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Bill of Rights in Action 35:3 Bill of Rights in Action SPRING 2020 Volume 35 No3 IMPEACHMENTAND THE CASE OF ANDREW JOHNSON Collection of the U.S. House of Representatives of House the U.S. of Collection Members of the House of Representatives delivering the formal notice of impeachment of President Andrew Johnson to the Senate on February 25, 1868. Impeachment to remove a government official has a long in American states. Conviction did not result in any history, but the grounds for it remain controversial. Congress penalty beyond removal from office. has impeached, tried, and acquitted three presidents: Andrew After the Revolutionary War, delegates from the states Johnson, Bill Clinton, and Donald Trump. Andrew Johnson’s impeachment was the first, and it highlights the controversies assembled in Philadelphia and wrote a Constitution for of this practice. the new United States. They designed ways to try to pre- vent the legislative, executive, and judicial branches of Impeachment originated in England where the government from becoming too powerful. House of Commons impeached or accused high officials The delegates debated the question of impeaching of serious misconduct such as accepting bribes. the president. George Washington worried about “some The House of Lords then tried the impeached official. aspiring demagogue who will not consult the interest of Members of the House of Commons, called “managers,” his country as much as his own ambitious views.” The prosecuted while the Lords judged. If convicted, the of- delegates finally decided impeachment was a necessary ficial was removed from office and could suffer other safeguard against a president who abused his powers. punishments, including prison and even execution. Some of the American colonies adopted the practice What Does the Constitution Say About of impeaching executive officials. After the Declaration of Impeachment? Independence in 1776, most states of the now-indepen- Article II, Section 4, states that the president, vice dent United States included impeachment in their con- president, “and all civil officers of the United States” stitutions. However, there was one important difference may be impeached and then removed from office if between the impeachment process in England and that convicted of “treason, bribery, or other high crimes and IN THIS ISSUE This and the Next Issue of Bill of Rights in U.S. History: Impeachment and the Case of Andrew Johnson Action Will Only Be Available Electronically! by longtime contributor Carlton Martz ...........................................................1 To receive notifications of when the electronic World History: The Kurds: Straddling the Map of the Middle East by Samer Badawi, a contributor to +972 Magazine....................................5 edition is available for download, sign up at www.crf-usa.org/bill-of-rights-in-action. U.S. History: ‘Every Man a King’: Huey Long’s Troubled Populism by Carlton Martz..................................................................................................8 See page 16 for more information. © 2020, Constitutional Rights Foundation, Los Angeles. All Constitutional Rights Foundation materials and publications, including Bill of Rights in Action, are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators. (ISSN: 1534-9799) misdemeanors.” The term “civil other words, an impeachment officers” includes judges and trial is a political, and not a other officials appointed by the criminal, process. president and confirmed by the The Founding Fathers re- Senate. Article I, Sections 2 and 3 Congress of Library jected impeaching someone state the procedures for the im- for making a mistake, using peachment process. The House poor judgment or committing of Representatives “shall have a minor crime. They appeared the sole power of impeachment,” to leave “other high crimes and the Senate “shall have the and misdemeanors” to be sole power to try all Impeach- clarified over time by the ments.” An official can only be House of Representatives in convicted by a vote of two-thirds actual impeachments. of the senators. Some today argue that only Under Article I, Section 3, the violation of some criminal the consequences of conviction law is within the meaning of include removal from office and “other high crimes and misde- disqualification from holding meanors.” The defense argued any future federal office. Once this in the Andrew Johnson and removed, the official would be- Donald Trump impeachment tri- come a private citizen, subject Senate Sergeant-at-Arms George T. Brown serving the als. Harvard law professor emer- to trial and judgment in crimi- summons on President Johnson for Johnson’s impeach- itus Alan Dershowitz was on ment trial in the Senate. Born in Scotland, Brown was nal and civil courts. Article II, elected in 1861 as the Senate’s first Republican sergeant- Trump’s defense team in 2020 and Section 2, prohibits the presi- at-arms, the Senate’s chief law enforcement officer. argued that “high crimes and mis- dent from pardoning anyone demeanors” originally were viola- who had been impeached. tions of “laws written or unwritten . [which] meant . at the time of the Constitution . common law crimes.” ‘Other High Crimes and Misdemeanors’ However, most constitutional scholars disagree. For Early in their debates on impeachment, the dele- example, Professor Frank O. Bowman III of University of gates at the Constitutional Convention chose to limit the Missouri School of Law wrote in 2020, “The almost uni- grounds for impeachment. They quickly agreed on trea- versal consensus — in Great Britain, in the colonies, son and bribery. in the American states between 1776 and 1787, at the The delegates debated other grounds for impeach- Constitutional Convention and since — has been that ment. Some were serious crimes like embezzlement of criminal conduct is not required.” public funds. However, they also argued for non-crimi- Most impeachments in American history have nal behavior like misuse of presidential powers. been of judges who serve life terms on “good behav- James Madison and George Mason realized that ior.” Fifteen federal judges have been impeached, but the list of offenses could be endless. They finally the Senate removed only eight of them from office. In joined to add to treason and bribery “other high less than a third of those impeachments, the House has crimes and misdemeanors.” The English often used specifically referred to a criminal law. this phrase in their impeachments, which referred to Besides these cases involving federal judges, the serious offenses and behavior that could include Senate has convicted and removed only five other im- criminal or non-criminal acts. peached federal officials. Most constitutional scholars According to Madison’s notes from the Convention, say that the writers of the Constitution purposely set the the delegates adopted “other high crimes and misde- two-thirds requirement for conviction by the Senate high meanors” without much discussion. They seemed to to make it rare. know that this phrase meant acts equal in seriousness to treason and bribery. Andrew Johnson vs. the Radical Republicans In Federalist Paper No. 65, Alexander Hamilton Andrew Johnson’s political career began in wrote perhaps the most quoted definition of im- Tennessee. He was a Democrat who won elections to peachable offenses: “The subjects of [an impeachment the House of Representatives, the governorship of trial] are those offenses which proceed from the mis- Tennessee, and finally the U.S. Senate in 1856. conduct of public men, or, in other words, from the Although he owned slaves and rejected abolition, abuse or violation of some public trust.” Furthermore, Johnson opposed Tennessee’s secession from the the offenses “are of a nature . POLITICAL, as they Union. When the state did vote to secede in 1861, relate chiefly to injuries done immediately to society Johnson feared for his safety and fled. He was the only itself.” (Emphasis added by Hamilton himself.) In Southern senator who did not resign his seat when his 2 U.S.WORLD HISTORY HISTORY BRIA 35:3 (Spring 2020) state seceded. In Lincoln’s re-election campaign of 1864, thus allowing Johnson to fire and replace him with the Republicans chose Johnson, still a Democrat, to run someone else with the Senate’s consent? The with Lincoln as his vice presidential running mate to Constitution did not say anything about this. As ex- draw Democratic voters. pected, Johnson vetoed the Tenure of Office Act. But Johnson ignored the plight of ex-slaves, called freed- Congress promptly overrode the veto. men, who were impoverished, landless, unemployed, After Johnson suspended Stanton and replaced and already subject to persecution and violence. He also him in 1867, the Senate reinstated Stanton. Johnson opposed granting freed slaves the right to vote. “As long finally fired and replaced Stanton on February 21, as I am president it shall be a government for white 1868, informing the Senate of his decision. Johnson’s men,” he declared. position was that the law was an unconstitutional The overwhelming Republican majority in Congress violation of separation of powers, and he violated it was split between moderates, who wanted Johnson to to test it in the courts. The Senate refused to confirm simply modify his plans, and the Radical Republican fac- Johnson’s replacement of Stanton and voted to rein- tion. Both groups wanted equal civil rights for the freed- state Stanton as secretary of war. Stanton even bar- men and their integration into American society. But the ricaded himself inside his office and ordered his Radicals strongly objected to Johnson allowing former replacement to be arrested. Confederate leaders to regain political power. Newly Just a few days later, on February 24, the House of formed Southern governments passed “black codes” that Representatives voted to impeached Andrew Johnson, restricted the freedmen’s rights. The Radicals demanded 126 to 47. He was the nation’s first president to face protection and equal rights for the freedmen.
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