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The Constitutional Propriety of Impeaching the President

Imagine America had as its president a man manifestly unfit by character and temperament to hold such an important public trust and exercise the important constitutional powers of the office. The president’s conduct in office had demonstrated him to be racist, mercurial, intransigent, personally crude, obsessed with his own public image and perceptions of his authority and success, and prone to intemperate public tirades, heaping abuse upon political enemies, the press, and all who opposed him.

As president, he expressed sympathy for – at times even seemed to side with – the nation’s avowed enemies: persons and forces that until very recently had been the nation’s overt military adversaries and who still sought to undermine America’s political system. He collaborated openly with such persons. He offered excuses for vicious racists – and uttered some distressingly racist remarks himself – as he failed to protect a large swath of the American population from racial violence, intimidation and oppression at the hands of private parties. He blamed the victims, as much as the perpetrators – for supposedly having pressed too far and thereby provoked the retaliation that fell on their heads.

He was heedless of laws and dismissive of Congress. He abused the pardon power, using it less as an instrument of mercy, forgiveness, restoration, and healing than as a tool for empowering and rewarding defiance of national law by state officials. He arguably abused the power to fire subordinates, removing or seeking to remove from office those who would not pliantly carry out his wishes to defy or disregard the law. He valued personal loyalty to him above all else and seemed indifferent to competent service to the nation. As shocking as it might sound, many judged the president unfit to issue direct commands to the military – impulsive, capricious, erratic and thus potentially dangerous.

He was an intemperate bully. He was politically artless and witless. But he was a snazzy dresser, or so he fashioned himself.

The Impeachment and Trial of Andrew Johnson

Imagine such a president! To be sure, such a situation is practically unthinkable and presumably intolerable. But is the president constitutionally impeachable for such conduct? Is it constitutionally proper to impeach and remove a president claiming his overall misconduct – or the cumulative weight of certain of the acts specified – constitutes the commission of “high Crimes and Misdemeanors” for which the Constitution says a president may be removed from office?

Of course, the imagined scenario is not merely hypothetical. Tomorrow marks the 150th anniversary of the first impeachment of a president in our nation’s history: On February 24, 1868, the House of Representatives voted to impeach one of the worst presidents in American history, Andrew Johnson. The vote in the House to impeach Johnson was overwhelming. In the Senate, Johnson came within one vote of the two-thirds majority constitutionally needed to be removed from office by the Senate.

Was Johnson guilty of “high Crimes and Misdemeanors” within the constitutional meaning of the term? First a little background: Johnson became president upon the assassination of Abraham Lincoln, Johnson having been selected – improvidently – as the “National Union” party’s nominee for vice president, to balance the 1864 ticket of Lincoln, the northern Republican incumbent, with a pro-union “war Democrat” from a Southern state (Tennessee). At first, the nation was strongly supportive of Johnson, given the extraordinary circumstances. But his woeful mismanagement of post-war Reconstruction in the wake of the Civil War, blanket pardons of former rebels, repeated vetoes, political intransigence, and refusals to faithfully execute laws with which he disagreed rapidly led to the complete breakdown of any working relationship with Congress.

Congress at the time was dominated by “radical” Republicans intent on protecting black civil rights, extending to former slaves the right to vote (and denying the vote to Southern whites who had actively supported the rebellion), and resisting the effective re-establishment and representation in Congress of Southern state regimes that looked and acted much like the prewar power structure – and that were sometimes even run by former Confederate officials. Johnson opposed the Republicans on every one of these points.

But Congress’s conflict with Johnson went beyond mere disagreements over policy, great as those were. The concern was Johnson’s overall character and conduct.  Johnson certainly was all of the things described above: racist, intemperate, wooden, defiant, vulgar, politically incompetent, indifferent (at best) to the plight of the newly freed blacks of the South, and the best friend defeated Southern white former-rebel racists could possibly have had in the White House. He vetoed civil rights legislation designed to protect blacks from oppression. (Congress overrode that veto, and an astonishing fourteen others.) He opposed, and urged Southern states not to ratify, the Fourteenth Amendment, designed to constitutionalize such civil rights and give Congress unquestioned power to enact implementing legislation. (The amendment eventually was ratified over his opposition.) He more than looked the other way at Southern officials’ defiance of the law and registration of white voters swearing false oaths that they had never engaged in rebellion (at the same time they denied blacks the right to vote at all): he encouraged such actions as states’ rights. More than that, he accused Congress of being an illegitimate body, because it excluded representatives from unreconstructed states of the South until they embraced civil and voting rights. When Congress passed (again over Johnson’s vetoes) Reconstruction Acts imposing provisional military government on states of the former Confederacy, Johnson persisted in resistance, refusing to abide by the terms of Congress’s enactments, issuing conflicting orders to military commanders, and removing generals who wanted to enforce Congress’s laws.

Johnson was a disgrace, an embarrassment, and an arrogant pigheaded fool. He was a genuine danger to the safety and security of American lives, an unfit Commander in Chief, and an abject failure as president. To many, it seemed clear that this situation simply could not go on.

The Propriety of Impeaching the President

To say that Congress and president were politically opposed to each other over Reconstruction would be an understatement. This has led many historians to cast the effort to impeach Johnson as either a trumped-up disagreement over policy or a fit of political or personal pique, and to assert that Johnson’s removal from office would have been constitutionally improper and set a harmful precedent threatening presidential independence from Congress.

I’m not so sure. Contrary to the views of Southern-sympathetic historians – views that dominated twentieth century Reconstruction scholarship until recently, that greatly influenced popular perception, and that sometimes were tinged by the racism of their age – the impeachment of Andrew Johnson was about something deeper than “mere” policy disagreements or personal bitterness. Impeachment was spurred by the broader sense that Johnson had engaged in culpable incompetence, obstructionism, and misconduct that threatened the constitutional order and well being of the nation.

To say that impeachment on such grounds would be unjustifiable is a highly debatable proposition. At the time, members of Congress disagreed sharply about whether Johnson’s misconduct fit within Constitution’s broad standard of “high Crimes and Misdemeanors.” Radicals believed it did. But moderate Republicans (and Democrats) held out for a defined “crime” in the narrow, criminallaw sense.

The Radicals had the better of the constitutional argument. The original meaning of “high Crimes and Misdemeanors” plainly was not confined to commission of ordinary crimes. Rather, it was a well-known term of art derived from English political history, encompassing so-called “political” offenses against the constitution, the system of government, or the public good. The framers consciously drew on that understanding. Great Britain was “the model from which the idea of this institution has been borrowed,” Alexander Hamilton wrote in Federalist 65. As such, impeachment was understood to be a vital legislative check on executive misuse of power or improper behavior – a “bridle in the hands of the legislative body upon the executive servants of the government,” as Hamilton put it.

As Hamilton explained impeachment:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

The impeachment standard thus entailed broad discretion, to be exercised by a political body judging political offenses. Impeachment proceedings “can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges,” as would govern in ordinary criminal-law cases.  Trial in the Senate was appropriate due to the “awful discretion” involved in impeachment proceedings. Nowhere did Hamilton mention ordinary criminality as a necessary element of an impeachable offense. Literally all relevant evidence of the original understanding of impeachment is to the same effect: the debates at the Constitutional Convention, statements made in state ratifying conventions, and early scholarly commentary and congressional debates all support a broad understanding of the scope of the impeachment power, not limited to ordinary criminality, and a correspondingly broad sphere of legislative discretion to judge what constitutes misconduct warranting impeachment and removal.

The Constitution’s broad standard thus suggests a conclusion different from the supposed consensus of history with respect to Johnson’s impeachment. It suggests the propriety of impeaching Johnson for his overall course of conduct in office. It is constitutionally sufficient that Congress judge a president to have abused or misused official power, betrayed or compromised the national interest, or seriously failed in the performance of the responsibilities of the office. Put in those terms, Andrew Johnson plainly was guilty of “high Crimes and Misdemeanors.” And even if understood as primarily a political struggle over Reconstruction, Johnson’s impeachment would have stood squarely in the tradition of English impeachments over grand issues of state involving fundamental issues of constitutional power and the division of executive and legislative authority.

Gotta Have a Gotcha?

That indeed was the thrust of the early efforts to impeach Johnson, in 1867. Those efforts fell short, however, precisely because of the views of those who (wrongly) believed that something more was constitutionally required – that a specific “gotcha” was needed. That in turn led to the next great error in the effort to impeach Johnson – and one that ultimately enabled him to survive.

Congress enacted legislation (again over Johnson’s veto) restricting the president’s right to remove executive officials, including cabinet officers, without Senate approval. It specifically labeled a violation of this act a “high misdemeanor” – by implication an impeachable offense. For those looking for a defined-in-advance “crime,” this would seem to qualify. It was not quite a set-up – a baited impeachment trap – but in practical effect that was how it operated. Johnson, true to form, eventually walked deliberately and defiantly into the trap, firing Secretary of War Stanton (who comically barricaded himself in his office and refused to leave). This supposed outrage gave the gotcha-seekers the gotcha they sought. Johnson fired Stanton in February 1868. Impeachment followed just a few days later.

There was only one problem. The Tenure of Office Act was unconstitutional, plainly interfering with the president’s executive power to direct his own administration. Every member of the cabinet agreed with Johnson as to the act’s unconstitutionality, supporting Johnson’s good faith belief. More than that, it was not even clear that the act even applied to Secretary Stanton’s situation. And still more than that, impeachment on this ground was, for many, a plain pretext. The real reasons for impeaching Johnson – the valid ones – had been presented earlier and not adopted.

As it turned out, this became extremely important. The articles of impeachment voted by the House were almost exclusively concerned with the supposed Tenure of Office Act violation and raised none of the true, valid, reasons for Johnson’s impeachment I have noted above. For some radical senators, this was no problem: they felt free to vote to convict the miscreant for many reasons, and this one would fit the bill (even if it didn’t, quite). But for some crucial senators – vigorously opposed to Johnson and otherwise likely votes to convict – the stated ground for impeachment was insubstantial, unconstitutional, or at the very least debatable. In conscience, they could not vote to convict on the dubious ground charged and they could not vote to convict and remove a president for grounds not matching the House’s stated basis for impeachment. Seven crucial “recusant” Republican senators voted for acquittal, giving Johnson his one-vote margin of escape.

The True Lessons of the Johnson Impeachment

What are the correct constitutional and political lessons of the Andrew Johnson impeachment fiasco? I count several – but not among them is the conventional view that impeaching Johnson was indefensible.

The first and most obvious lesson is simply the extreme political difficulty of impeaching even a dreadful, hugely unpopular, embarrassment of a president under any circumstances. It is no exaggeration to ask: If Johnson could not be successfully impeached and removed for his severe misfeasance in office, what president ever could? The Republicans had overwhelming majorities and Johnson had earned his punishment. But it was still not enough. Is presidential impeachment, for anything other than proven serious criminal-law offenses, even a possibility anymore? One can forgive those who despair that the power of impeachment has become a dead letter. (Thomas Jefferson once famously dubbed it a mere “scarecrow.”) Of course, the Johnson precedent is in no way binding for future impeachment situations. But it is nonetheless a demonstration of its severe political difficulty, and the great barrier of the two-thirds majority rule. (A corollary lesson is the danger of political miscalculation: the Republicans thought that impeachment and conviction of Johnson would be a slam-dunk. Perhaps it should have been, but it wasn’t.)

The second lesson concerns the consequences of failure to understand “high Crimes and Misdemeanors” as a constitutional term of art. Had more members of the House recognized the propriety of impeaching Johnson for something other than literal law violations, the result might have been different. As it was, it took only a controlling minority bloc to thwart the impeachment of a disastrous president. Wrong congressional constitutional interpretations have grave public consequences.

A third lesson is that one error begets another. The failure of impeachment on valid (if generic) grounds launched the misbegotten, unnecessary quest for a “gotcha.” That quest proved successful in the Johnson case – at first. But it ultimately proved to be Johnson’s saving grace: the difficulty of proving a specific prescribed offense, as if in a criminal trial, combined with the constitutional dubiousness of the charge, provided a field day for Johnson’s lawyers, enabling them to fight impeachment on the most favorable political terms and on the most technical of legal grounds. Johnson was not quite a martyr, but the impeachers ended up being far from convincing heroes. (A related lesson is the necessity of getting the charge right – and the difficulty of obtaining agreement on what the right charge is.)

A fourth lesson: ordinary political considerations matter considerably, including timing. The Johnson impeachment drive lost its initial momentum. The eventual impeachment, in addition to being on the wrong grounds, came at the wrong time. Johnson was in his last year in office and had already been rendered inert by Congress. Another political consideration was who was waiting in the wings: the obstreperous radical senator Ben Wade, president pro tem of the Senate (at that time the next-in-line for the presidency); Wade was an unappealing choice for moderate and conservative Republican senators. Then there was the other guy waiting in the wings: Ulysses S. Grant was the expected Republican nominee, universally popular and trusted, a war hero, a reliable Republican, responsible, safe, and respected. The nation had endured Johnson for three years. Why not wait it out and be done with the now-irrelevant Johnson in a year?

A fifth lesson is that enabling nutcases and extremists in support of impeachment do not help the cause. There are more juicy details to the story, but the short of it is that some leading proponents of Johnson’s impeachment embraced wild conspiracy theories and outrageous, unsupported charges that distracted from and undermined the legitimate grounds that did exist. These included allegations that Johnson had bribed public officers, had plotted to betray Tennessee during the war, was repeatedly drunk in public appearances, and even conspired with John Wilkes Booth and Jefferson Davis in plotting the assassination of Lincoln. None of these charges went anywhere, of course. When the accusers sound crazier than the accused, even an irresponsible president can avoid removal from office.

The Johnson experience was – in all respects – an unhappy one. America should never have to tolerate an irresponsible, abusive, inept, racist president. The impeachment power is an appropriate constitutional remedy. But it must be rightly, carefully, and precisely used: It is not properly a search for a “gotcha” in the form of an indictable crime. It is instead an instrument for checking – and removing – an unsuitable executive who has engaged in the misuse of official power, betrayed the interests of the nation, or violated the public trust. But to employ the power of impeachment in its proper role, and do so effectively, requires an extraordinarily broad political consensus in Congress. As Johnson’s acquittal shows, the vote to remove a terrible president can come up short.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 23, 2018 at 09:29:38 am

The clearest lesson, of Johnson's and all impeachments since, is that the 1787 constitution long ago outlived its usefulness and ought to be replaced with a frame of government making the head of government responsible to the confidence of a simple majority of the people's representatives, at inception and throughout the head of government's mandate.

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Lord North
on February 23, 2018 at 10:51:25 am

A little harsh on Andrew Johnson. He seems to have been no more racist than average in 1866 and no different than his opponents with respect to the rest of the charges laid.

He was a populist with ambition and, consistent with Lincoln, he chose to view the war as a war to restore the Union not as a war to conquer and occupy the South. Johnson certainly wanted to break up the plantation aristocracy in the South and planned to pardon the rank and file in the Confederate Army, all of whom were drafted after 1862, while excluding those whose property amounted to $20,000 or more.

The voting rights issue was constitutionally problematic since some Northern states also disenfranchised Blacks. What to do: Force the enfranchisement of Blacks in Connecticut as well as in Virginia? If not, why not? Didn't the 14th Amendment apply to all of the states?

In the end articles voted by the House rested on the Tenure in Office Act and some intemperate political speeches, nothing else.

Lincoln had crossed swords with the same Radical Republicans over the same issues beginning in late 1864 and won. Johnson did, too.

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EK
on February 23, 2018 at 16:12:53 pm

But did not Johnson also conspire with certain (presumably) ex-Confederates to enable those same Confederates to re-assume power in Louisiana and in so doing prevent the Freedmen from exercising their newly recognized rights?

There is more to Mr Johnson's efforts in support of the old school in the South!

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gabe
on February 23, 2018 at 16:16:22 pm

Mr Paulsen makes a good case for the concept of *political* impeachment. It is clear from the record that no *gotcha* is required. It is also clear from history that it is exceedingly difficult to bring to a successful conclusion.

However, it appears that impeachment of the President is more likely than impeachment of a Federal judge, as there has only been one instance of judicial impeachment.

Ah, what the heck, we are doomed anyway!

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gabe
on February 23, 2018 at 16:39:04 pm

Excellent, well-written article, of the highest quality I have read on this site and worthy of a much broader audience.

It should be read by Robert Mueller and the Dimms as they conspire to fuel the flames of impeachment.

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timothy
on February 23, 2018 at 18:20:17 pm

That wasn't in the Articles of Impeachment voted by the House.

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EK
on February 24, 2018 at 11:36:05 am

Yep, but as the essayist pointed out, the Congress was looking for a "gotcha" and passed on other opportunities.

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gabe
on February 24, 2018 at 14:51:02 pm

To the extent Paulsen is actually arguing that the Senate is free to impeach any president for good reason, bad reason or no reason, I think he is wrong.

I think that the Senate is bound by the articles of impeachment voted by the House. Why else is there talk of the House acting as a grand jury ("The House . . . shall have the sole Power of Impeachment" Art I § 2), the Senate acting as a trier of fact and the chief justice acting as the presiding official (Art. I, § 3)?

I think it clear that if the Senate's decision on impeachment should be completely divorced from the articles of impeachment voted by the House, then the function of the chief justice would be to enter a judgment notwithstanding the verdict (JNOV). Basic concepts of due process demand this result.

If a graduate of Yale Law School and a professor at Princeton and former apparatchik in the DoJ were actually making such an argument, then it would be proof that we owe the government such people control no allegiance and are free to resist them by any means possible as they are clearly resolved to resist us by any means possible.

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EK
on February 26, 2018 at 18:20:56 pm

The checks and balances system was set up to assuage the fears of smaller, less-powerful states that they would not be subjected to a dictatorship of the majority. It seems, judging by the election results, that the Constitution is working just fine.

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Bill Peschel
on February 26, 2018 at 18:56:52 pm

Assuming that we elected an obviously incompetent leader (I'm not saying Jackson was) could the House vote classify that as a “high Crimes and Misdemeanors” and impeach that person? Obviously not specific. Obviously it would have to go through the courts and be evaluated in Supreme Court.

Then Senate say yes, guilty and the person is gone. In effect the Senate can get rid of anyone who is terribly unpopular. It is a 2/3 vote so I don't think it is justify resistance by any means possible.

Now if it were something stupid like "there were improper contacts between Russian's and members of Trump's staff then yes, my loyalty but not my obedience would be gone.

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Jeff Boyd
on February 26, 2018 at 20:34:44 pm

Very thought-provoking. Well done!

I used to be a big proponent of using mechanisms like impeachment to assert republican control over seemingly unaccountable officials, but after living through the recall process in the aughts in California and watching from a distance the way the same process wrought havoc in Wisconsin (for purely partisan reasons) I now favor the approach to impeachment that the Senate took with Johnson. Frankly, I don't trust Congress any more than I trust the executive to behave rationally and responsibly, and therefore I think the standard of an actual, concrete crime is preferable to what the Founders may well have intended. Does anyone here seriously want Maxine Waters defining "High Crimes and Misdemeanors" in a general, political sense? A narrow understanding of impeachment will be the only thing protecting a duly elected executive from the whims of the jack-asses in Congress.

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XianLSE
on February 26, 2018 at 23:19:39 pm

If Johnson had been convicted by the Senate, who would have succeeded him as President?

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Image of Steven Chaffin
Steven Chaffin
on February 26, 2018 at 23:43:30 pm

I think you are missing Paulsen's point that "high crimes and misdemeanors" should mean a lot more than just that vague statement (as it sounds to modern ears) in itself per English judicial traditions that the phrase comes from. His detailed laundry list of Johnson's transgressions is the sort of case that would have to have been presented by the House to justify his removal by the Senate. It would not have been a trivial, quick process as Paulsen recounts with the earlier clashes that did not quite achieve "critical mass".

I doubt anywhere near that kind of case could be made now against Trump, as most of the "charges" boil down to the Maxine Waters types yelling "we just don't agree with his viewpoint - it's not fair!" without anything as substantial as the charges against Johnson.

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R O
on February 27, 2018 at 08:37:56 am

If the House votes articles of impeachment and gives the Executive adequate notice of the charges against him and the opportunity to defend and the Senate votes to impeach based on the charges, all is well.

Certainly, no review by the Supreme Court is available. If the Senate goes off on a banter of it's own and impeaches on other grounds both the presiding officer and the House must object. This will produce a constitutional crisis that congress, the judiciary and executive must resolve. This is a political question not a legal question.

It is in the nature of high crimes and misdemeanors that they need not violate any law but rather that things like drunkenness, flagrant abuse of discretion, gross carelessness and conduct that brings into question the rectitude or competence of the government will certainly suffice.

The impeachments and attainders passed by the Long Parliament against Lord Strafford and Archbishop Laud in the 1640s are instructive. While the execution of Lord Strafford was not just, his removal from the king's council was. In light of this, the Constitution limits impeachment to from office and requires that a law be broken before any further civil or criminal penalties attach.

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EK
on February 27, 2018 at 08:47:13 am

Benjamine Wade (R -OH), the president pro tempore of the Senate because the vice president, Johnson, had become president.

Wade was one of leaders of the radical republican faction. The impeachment of Andrew Johnson looks very much like an attempted coup by a minority faction in the Senate. It's odd that Paulsen did not mention that point.

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EK
on October 10, 2018 at 06:02:44 am

[…] misuse or abuse of power (Nixon) and instances where the vote came up just short for conviction on somewhat similar grounds. (Johnson). There have been instances where judges were removed for misuse of judicial power (Judge […]

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Image of Objections to Impeachment: The Protest that “This Hasn’t Been Our Practice,” Part 1
Objections to Impeachment: The Protest that “This Hasn’t Been Our Practice,” Part 1
on December 10, 2018 at 08:34:01 am

[…] The Constitutional Propriety of Impeaching the President, Law & Liberty (Feb. 23, 2018), https://www.lawliberty.org/2018/02/23/the-constitutional-propriety-of-impeaching-the-President-andre… [https://perma.cc/ZQ9Y-ABZ8]. Tribe and Matz’s analysis of Johnson’s impeachment agrees with my […]

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Image of To End a (Republican) Presidency - Harvard Law Review
To End a (Republican) Presidency - Harvard Law Review
on November 12, 2019 at 09:45:24 am

[…] The Constitutional Propriety of Impeaching the President […]

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Image of Everything You Want (and Need) to Know About Impeachment »
Everything You Want (and Need) to Know About Impeachment »

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.