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CHAPTER 1
High Crimes and Misdemeanors

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The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

—Article II, Section 4, Constitution of the United States of America

IMPEACHMENT 101

The first thing you need to know is how impeachment works: The impeachment and removal of a president begins under the Constitution in the United States House of Representatives. An impeachment typically begins with an investigation by the Judiciary Committee. If the committee decides to investigate, it may then by majority vote recommend articles of impeachment to the full House. Members then vote up or down on each article. The House may also proceed with impeachment regardless of the Committee’s recommendations. If a majority of the House ratifies one or more articles of impeachment, the case against the president proceeds to a trial by the Senate, presided over by the chief justice of the Supreme Court. A special prosecutor, a representative from either party, or even members of the public can request an investigation, although the Committee or the full House must agree to proceed with the inquiry.

At trial, the Senate acts as both jury and judge, with the power to subpoena witnesses, issue contempt rulings, dismiss charges, set trial procedures, and overturn rulings of the chief justice. Prosecutors appointed by the House present their case to the Senate, and the accused makes his choice of counsel for the defense. There is no requirement that the accused must appear in his own defense. At the end of the trial, the Senate has the power to convict and remove the president by a two-thirds vote of those present.

A president cannot pardon himself from impeachment, and if ousted by the Senate, he immediately sheds the protection of presidential immunity and becomes subject to arrest, prosecution, trial, and conviction under state or federal criminal law. By a separate vote, the Senate can bar a convicted president from holding any future federal office. Otherwise, an impeached president, if constitutionally eligible, could run again for White House. A president can run again if he was not elected twice or if elected once he did not serve for more than two years as an unelected president.

Decisions on whether to impeach a president turn on the wisdom of Congress and do not require proof of a specific indictable crime under either federal or state law. The verdict of the House and Senate is final. There is no right of appeal or judicial review of their decisions.¹

Impeachment covers not just presidents, but other federal officials, notably judges appointed for life. Since America’s founding, the House has impeached two presidents and fifteen judges. The Senate acquitted both presidents. It convicted eight of the judges.²

AMERICA’S FOUNDERS STRUGGLE WITH IMPEACHMENT

After what George Washington called the “standing miracle” of his victory over British arms, the general retired to his Mount Vernon plantation. Bouts of smallpox, tuberculosis, malaria, and dysentery and years of tense warfare had racked his body, leaving him prey to debilitating aches and fevers and a “rheumatic complaint” so severe at times that he was “hardly able to raise my hand to my head, or turn myself in bed.” Yet in 1787, Washington donned his best breeches and frock coat, powdered his hair, and pushed his body to serve his country again: this time as the indispensable president of a constitutional convention in the sweltering Philadelphia summer.³

In the span of just over a hundred days, the delegates created a radically new frame of government powerful enough to protect and preserve their fledging republic, but one with enough checks and balances to safeguard against the tyranny that Americans had endured under British rule. These learned but pragmatic politicians adhered to the later warning of John Adams that: “Men are not only ambitious, but their ambition is unbounded: they are not only avaricious, but their avarice is insatiable.” Therefore, “it is necessary to place checks upon them all.”

The framers adopted impeachment as a necessary check against tyranny. “Shall any man be above justice?” asked the influential Virginia delegate George Mason. He warned that it is the president “who can commit the most extensive injustice.”⁴

Although they agreed on the need for impeachment, the delegates struggled with defining the grounds for indicting and removing federal officials. During the convention debates, to specify the criteria for removing a president, delegates used such disparate terms as “great crimes,” “malpractice or neglect of duty,” “corruption,” “incapacity,” “negligence,” and “maladministration.” They finally cast their vote for “high crimes and misdemeanors against the state,” then dropped the “state” qualifier, which both broadened and obfuscated the meaning of the impeachment.⁵

POLITICS WITHOUT CRIME

In the election of 1800, after one of the nastiest campaigns in U.S. history, the nation experienced its first political upheaval when the Democratic-Republican Thomas Jefferson defeated the Federalist incumbent president John Adams. Federalists attacked Jefferson for his alleged atheism, radicalism, and lack of moral standards. One propagandist warned that with Jefferson as president, “murder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of the distressed, the soil will be soaked with blood, and the nation black with crimes.”⁶ The Jeffersonians fought back, charging Adams with scheming to extinguish the republic by marrying one of his sons to the daughter of the King of England and reestablishing British rule over America.

During this interregnum, John Adams pushed through the Judiciary Act of 1801, infuriating the victorious opponents. The act created sixteen new circuit court judgeships and reduced the size of the Supreme Court from six to five, thereby depriving Jefferson of an appointment. In the nineteen waning days of his presidency, Adams appointed so-called Midnight Judges to these new circuit court positions. When Oliver Ellsworth, the chief justice of the Supreme Court and an Adams loyalist, conveniently retired, Adams was quick to appoint the staunch Federalist John Marshall as his replacement. Marshall served as chief justice for more than thirty years.⁷

Jefferson and his new partisan majority in Congress repealed the Judiciary Act and turned to impeachment for rectifying what they decried as the Federalists’ packing of the courts. They carefully picked as their first target the elderly Federalist district court judge John Pickering, whose advanced dementia and alcoholism led to erratic and sometimes bizarre behavior on the bench. The impeachment of one of many federal trial judges may not amount to very much, but Jefferson and his allies in Congress targeted Pickering as part of a larger plan: to breach the separation of powers and place the constitutionally independent judiciary under the heel of the president and his party. Ironically, it was Thomas Jefferson, who famously had written in his “Notes on the State of Virginia” that concentration of power “in the same hands is precisely the definition of despotic government,” who led this assault on the separation of powers.

Jefferson as party leader set in motion the House’s proceedings against Pickering by transmitting to Congress “letters and affidavits exhibiting matter of complaint against John Pickering, district judge of New Hampshire, which is not within executive cognizance.” Eventually, Jefferson’s loyalists in the House drafted four dense articles of impeachment. None charged a specific violation of law, instead merely citing Pickering’s poor judgment, intoxication, and rants from the bench as evidence that he lacked the “essential qualities in the character of a judge.”⁸

The Senate convicted Pickering in a straight party vote, making him the first federal official removed from office under Article II, Section 4 of the Constitution. Senator William Giles of Virginia, the Jeffersonian leader in the Senate, said bluntly: “We want your offices, for the purpose of giving them to men who will fill them better.” Lynn W. Turner, the preeminent historian of the Pickering impeachment, wrote, “By confusing insanity with criminal misbehavior they [the Jeffersonians] also wiped out the line between good administration and politics and made any word or deed which a political majority might think objectionable the excuse for impeachment and removal from office.”⁹

Emboldened by Pickering’s successful conviction, the Jeffersonians next targeted the United States Supreme Court by impeaching Federalist justice Samuel Chase. In 1804, the House voted along party lines to charge Chase with eight articles of impeachment; seven turned on his allegedly unjust and partisan judicial conduct and rulings. The final article cited “intemperate and inflammatory” and “indecent and unbecoming” remarks that Chase made while charging a Baltimore grand jury. None charged him with an indictable crime. The Senate acquitted Chase on all articles, which ended Jefferson’s war on the judiciary but did nothing to clarify the grounds for an impeachable offense or stop similar maneuvers in the future.¹⁰

In his famed 1833 Commentaries, U.S. Supreme Court Justice Joseph Story reflected on the constitutional history of impeachment and the examples of Pickering and Chase. Impeachment, he concluded is “of a political character” and reaches beyond crimes to “gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.”¹¹

The first impeachment of an American president, Andrew Johnson in 1868, would show just how prophetic Story’s words proved to be. Johnson’s impeachment raises three major issues that are still lively and controversial today: 1. What are the grounds for impeachment, 2. What is the scope of presidential authority and, 3. What is the president’s responsibility to obey the law?

THE MOST ACCIDENTAL OF PRESIDENTS

Like Donald Trump, hardly anyone expected Andrew Johnson to become president of the United States. If Trump seemed destined for stardom in business, young Andrew Johnson, born into poverty and apprenticed to a tailor at the age of ten, seemed destined to sew buttons and cut cloth for the rest of his days. What Johnson lacked in sophistication he compensated for in ambition, grit, and bravado. With help from his wife and customers at his shop, he first learned to read and eventually became a compelling speaker who had a say-anything style that confounded the conventional politicians of his time.

Johnson scratched his way up the sand hill of Tennessee politics as a Democrat in the early and middle years of the nineteenth century. He eventually became a United States senator in 1857. Johnson campaigned as the champion of the common people of America, who he said the political elites of his time had scorned and ignored.

Four years later, Johnson’s political career seemed over when the nation plunged into civil war. Seven southern states, threatened by the election of Republican president Abraham Lincoln on a platform opposed to the expansion of slavery, seceded from the Union before his inauguration. The Civil War began when Confederate batteries fired on Fort Sumter on April 12, 1861, and in June, Tennessee seceded, becoming the last of the eleven states of the Confederacy.

As a slaveholder who upheld the sanctity of the federal union, Johnson was the maverick of his time, and he was the only senator in a seceding state who refused to resign his seat and join the Confederacy. Although Union predictions of a quick victory proved false and the war would grind on for four bloody years, Johnson’s exile was short-lived. In February 1862, Union troops captured Nashville, Tennessee, making it the first Confederate state capital restored to the Union. Republican president Abraham Lincoln rewarded the loyal “war Democrat” Andrew Johnson by appointing him governor of Tennessee.

Two years later, Lincoln dumped his vice president, Hannibal Hamlin, and put his prized Democrat, Andrew Johnson, on his reelection ticket in a show of national unity. In his second inaugural address, Lincoln spoke of how the great and bloody war was a divine retribution for slavery, visited upon a guilty people both north and south. If the bloody war “continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk,” he declared, “and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, ‘the judgments of the Lord are true and righteous altogether.’ ” His new vice president, Andrew Johnson, listened, but failed to comprehend the profound implications of Lincoln’s words.¹²

THE WORST FATE THAT COULD BEFALL HIM

On April 15, 1865, just over a month after his inauguration, Lincoln died after the first presidential assassination in American history, and Johnson became the most accidental of presidents. In the wake of Lincoln’s death, Johnson showed a humility of the moment never seen in Donald Trump, commenting, “I feel incompetent to perform duties so important and responsible as those which have been so unexpectedly thrown upon me.” But Johnson’s humility did not last. His more enduring character traits inclined him to stubbornness, hasty action, disdain for cautious advice, and ill-tempered retorts against critics.¹³

Johnson loved the Union but not the black people it had liberated from slavery. Although later in life a moderately wealthy slaveholder, Johnson rose from the lower ranks of white society, what some at the time called “mudsills,” the humble white farmers, laborers, tradesmen, and mechanics that, like Trump, he had championed in his political campaigns. He saw mudsills as threatened both by aristocrats from above and aspiring black people from below. At an outdoor rally, he told a crowd of cheering white men that he was their Moses who would lead “the emancipation of the white man” from their slavery under postwar Reconstruction. Johnson, declared the former slave and abolitionist Frederick Douglass euphemistically, is “no friend of our race.”¹⁴

Johnson was an odd man in his time. He was an apostate Democrat assuming the incumbency of a Republican president. He lacked allies in either party and prided himself as an outsider untethered to a capital city that he called “12 square miles bordered by reality.” By opposing efforts to reconstruct the nation and integrate newly freed slaves into American life, Johnson quickly fell afoul of a Congress controlled by Republicans with southern states still in limbo. He pardoned from the consequences of rebellion thousands of wealthy planters, some of whom with their wives had wined and dined him in Washington. With his humble roots and his penchant for spouting populism but privileging the rich, Johnson foreshadowed Trump.

Johnson pushed to restore southern states swiftly to the Union with no controls on race relations. He lambasted the “Radical Congress” for giving blacks privileges “torn from white men.” In a comment eerily similar to Trump’s denigration of a “so-called judge,” Johnson decried Congress as “a body called or which assumes to be the Congress of the United States.” He proclaimed to be protecting America, not from ex-Confederates, but from radical Republicans and their Negro allies. He forced Congress to override his vetoes on legislation aimed at protecting black rights and safety in the South and exploited his powers as president to evade and obstruct the enforcement of these laws.¹⁵

Johnson’s conduct had tragic consequences for black people in the South. He restored to power, political and economic, much of the old slaveholding elite, who proceeded to keep their former slaves poor, controlled, and powerless. He forced his successor president and Congress to essentially begin anew much of the process of Reconstruction. Ultimately Reconstruction failed. The South remained mired in poverty, and the white supremacists who regained full control of southern governments imposed on African Americans the Jim Crow system of segregation and discrimination that endured for nearly a century. The failure of Reconstruction, “to a large degree,” wrote the historian Michael Les Benedict, “could be blamed alone on President Johnson’s abuse of his discretionary powers.”¹⁶

In 1867, murmurings of impeachment began to circulate among exasperated, radical Republicans in Congress. In March, they had enacted over Johnson’s veto the Tenure of Office Act, a law that cut into his powers by prohibiting the president from replacing without consent of the Senate any federal official who had previously won Senate approval. To bait an impeachment trap, Congress inserted a clause that said any violation constituted a “high crime and misdemeanor.” And then, they waited.¹⁷

JOHNSON STANDS HIS GROUND

Johnson was at the defining moment of his presidency. His response to Congress’s challenge would decide his own fate as president, with profound implications for every successor in the White House. He could battle Congress and risk impeachment or withdraw from the fray and count down passively the final days of his presidency. Or he could change his ways and reach an accord with the Reconstruction Congress.

Johnson stayed true to his notoriously pugnacious character and chose to fight. He taunted Congress by deliberately violating the Tenure of Office Act. “I have been advised by every member of my Cabinet that the entire Tenure-of-Office Act is unconstitutional,” he later said.¹⁸

The House of Representatives struck back, by voting along party lines to approve articles of impeachment tied to Johnson’s violation of the act. “He is not Napoleon,” said Republican representative Tobias A. Plants of Ohio, “there will be no coup d’état!” To keep open all options for the Senate, members voted for eleven verbose and repetitive articles, totaling some forty-five hundred words.¹⁹

In the fixation on the dubious Tenure of Office violation, lost were the potentially more serious charges that Johnson had abused presidential power to obstruct Reconstruction and delegitimize another branch of government. Embedded within the garrulous articles was the charge that his conduct was “denying and intending to deny, that the legislation of said Congress was valid or obligatory.” The articles charged him with saying that Congress was not a legitimate body “authorized by the Constitution to exercise legislative power.” The articles further charged that he had willfully schemed to “prevent the execution” of legislation vital to congressional Reconstruction.²⁰

Johnson’s last chance to fight for his survival in the Senate had arrived. The Senate trial dragged on for nearly three months, with House prosecutors and defense lawyers clashing on issues that cut to the heart of the meaning of impeachment and the scope of presidential authority.

IMPEACHMENT’S BIG ISSUES

America’s founders, insisted the prosecutors, placed no restrictions on what qualifies as an impeachable offense. Impeachment is not meant solely “for the punishment of crime,” argued the chief prosecutor, Benjamin F. Butler of Massachusetts. A president should be impeached and convicted if he “imperils the public safety” and shows himself “unfit to occupy official position.” Wrong, said Johnson’s defense attorney Benjamin Curtis. Impeachment, he argued, requires a violation of law and not just of any law, but of “only high criminal offenses against the United States.” The Senate cannot sit “as some nameless tribunal with unbounded and illimitable jurisdiction.”²¹

Prosecutors claimed that Johnson had no absolute authority to disobey the law, and that his discretion begins and ends with his veto power. The right “to judge upon any supposed conflict of an act of Congress with the Constitution is exhausted when he has examined a bill sent to him and returned it with his objections,” Butler said. After that, he “must execute the law, whether in fact constitutional or not.” Otherwise, “the government is the government of one man.”²²

The House’s constriction of presidential power “does offend every principle of justice,” responded another presidential lawyer, William Evarts. “If an act be unconstitutional [the president] had a right to obey the Constitution,” and “to raise a question between the Constitution and the law.” The prosecutors, he warned, had proposed a subversive doctrine that “constitutional laws and unconstitutional laws are all alike in this country,” and the president must obey both equally.²³

In their final bold argument against excessive presidential authority, prosecutors said that the laws of Congress restricted the president’s powers to remove federal officials. “If we concede such royal power to a president,” said Representative John A. Logan of Illinois, “he is henceforth the government.” Americans must ask, “Will you have Andrew Johnson as President or King?” Johnson’s attorney general, Henry Stanbery, who rose from a sickbed to defend his president, argued that the Constitution granted the president absolute authority over removing administration officials. He fired Stanton “in the exercise of an undoubted power vested in him by the Constitution,” performing “a strictly executive duty.”²⁴

Eventually, the Senate voted on three of the House’s charges, only to fall one vote short of the two-thirds needed for conviction in each case. Seven Republicans joined all the minority Democrats in voting for Johnson’s acquittal. “I knew he’d be acquitted; I knew it,” declared Johnson’s wife, Eliza, unsurprisingly his staunchest supporter.²⁵

Yet defecting Republicans who saved Johnson’s presidency may have been informed less by a quest for justice than by the rules of presidential succession at the time that would have elevated the controversial President Pro-Tem of the Senate, Benjamin Wade of Ohio, to the presidency. The outspoken Senator had earned the nickname of “Bluff” and alienated many fellow Republicans with his radical views on Reconstruction and his support for paper money and protective tariffs. James Garfield, then a member of Congress, privately wrote that conservative Republicans feared “the Presidency of Ben Wade, a man of violent passions, extreme opinions, and narrow views.”²⁶