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Making Impeachment Matter

Democrats need to face up to their constitutional duty without fear.

President Andrew Johnson, circa 1865. (Brady Collection/Library of Congress)
President Andrew Johnson, circa 1865. (Brady Collection/Library of Congress)

A national poll in September, one of the first taken after Speaker Nancy Pelosi announced that the House of Representatives would initiate a formal impeachment inquiry regarding the president’s dealings with Ukraine, turned up a plurality of respondents already backing Trump’s impeachment. The spread of opinion was as follows: 42 percent of Americans thought Donald Trump deserved to be impeached, 22 percent thought it was too soon to say, and 36 percent had already made up their minds that Donald Trump should not be impeached.

An October 1998 poll conducted shortly after the House of Representatives opened a formal impeachment inquiry against Bill Clinton, unearthed by NBC News’ Steve Kornacki, showed that 60 percent of Americans did not believe Clinton deserved impeachment. And 37 percent believed he did.

That rough third of American voters who were convinced from the start that Clinton must go and Trump must stay are the same—functionally, not literally, as many among that cohort died off and were replaced between 1998 and 2019. Every serious attempt to remove a president has had to confront this segment of the electorate’s loyalty—or fervent opposition—to the president under investigation. If Democrats have spent much of Donald Trump’s presidency acting as if they fear Americans are not on their side, it is because these are the Americans they are thinking of.

In a bit of fortuitous timing, spring 2019 saw the publication of Brenda Wineapple’s The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation, a new history of the barely remembered impeachment of the seventeenth president. Johnson is known mostly as Lincoln’s reelection running mate, a loutish, ticket-balancing Southern Democrat who, after his elevation to the presidency, became a bitter foe of the Radical Republicans’ plan for postwar Reconstruction in the former Confederacy. 

Wineapple says she never intended The Impeachers to be as relevant to our own era as it’s turned out to be. She began it back when the prospect of a Trump presidency was a late-night monologue joke, and says her husband, the book’s first reader, was also the first to note how eerily it tracked the current moment. Other journalists and critics, including Mother Jones’s Tim Murphy, have noted how much Johnson resembles Trump, in word and deed. Johnson was erratic, racist, operatically self-pitying, and blamed every failure of his administration on enemies he believed to be trying to destroy him. He held wild, unscripted proto-rallies, in a nationwide tour called the “Swing Around the Circle.” These gatherings were nominally devoted to official presidential business, but instead served transparently political goals: to defeat the Fourteenth Amendment, to force Congress to seat members sent by Southern state governments still dominated by former Confederates, and to help Johnson win the next presidential election. He dragged along two nationally beloved war heroes, Ulysses S. Grant and Admiral David Farragut, to ensure he’d get an enthusiastic crowd at every stop.

During this tour, he let loose with some of the most inflammatory statements a president has ever made, often while those crowds alternated between goading him on and heckling him. Johnson actually got heckled quite a lot. In Cleveland, a crowd kept yelling, “three cheers for Congress!” At another stop, a newspaper reporter claimed, the crowd shouted down Secretary of State William Seward, with one person laying out the heckling strategy thusly: “We don’t want to hear you or Johnson. We shall only cheer for Grant and Farragut. You others are bad men.” Johnson, who would rant about his enemies even when speaking from prepared remarks, was also frequently just plain incoherent at these stops. When someone in the crowd, perhaps anticipating Twitter discourse, shouted at the president, “Don’t get mad!” he responded: “I will tell you who is mad…. ‘Whom the Gods want to destroy they first make mad.’” As Wineapple writes: “It wasn’t quite clear what or whom he meant.”

This was the raucous atmosphere in which President Johnson, on two occasions, called for two of the enemies he most bitterly despised, the Radical Republican Congressman Thaddeus Stevens and the abolitionist orator Wendell Phillips, to be hanged. It should be remembered that political violence, up to and including assassination, was endemic at this time—indeed, an actual Civil War had just ended, and the president had been shot by someone from the losing side. In particular, politicians and activists who fought for the civil rights of black Americans, as Stevens and Phillips proudly and honorably did their entire lives, were common targets of white violence. Whomever Johnson might have meant for the gods to destroy, this was no purely rhetorical threat in 1866. And Johnson felt comfortable bandying such rhetoric because he considered men like Phillips and Stevens not just his political enemies, but enemies of the people. His view—common enough at the time, of course, and still active today in an only slightly evolved form—was that enfranchisement of black men was disenfranchisement of whites. And so Johnson could claim that in stoking the mood of vicious racist reaction, he was only trying to prevent an assault on American liberty. “I call upon you here tonight as freemen to favor the emancipation of the white man as well as the colored man,” he said in St. Louis.

We have no scientific polls from that era to quantify what percentage of the country was on Johnson’s side, but the numbers don’t matter—for the same reason the numbers didn’t matter to the Republicans who charged ahead with their unpopular impeachment of Clinton. In any momentous national political confrontation, it’s not about the raw number of people who back you, but the authentic Americanness of the people you claim to represent. This was as self-evident to Johnson as it is to any right-wing demagogue today. Johnson was a “man of the people,” and “the people” in American political discourse, dating back to “We the people” itself, have always been more a concept than a literal population.

And of course, Johnson’s base of support had to be a minority, because he was fighting to narrow American democracy at just the moment it threatened to expand enough to extinguish the white supremacy that men like Johnson believed was foundational to the entire American project. By definition, this version of the people could not include black Americans, and it would continue excluding fully half of the adult population of America from the franchise for another 50-plus years.

Even without polling, and within that narrow cohort of the actually existing American people, it’s unclear if Johnson had anything like the popular support he imagined he deserved. Though racist conservatives in the North and South cheered him on in his fight against Congress, Democrats never forgave him for joining Lincoln’s ticket. He did make an aborted attempt to revive a third party—a sensible, moderate, third-way party, which would unite white populist Democrats with conservative Republicans who felt the Radicals were taking the whole racial equality thing too far—that, as these things tend to do, pissed off both sides. But he had his fans. Wineapple describes a few pieces of correspondence he received from admirers, sounding remarkably like MAGA Twitter thirstily @-ing the object of their own devotion. One wrote him advising that if Congress tried to impeach him, he should simply “Arrest the traitors.” Lock them up!

But history does not actually repeat itself, and the differences between that era and ours are perhaps even more important than the similarities. Reading Wineapple’s book, one is struck by the degree to which the Radical Republicans controlling Congress (in the House, especially) were not cowed by the prospect of reprisal at Johnson’s hands. Congress repeatedly acted aggressively and decisively, with no cringing fear of backlash. A Johnson-supporting lawyer, Charles Woolley, refused to cooperate with a House committee investigation into possible corruption in the impeachment vote itself. So the House arrested him for contempt of Congress and locked him in the basement of the Capitol. It’s truly incredible to note how industrious and aggressive Congress was in this era: The 40th United States Congress managed to ratify the Fourteenth Amendment, send the Fifteenth Amendment to the state legislatures, pass three comprehensive Reconstruction acts, and impeach the president, all within one term, back when members traveled to and from Washington by stagecoach and rail.

To be sure, all this aggressive oversight was only possible because Republicans had huge majorities in each chamber of Congress, and only because party leaders refused to seat representatives from the former Confederate states until they actually held elections black men could participate in. Still, even that strategic advantage speaks to their courage and resolution: They knew that their political project depended not on compromising with their enemies but on defeating them.

The House would eventually impeach Johnson mostly for a crime that sounds narrow and technical in scope—violating the Tenure of Office Act. In reality, though, this action pointed up exactly what was at stake. Over Johnson’s constant vetoes, the Republican-controlled Congress had undertaken what is now referred to as Congressional Reconstruction—a series of policies designed to crush the white supremacist governments of the former Confederate states and refuse to admit them back into the Union with full privileges until they created representative bodies untainted by the rebellion. Crucially, the main qualification for readmission was to permit black men in those states to vote. The military that had just defeated the government of the Confederacy would manage these states until they drafted new state constitutions with the full participation of all adult male citizens. Once Congress signed off on those constitutions, and after the states ratified the Fourteenth Amendment, they could have their senators and representatives seated in Congress. The entire plan depended on Secretary of War Edwin Stanton to oversee its implementation—much to Johnson’s consternation. Stanton was a Lincoln holdover, who, while no Radical, fully backed the political destruction of the remnants of the Confederacy.

When Johnson sought to remove Stanton, it was to pursue a far more ambitious goal. Personnel is policy, as they say in today’s Washington, and Johnson wanted to replace Stanton with someone who’d undermine Congressional Reconstruction, place lackeys in charge of the military governments, and allow former Confederates to reestablish states that looked exactly like the ones they had prior to the war. Yes, they would no longer harbor the official legal institution of slavery—but they would be free, at the federal government’s connivance, to make white supremacy the foundation of their political life. He was impeached for violating the Tenure of Office Act because of what that violation represented, and because of the likely consequences of that violation.

And of course, later historians would decide that Congress’s action was tyrannical. To force white Southerners to live in a multiracial democracy against their will was extremism. Worst of all, it was partisan. (Johnson was a former Democrat, and effectively a man of no party during his presidency, but he had the support of the few Democrats in Congress.)

As Wineapple puts it, critics of the Radicals have always said, “Well, those Republicans, they just wanted to keep power. Well, yeah, of course. They wanted to keep power because they wanted to use power, to make sure that blacks were enfranchised, that there was political representation, civil rights, due process, all of that. And you need the power to be able to do it.”

Pennsylvania Republican Representative Thaddeus Stevens well understood the stakes of allowing Johnson to direct Reconstruction. Writing to a former colleague, he foresaw “the Republicans once beaten into a minority by the force of negro prejudice will never again obtain the majority, & the nation will become despotism.” Those who dismiss the Radicals as rabid partisans should note that Stevens’s worries were eminently justified: If the South had been allowed to restrict the franchise, the result would have been the electoral defeat of Republicans—and despotism. By the time of the 1868 election, Alabama had 95,000 registered black voters and 75,000 registered white voters. Partisanship meant allowing the majority to select its representatives. Even to this day, expanding the electorate sounds like cheating to a certain brand of American moderate.

Johnson’s impeachment finally failed in the Senate, in part because senators retreated from high principle into legal formalism, because Johnson had some excellent lawyers, because some key senators may have been actually bribed—and in large part because some moderates simply wanted the thing to go away. There was an election coming up that they expected Republican war hero Ulysses S. Grant to win.

So Johnson was allowed, effectively, to get away with it. The moderates wanted to move on and campaign for Grant. Radicals like Wendell Phillips had already warned, prior to impeachment, what a lame-duck Johnson might do with the power he would retain if he were not removed. And while Johnson had very little time left, he did manage to deliver one last massive fuck you to his congressional tormentors on the way out: He issued a general amnesty pardoning every single Confederate, allowing them to rejoin public life immediately.

Because the bad guys won, the impeachment of Johnson was eventually dismissed, even among those not seduced by Lost Cause rhetoric or the racist fables of the alleged extremist excesses of Congressional Reconstruction, as a slightly embarrassing mistake—a bit of political exuberance that got out of hand.

The late constitutional law expert Charles L. Black Jr.’s Impeachment: A Handbook, a Watergate-era guide to the legal arguments around impeachment, is an essential text for understanding the midcentury liberal legal consensus on the history and legitimate purpose of the process. It mentions Johnson’s impeachment—the only existing precedent—only once, and dismissively at that.

Black offers a concise definition of what the Constitution’s impeachment clause means by “high Crimes and Misdemeanors”: “offenses which are rather obviously wrong, whether or not ‘criminal,’ and which so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator.” The Radical Republicans who led the impeachment of Johnson were operating with a strikingly similar definition of such trespasses. “Practically it would be found impossible to anticipate by specific legislation all cases of misconduct which will occur in the career of criminal men,” Johnson impeachment manager Representative George Boutwell said at the time. For example, Boutwell explained, “we have no law which declares that it shall be a high crime or misdemeanor for the President to decline to recognize the Congress of the United States, and yet should he deny its lawful and constitutional existence and authority, and thus virtually dissolve the Government, would the House and Senate be impotent and unable to proceed by process of impeachment to secure his removal from office?”

President Johnson, it should be noted, had recently made Boutwell’s question about Congress’ prostration before spreading executive tyranny slightly less hypothetical. He had just sent a message to the members of Congress informing them he’d decided not to send in the armed forces to shut them down—a tactical reference to imperial Oval Office prerogatives not yet exercised that also calls to mind Trump’s regular threats of civil war, recession, and worse should he be impeached. 

Despite Johnson’s efforts to marshal a quasi-imperial backlash, the 40th Congress continued hewing to this same understanding of the purpose of impeachment—that it is for addressing serious abuses of power, and not for enforcing specific statutes in the criminal code. When the House decided to impeach Johnson based on his violation of one recently passed (and dubiously constitutional) statute governing federal appointments, Thaddeus Stevens insisted on adding two sweeping charges encompassing the entirety of Johnson’s offenses against the authority of Congress and the public good. And these charges again went back to Johnson’s attempts to thwart Congress’s authority to manage Reconstruction. And yet Black—a lifelong supporter of civil rights, someone who ought to have considered Thaddeus Stevens one of the great American heroes—dismisses Stevens’s entire case as a politically embarrassing ploy that mostly managed “to bring disgrace and ridicule on Congress.” The proceedings against Johnson hinged, in Black’s estimation, on “a ridiculous charge.” This is what happens when the actual stakes of politics are forgotten, or become muddied by self-justifying moderates. In America, extremism in defense of equality is always a vice.

Black’s 1974 essay—rereleased for the Trump era, with a lengthy additional essay by contemporary legal thinker Philip Bobbitt—is a fascinating document. It is lucid and fair-minded. It also describes a world that no longer exists—one that seemed ironclad and permanent at the time, but turned out, under the pressures of a disingenuous right-wing legal ideology, to have been extremely fleeting. It is a world before the Federalist Society, before the ascendance of originalism, before Bush v. Gore. It’s a world where most reasonable people agree on the plain meaning of statute, precedent, and the Constitution, and most people in law or in Congress are reasonable.

As Black says in his introduction, “it is the cardinal principle at least of American constitutional interpretation that the Constitution is to be interpreted so as to be workable and reasonable.” And because the Constitution makes removing the chief executive (through a legislative process that the British invented and have long since abandoned) extraordinarily difficult, it therefore follows that this process has to be workable and reasonable on the face of things—even if other fully functional democracies have long made it significantly easier to remove heads of government. 

Or later, when defining what Congress should consider an impeachable offense, Black writes, “whatever may be the grounds of impeachment and removal, dislike of a president’s policy is definitely not one of them, and ought to play no part in the decision on impeachment.” It’s a sound and worthy principle, and in a measured appreciation of all things workable and reasonable, Black adds: “There is every reason to think that most congressmen and senators are aware of this.” Bill Clinton’s impeachment was less than a quarter-century away—though to be fair, that proceeding happened not because Republicans disliked his decidedly centrist policies so much as because they disliked him. 

Or when describing how the Constitution requires that removal in the Senate be a legal trial, despite lacking an element considered crucial to legal trials in the United States—impartial jurors—Black says that a senator simply must strive to rise above his (since yes, they were overwhelmingly he’s back then) personal feelings toward a given president and “try as far as possible to divest himself of all prejudice. I see no reason why this cannot produce a satisfactory result.” Black’s casual evocation of male leadership privilege here should occasion more than our own enlightened, equality-minded disapproval. Seen from the vantage of the broad centrist consensus informing his analysis, these minor examples of reflexive sexism say a lot about the assumptions Black was working from: Senators and congressmen would be wise, dignified men, capable of putting partisanship aside to accept the mainstream legal community’s interpretation of a reasonable Constitution. They would not be self-interested, in other words—they would not, as Thaddeus Stevens had, try to use impeachment to boost their party.

At around the same time that September 2019 impeachment poll was released showing precisely the size of Trump’s base of support, Delaware Senator Chris Coons, a Democrat, said something curious at a panel discussion. Asked if the increasing diversity of Congress had played some role in growing polarization and gridlock, Coons answered:  

I want to believe of our country and ourselves that a more
 diverse Senate that includes women’s voices, and voices of people of color, and voices of people who were not professionals but, you know, who grew up working class and were the first in their family to go to school and so forth, that we can engage those voices and that they can be part of the debate, and that that doesn’t produce irreconcilable discord.
 I think history may judge otherwise, but I appreciate your raising both points.

This, in other words, is Charles Black’s conception of congressional wisdom in the wild, in 2019. Its guiding assumption—Coons doesn’t want to believe it, but he clearly can’t help but entertain it—is that those whose privilege affords them effective immunity from the actions of a government also have the privilege of believing that their enlightened status allows them to think more dispassionately—and hence correctly—about politics than those who know that what happens in Congress has real-life effects on real-life people. Such above-the-fray tribunes of the public good are, as Coons suggests, on the right side of history, more or less by definition.

However, the actual lesson of Johnson’s impeachment could not be more different. The Radicals were right about nearly everything, and the moderates—who made a big show of caution and deference to the Constitution and generous accommodation to the office of the president—were plainly wrong. The ones who didn’t even have skin in the game but who wanted representation for those who did were correct to be fanatical in their pursuit of a more perfect country—and, more important, they were right about the baleful and regressive consequences of moderation in the face of extremist and reactionary unreason.

And any actually reasonable observer of American politics over the last several decades would have to conclude that it isn’t the diversity of one party that has led to gridlock. Rather, it’s been the brittle, homogeneous outlook of a conservative party that increasingly counts on a base that is overwhelmingly white and male—but, of course, anyone posing as a moderate interlocutor of good faith can blame their extremism on the diversity of the other side. “Radical liberals made me more racist” is, alas, not a remotely novel claim in American politics. Wineapple writes how, after Johnson angrily declared that “this is a country for white men, and, by God, as long as I am president it shall be a government for white men,” The Chicago Times—a reasonable Republican paper of the time—wrote: “If he used the language attributed to him, it was undoubtedly in reply to fanaticism and impudence.” In other words: The Radical Republicans made him do it.

But the belief in the reasonableness of the dispassionate white male senator walks hand-in-hand with the Johnsonian (and Jacksonian) belief that the real American subject is the humble white working man. When you wonder why it took so incredibly long for today’s Democrats to hint that their oversight of the president’s crimes amounted to preparations for impeachment, remember that many leading liberal legal and political theorists have long taught that the moderates were the unacknowledged heroes of the Johnson impeachment debacle. Yes, Democrats also initiated impeachment proceedings against Richard Nixon’s criminal presidency in 1973, but the lesson there also ultimately proved to be a moderate one: The president, recognizing he could no longer function as an effective arbiter of the people’s business, resigned in 1974, before things got too ugly and confrontational. The lesson of the Watergate inquiry was that the system worked, as the self-congratulatory consensus of that moment went—which is to say, Congress was relieved of forcing any kind of ultimate showdown with the executive branch over matters of serious constitutional principle. But while Nixon may have relied on white reaction for his political power, he was never its overt avatar in the White House—as the longtime right-wing activist M. Stanton Evans put it to Rick Perlstein: “I didn’t like Nixon until Watergate.”

Today’s congressional Democratic leaders know as an article of faith that they must, at all costs, refrain from awakening the electoral giant of white reaction. There were men, too, in Johnson’s time, who believed in something very much like House Speaker Nancy Pelosi’s utterly incoherent idea of “self-impeachment”—a mystic process by which the president is allowed to run amok while the opposition holds very still, waiting for him to go away on his own. And they advocated this dangerous fantasy for much the same reason that Pelosi did: Like today’s timorous Democratic leaders, moderates in the Johnson-impeaching Congress believed that a favorable-looking presidential election was on the horizon, and knew with utter assurance that opposing the racist president too vigorously would lead to a politically damaging national backlash by his supporters. This faux-savvy posture was and remains an abdication of both political and moral responsibility, particularly when the president isn’t just a criminal, but is actively using government power to entrench racialized despotism—even if permitting him to go ahead and do so is electorally advantageous over the near term.

At the time of Johnson’s impeachment, the Democratic Party very much was what Steve Bannon hoped Donald Trump could turn the Republican Party into: a white worker’s party, mixing outspoken defense of white supremacy with something much closer to a populist economic agenda than anything today’s Republican Party has ever managed. This has always been a heady brew in American electoral politics, especially when combined with state and local regimes dedicated to restricting the franchise, and an opposition that is only weakly committed to true multiracial democracy. 

This set of arrangements described the United States for decades after Reconstruction ended. More than a few left-of-center observers, echoing Thaddeus Stevens’s warnings about the implications of a Johnson victory, have wondered if it also describes the United States after Donald Trump’s 2016 election. Then, as now, this dark political vision depends on the continued suppression of popular democracy—something enabled in part by our archaic Constitution, which every year looks less reasonable than Charles Black imagined it to be. The U.S. constitutional order is certainly less reasonable now than it was in the days when Congress could force through multiple revolutionary civil rights amendments at a pace shocking to modern observers. The Founders, in their infinite wisdom, created a government that was designed to perpetuate white supremacy, that allowed men like Andrew Johnson and Donald Trump to ascend to the most powerful role in that government without anything resembling majority support. The Constitution’s sage authors also created as the only recourse to those men’s abuses of power a process that requires the opposition party to hold both houses of Congress and embrace hard-core partisanship. It’s hard to believe such a lopsided arrangement could ever produce a just result.

Perhaps we’ll know soon if it can. Trump, like Johnson before him, is very much one of the architects of his own impeachment—and he’s belligerently made that case in the face of a Congress that wanted more than anything to allow a few quiet investigations to play out in the background while presidential candidates talked kitchen-table issues and congressional leaders passed bipartisan retirement security legislation. Because of who Trump is, and how he’s spun his abiding flaws of character into ideological selling points for his base, he was simply unable to help himself from indulging in ridiculous, scandalous behavior. House Democrats had their hand forced, but as long as Rudy Giuliani is shouting at Howard Kurtz on Fox News instead of sitting in the Capitol basement room that once held Charles Woolley, it’s difficult to imagine today’s Democratic leaders in Congress acting with the same zeal in pursuit of justice as their Radical Republican forebears. The Radicals had a clear understanding of what they were fighting for—Johnson had to be stopped, not for the sake of restoring a comfortable status quo, but in order to allow the Radicals to remake the country itself. Today’s congressional Democrats are hoping to pass a bill to allow annual price negotiations for 250 prescription drugs. Expecting them to go to war with a president who will go to any length he can to shield himself from scrutiny of his activities or consequences for his actions seems a lot to ask. As the consensus has long held, impeachment is a political process, and many of the leaders of today’s Democratic Party long to hold power in a world without politics.