Impeached but Not Removed, March to May 1868
The Senate delayed Johnson’s impeachment trial for nearly a month while the President assembled a team of lawyers—including, remarkably, the U.S. Attorney General, Henry Stanbery, who resigned his post to devote his full attention to Johnson’s defense.78
By the time House managers made their opening statements on March 30, 1868, the Senate trial verged on a circus. Newspaper coverage was unremitting and intense public interest generated a crush for access. To control the flow of visitors to the galleries, the Senate printed 1,000 tickets to distribute each day of the trial.79
With Benjamin Butler set to open the case against the President, the crowded Senate Chamber prepared for a fiery and impudent opening statement. When Butler rose to begin his remarks at 12:45 p.m., “the galleries became hushed into breathless silence,” wrote one reporter. “Senators and Representatives leaned forward in their seats, anxious to hear every syllable of his exordium.”80 Instead, Butler, clutching a large sheaf of papers, opened with a sober, lengthy legal disquisition filled with precedents, citations, and generous quotations from dry legal commentaries.81
In the month since the House impeached Johnson, strong public headwinds had blown up in opposition, partly explaining Butler’s initial caution. A shared outrage over Johnson’s decision to fire Stanton the previous month had made the coalition of Radicals and moderates possible. But as emotions cooled, the House impeachment managers realized the best chance they had to remove the President was to convince a group of moderate Senators that Johnson’s trespasses against the Tenure of Office Act violated the law. Of all the House articles, Butler’s article 10, the sole politically-based charge that called out the President’s contempt and derision of Congress, had been hurt the most by the passage of time.82
But moderation and self-control were not Butler’s hallmarks. And as the Massachusetts firebrand drew toward the conclusion of his speech, he finally let loose, thundering that Johnson was “the elect of an assassin,” not the American people. That only “by a foul murder” did he become President, and therefore carried little legitimacy.83
After Butler’s uneven opening speech, the House managers waged an unconvincing prosecution over the course of the two-month trial in the Senate. Johnson also seemed to change his tune. Rather than lash out as he had in the past, the President suddenly turned quiet.84 He also opened various channels to Senators and made it clear that he was willing to parlay for their votes.85
The President’s most dogged Senate opponents managed to force a vote on three of the 11 articles of impeachment, convinced that those three offered the best chance for conviction.86 Proceedings reached a climax on May 16, 1868, as the first of the articles—Article 11—came to a vote. In order to remove the President, the Senate only needed to convict Johnson on one article, but it required a two-thirds majority to do so: 36 of the 54 Senators needed to vote in favor. Article 11 received 35 votes, one vote shy of the constitutional requirement for removal. Nineteen Senators voted against, including Johnson’s son-in-law Senator David Patterson of Tennessee.87 Seven moderate Republican Senators, dubbed “Recusants,” had joined Democrats and Unionists to acquit Johnson. After a 10-day recess, during which the Republican National Convention nominated Ulysses S. Grant for President and House Speaker Schuyler Colfax for Vice President, the Senate voted on the other two articles. Both pertained to the Tenure of Office Act and the President’s removal of Stanton and appointment of Lorenzo Thomas as Secretary of War without Senate approval on February 21, 1868. Once again, Johnson was acquitted by one vote, 35 to 19, on both articles. No Senator had changed his previous vote. At that point, the Senate ended the impeachment proceedings.88
Senator James Grimes of Iowa was one of the seven Republicans who had voted against removing Johnson. Before the vote, Grimes had extracted a pledge from Johnson that if the Senate acquitted him the President would tone down his actions. And it was Grimes who seemed to best capture the moderates’ rationale for keeping Johnson in power: simply put, they feared that such an action might irrevocably weaken the presidency. Grimes believed the House had falsely assumed the total supremacy of Congress over the other branches of government. “I cannot agree to destroy the harmonious working of the Constitution,” Grimes said, “for the sake of getting rid of an Unacceptable President.”89
78U.S. Senate Historical Office, “The Senate Votes on Presidential Impeachment,” accessed on 13 August 2019, https://www.senate.gov/artandhistory/history/minute/The_Senate_Votes_on_a_Presidential_Impeachment.htm.
79U.S. Senate Historical Office, “The Senate Votes on Presidential Impeachment.”
80“The Impeachment Trial: The Managers’ Argument,” 31 March 1868, New York Tribune: 1.
81Randall and Donald, The Civil War and Reconstruction: 610; Trefousse, Impeachment of a President: 153–154; Stewart, Impeached: 194–196.
82Foner, Reconstruction: 334–335.
83“The Impeachment Trial: The Managers’ Argument.” Variations on Butler’s speech may be found in Randall and Donald, The Civil War and Reconstruction: 610; Trefousse, Impeachment of a President: 154.
84Stewart, Impeached: 164.
85Trefousse, The Impeachment of a President: 157–159, 163; Stewart, Impeached: 223–227.
86U.S. Senate Historical Office, “The Senate Votes on Presidential Impeachment.”
87The vote in the Senate may have been closer than it otherwise seemed: among those voting “guilty” were a handful of Republican moderates who reportedly would have changed their vote to make sure the President was not removed from office. See Urofsky and Finkelman, A March of Liberty: 463–464.
88Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, vol. 1, 7th ed. (New York: Norton, 1991): 345; Urofsky and Finkelman, A March of Liberty: 464.
89U.S. Senate Historical Office, “The Senate Votes on Presidential Impeachment.” See also Trefousse, Impeachment of a President: 157–159, 178.