Lincoln did not carry his birth state of Kentucky in either 1860 or 1864 (and Kentucky soldiers (unlike those of other states) voted Democrat. The governor of Kentucky backed McClellan in 1864.

See also the article by L. Ebert, Benjamin Curtis, Equivalents, And Impeachment, Intellectual Property Today, page 33 (March 1999) [available LEXIS], which includes the text:

Andrew Johnson, a Democrat and former Senator and war-time governor from Tennessee, was elected Vice-President to Abraham Lincoln on the Union ticket in 1864. Assuming the presidency only six weeks after inauguration, Johnson ultimately clashed in policy with Radical Republicans in Congress. In 1867, Congress passed the Tenure in Office Act, which although intended primarily to protect lower level patronage functionaries, barred the removal, without Senate approval, of Cabinet members during the term of the President who had appointed them.
Secretary of War Stanton, formerly a successful lawyer in Washington, D.C. n3, was serving as a conduit of infor-mation to the Radical Republicans, and Johnson wanted to remove him. Taking advantage of a provision in the Ten-ure in Office Act that allowed suspension of Stanton while Congress was not in session, Johnson replaced Stanton with Grant. However, on reconvening, the Senate refused to concur in Stanton's removal, and Johnson, on February 21, 1868, removed Stanton n4, at least on paper. Congress was quick to act.

n3 Stanton was a lead defense attorney in the trial of Congressman Daniel Sickles, accused of murdering his wife's lover. Stanton successfully utilized a defense of temporary insanity. Sickles was later a corps commander at Gettysburg (making an un-fortunate decision to advance downhill toward the Peach Orchard), and later would be involved in Reconstruction as a district military commander.
n4 Ironically, Johnson was encouraged to do this by the FAILURE of a vote on impeachment introduced by Ohio Congressman James M. Ashley. The next vote on impeachment would succeed. Separately, Grant returned the keys to the office to Stanton, and Stanton, to ensure his permanence in office, barricaded himself in the war department office. In literally living at his work-place, Stanton became the prototype for New York associates. See also, "New Lures for Burned-Out Lawyers," Wall St. Jour. (Feb. 2, 1999), B1).

In response to Andrew Johnson's impeachment on February 22, 1868 n5, a team of defense attorneys including Ben-jamin Curtis, Attorney General Stanbery, Jeremiah Black, William Evarts, and T. A. R. Nelson was formed.

n5 Congress stopped the clock to ensure the impeachment would be on Washington's birthday.

The actual trial began on March 30, 1868, with Ben Butler announcing that impeachment was a political, not a legal, proceeding. Curtis opened the case for the defense on April 9, and narrowed the eleven charges down to two: John-son's removal of Stanton and an omnibus grouping of other charges. Curtis argued that Stanton was not covered by the Tenure of Office Act, because he was appointed by Lincoln before the act was passed. If the law did apply to Stanton, then Johnson had tried and failed. In any event Johnson was within his rights because the act was certainly unconstitutional (as the Supreme Court did later find n6 ). If the act were constitutional, the House would still have to present proof that Johnson willfully intended to misconstrue and violate the act.

n6 This sub-plot is in itself interesting. The Tenure in Office Act was repealed, at the request of President Cleveland, on March 3, 1887. During the lifetime of the Tenure in Office Act, a law was passed in 1876 which covered postmasters. This law was at issue in Myers v. United States, 272 U.S. 52 (1926). The majority opinion of Chief Justice Taft discussed the Tenure in Office Act (272 US at 166-177) and found that the Tenure in Office Act of 1867 was invalid (272 US at 176). Both Justices Holmes and Brandeis dissented in Myers. An issue at stake in Myers was the general acquiescence by the Executive in the power of Congress to forbid the president alone to remove executive officers. The pending Zurko case has an issue of acquiescence by the PTO in the "clearly erroneous" standard of review.
A historian, reviewing the legal arguments, seemed uncomfortable with the concept of "argument in the alternative:"
The defense case, however, had its own weaknesses, notably that its arguments seemed patently contradictory. On the one hand, Johnson's attorneys argued that since the Tenure of Office Act did not apply to Stanton, his removal was perfectly legal, although in that case it was hard to explain why in 1867 the President had followed the letter of the law by suspending the Secretary and informing the Senate of his reasons. On the other hand, they contended that Johnson had violated the statute in order to allow the Supreme Court to rule on its constitutionality, an argument that would have allowed the President to determine which laws he was required to obey. n7

n7 Eric Foner, Reconstruction: America's Unfinished Revolution, Harper & Row, 1988, pp. 335-336.
The final vote came in mid-May, with only 35 senators voting for conviction, one short of the required two-thirds ma-jority. Seven Republicans voted for Johnson, although it was understood that a number of others would have voted for Johnson if necessary to secure acquittal. A number of these senators, as well as certain northern financial interests, were distrustful of Johnson's would-be successor, Senator Ben Wade, Senate President protem. n8 Much has been said of the vote of Kansas Republican Edmund G. Ross. However, it should be noted that there seem to be varying opin-ions on this matter, n9 with the possibility raised that Ross secured patronage posts for his friends. n10

n8 In spite of the conflict of interest, Wade voted on Johnson's impeachment.
n9 Note that there are a number of articles, of varying positions, on the Johnson impeachment, available through the internet. This observation underscores the reality that the internet features diversity as distinct from the uniformity of television. Trade-mark practitioners seeking to attract Generation Y should note this well.
n10 Mark A. Plummer, "Profile in Courage? Edmund G. Ross and the Impeachment Trial," Midwest Quarterly, (Autumn 1985), 27, 39-46; Ralph J. Roske, "The Seven Martyrs?" AHR, (January 1959), 66, 323-329.

What happened next? Johnson got the second highest number of votes in the first two rounds of the Democratic convention. Seymour was nominated by the Democrats, but lost to Grant. Johnson was later elected to the U.S. Senate from Tennessee. Stanton resigned as Secretary of War in 1868 and returned to private practice; he got the U.S. Supreme Court position he coveted, but died before serving.


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