Building the Case for Impeachment, December 1866 to June 1867

Representative James Ashley of Ohio/tiles/non-collection/w/web_ashley_loc_03557u.xml Image courtesy of the Library of Congress In the closing days of the 39th Congress (1865–1867), Ohio Representative James Ashley introduced a resolution instructing the Judiciary Committee to investigate the President’s “corruptly used” powers, including Johnson’s political appointments, Confederate pardons, and legislative vetoes.
Republicans in Congress may have shared a mutual disgust at Johnson’s provocations, but they were far from unified over the direction of Reconstruction—or the possibility of impeaching the President. Differences of philosophy and tactics largely divided them into two occasionally amorphous camps: moderates and Radicals. In the late 1860s, it was often the case that alliances and voting records changed depending on the issue. As a result, modern historians have been unable to agree on the exact number of moderates and Radicals in the House during this period.19

Moderate Republicans, who made up the largest group, wanted to protect the freedpeople—the formerly enslaved men and women living in the defeated Confederacy—from violence and help them acquire economic security. But there were limits to moderates’ support for reform, especially when it came to the political rights of African Americans. After four years of war, moderates wanted to complete the process of readmitting the southern states by the 1868 presidential election. Any longer, they feared, and public support in the North for Reconstruction would erode and spark even more aggressive resistance in the South. Impeaching Johnson was a nonstarter.

The other group of Republicans in Congress, the Radicals, took a more expansive view of Reconstruction, and were willing to confront Johnson directly. At the heart of their Reconstruction vision, Radical Republicans sought to create an egalitarian and multiracial society by ensuring the civil and political rights of newly-freed African Americans. Radicals wanted freedmen to have the vote, putting them on the path not only to economic parity but also full political participation. Distrustful of southern leaders, Radicals passed a series of Reconstruction Acts in 1867 which outlined the process by which southern states could rejoin the Union and divided the former Confederacy into five military districts, each commanded by a U.S. Army general vested with considerable power to keep the peace and protect the rights and the lives of the freedpeople. Radical Republicans were willing to work on Reconstruction and deploy the U.S. Army in the southern states for as long as was necessary to uphold the rule of law.20

General Benjamin Butler of Massachusetts/tiles/non-collection/w/web_Butler_Benjamin_LC-B813--1406-A.xml Image courtesy of the Library of Congress Benjamin Butler, a colorful Union general in the Civil War and an advocate for African-American political rights, was also one of President Johnson’s fiercest critics.
As early as 1866, some Radicals, aware that Johnson posed a threat to their Reconstruction plans, entertained the idea of removing the President through the constitutional impeachment process. One of the first was Territories Committee Chairman James M. Ashley of Ohio. Ashley had sponsored the Thirteenth Amendment abolishing slavery, and had been quietly researching impeachment (he was also convinced of a baseless theory that Johnson had conspired to murder Lincoln).21 Another Radical from Ohio, Military Affairs Committee Chairman Robert Schenck, looked into removing Johnson amid the President’s demagogic attacks on the legitimacy of Congress which Schenk believed threatened another civil war.22 Even beyond Capitol Hill, the popular Major General Benjamin F. Butler, at the time a candidate for the House, routinely denounced the President from the stump and called for Johnson’s removal.23

One of the first party-wide discussions on impeachment came in December 1866, as House Republicans met to plan for the end of the 39th Congress (1865–1867) in March 1867. Radical George Boutwell of Massachusetts raised the issue of impeachment during the caucus meeting but moderates, who saw no political benefit, quashed the discussion.24 Later that month Ashley tried to open an impeachment inquiry but was voted down.25 Afterward, seeking to intercept and derail any additional impeachment efforts, moderate Republicans passed a rule that tied the hands of Radicals who wanted Johnson gone. The new rule required both a majority of House Republicans and a majority of the Judiciary Committee to approve any measure having to do with impeachment in party caucus before it could be considered in the House.26

Undeterred, Radicals continued to pursue the issue, finding their way as they went. Before Johnson, the House had impeached five people in total: one U.S. Senator, three district court judges, and one Associate Justice of the Supreme Court. But Johnson was President and there were no blueprints for impeaching a President. On January 7, 1867, two Republicans from Missouri, Benjamin F. Loan and John R. Kelso, introduced impeachment resolutions against Johnson. The House refused to open debate or vote on either one.27

House Press Gallery in March 1868/tiles/non-collection/w/web_reporters_gallery_186803_2007_014_002.xml Collection of the U.S. House of Representatives
About this object
This cover of Harper’s Weekly, published three days into the 40th Congress on March 7, 1868, depicts what the House Press Gallery looked like about the time of Johnson’s impeachment.
That same day, Ashley, ignoring the new rule that required him to win the approval of the Republican caucus, introduced his own impeachment resolution, calling it “a painful but, nevertheless, to me an imperative duty . . . which cannot, without criminality on our part, be neglected.” Ashley’s bill differed from the others by offering a road map. Instead of proceeding to an immediate vote, Ashley’s resolution instructed the Judiciary Committee to investigate the President’s “corruptly used” powers, including Johnson’s political appointments, Confederate pardons, and legislative vetoes.28 Ashley’s bill passed the House 107 to 89, allowing Republicans to register their displeasure with the Johnson without committing to impeachment.29

In the waning days of the 39th Congress, Republicans took two important steps to protect their Reconstruction plans from the President’s wrath. On March 2, 1867, Congress passed the Tenure of Office Act over Johnson’s veto. The law forbade the President from removing executive officials—including high-ranking appointees such as the Secretary of State, the Attorney General, and the Secretaries of War and of the Navy—without the explicit consent of the Senate. It was partly meant to prevent Johnson from installing new Cabinet officials who could effectively undermine Congress by failing or refusing to carry out policies passed by the House and Senate. The Tenure of Office Act required the President to alert Congress if he terminated any appointed official confirmed by the Senate and stated that any violations by the President would be deemed “high misdemeanors” and criminal acts—in other words, potentially impeachable conduct.30 The second crucial development occurred in the Judiciary Committee. Working from Ashley’s impeachment resolution, the Judiciary Committee receded from the public spotlight as it gathered evidence from witnesses in closed sessions. Eventually the committee ran out of time and the 39th Congress came to an end. But the committee had gathered “sufficient testimony” to continue the investigation in the new 40th Congress (1867–1869).31

As Johnson secretly kept tabs on the House impeachment inquiry using the Pinkerton Detective Agency, the 40th Congress opened and the Judiciary Committee picked up the investigation where the previous Congress left off.32 But on June 3, 1867, after months of additional closed-door hearings, the committee voted against any additional action on impeachment. Three moderate Republicans teamed up with the two Democrats on the committee to kill impeachment in a close 5 to 4 vote.33

But events would soon force a reconsideration.

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Footnotes

19Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: W.W. Norton & Company, 1973): 7–16, 82–87; White, The Republic For Which It Stands: 55–56.

20Stephen W. Stathis, Landmark Legislation: 1774–2012: Major U.S. Acts and Treaties, 2nd ed. (Los Angeles: CQ Press, 2014): 118–119; Hans L. Trefousse, Impeachment of a President: Andrew Johnson, the Blacks and Reconstruction (1975; repr., New York: Fordham University Press, 1999): 17–29; Foner, Reconstruction: 228–239; White, The Republic For Which It Stands: 60–61, 83–84.

21Trefousse, Impeachment of a President: 49–50; Foner, Reconstruction: 333; C. Vann Woodward, “The Other Impeachment,” 11 August 1974, New York Times Magazine: 28.

22Trefousse, Impeachment of a President: 53.

23Trefousse, Impeachment of a President: 52.

24Trefousse, Impeachment of a President: 54.

25Congressional Globe, House, 39th Cong., 2nd sess. (17 December 1866): 154; Trefousse, Impeachment of a President: 54.

26Benedict, The Impeachment and Trial of Andrew Johnson: 22–23; Trefousse, Impeachment of a President: 54.

27Congressional Globe, House, 39th Cong., 2nd sess. (7 January 1867): 319–320.

28Congressional Globe, House, 39th Cong., 2nd sess. (7 January 1867): 320–321.

29Trefousse, Impeachment of a President: 55, 58; Melvin I. Urofsky and Paul Finkelman, A March of Liberty: A Constitutional History of the United States, 2nd ed., vol. 1 (New York: Oxford University Press, 2002): 458–459; Benedict, The Impeachment and Trial of Andrew Johnson: 23; David O. Stewart, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy (New York: Simon and Schuster, 2009): 74–75; James M. McPherson, Ordeal by Fire: The Civil War and Reconstruction (New York: Knopf, 1982): 526; J.G. Randall and David Herbert Donald, The Civil War and Reconstruction, 2d ed. (Lexington, KY: Heath, 1969): 601.

30“An Act Regulating the Tenure of Certain Civil Offices,” 14 Stat. 430–432; Foner, Reconstruction: 333.

31Trefousse, Impeachment of a President: 56–57; Randall and Donald, The Civil War and Reconstruction: 601; Stewart, Impeached: 81. For committee rosters in the 39th and 40th Congresses, see David T. Canon, Garrison Nelson, and Charles Stewart III, Committees in the U.S. Congress, 1789–1946, vol. 1 (Washington, DC: CQ Press, 2001): 152.

32Trefousse, Impeachment of a President: 70; Benedict, The Impeachment and Trial of Andrew Johnson: 23; Stewart, Impeached: 83; Albert Castel, The Presidency of Andrew Johnson (Lawrence: University Press of Kansas, 1979): 127.

33Trefousse, Impeachment of a President: 72.