The Case for Impeachment, December 1867
On December 5, just days after Johnson’s scathing message, the House brought the Judiciary Committee’s impeachment recommendation to the floor for consideration. Journalists and visitors packed the galleries while Senators interrupted their deliberations to watch proceedings from the rear of the House Chamber.42
Although Thomas Williams had authored the report, Radicals on the Judiciary Committee asked George Boutwell to make the case for impeachment before the full House.43 Boutwell’s legal analysis did not disappoint. For more than four hours, in a speech that stretched over two legislative days—and was later described by historian Michael Les Benedict as “the clearest, most eloquent, and most convincing argument for the liberal view of the impeachment power”—Boutwell articulated the need for a broad interpretation of those powers and cut the legs out from under the doctrine that impeachment required a clear violation of the law before it could be applied.44 Impeachment, he said, pointing to British precedent as well as debates from the Constitutional Convention, was meant to be applied in instances when the public trust had been violated, when an officer refused to “faithfully execute the Office.” It was not enough to wait for the next election to turn out an unfit President.45
Johnson’s misdeeds were flagrant, Boutwell argued. They walked right up to the line of criminality by subverting or refusing to uphold the law, and were clearly impeachable: Johnson vetoed the Reconstruction Acts which Congress had passed overwhelmingly; he urged the southern states under federal control to refuse to ratify the Fourteenth Amendment; he created unauthorized provisional governorships; and he appointed provisional governors who were ineligible to take the official loyalty oath because of their participation in the Confederate rebellion.46
“To this House is given under the Constitution the sole power of impeachment; and this power of impeachment furnishes the only means by which we can secure the execution of the laws,” Boutwell intoned. “And those of our fellow-citizens who desire the administration of the law ought to sustain this House while it executes the great law which is in its hands and which is nowhere else, while it is performing a high and solemn duty resting upon it by which that man who has been the chief violator of the law shall be removed, and without which there can be no execution of the law anywhere. . . . If we neglect or refuse to use our powers when the case arises demanding decisive action, the Government ceases to be a Government of laws and becomes a Government of men.”47
When Boutwell finished speaking, Judiciary Chairman James F. Wilson took the floor to defend the proposition that only express violations of the law were impeachable.48 He challenged Boutwell’s assertion that the House alone determined the nature of an impeachable offense. Much as Johnson was the “worst of Presidents,” his opposition to Republican policy was not illegal, Wilson said.49
Wilson feared that by interpreting its impeachment powers broadly, as Boutwell wanted, the House could, in theory, dictate policy to future Presidents.50 Boutwell had framed part of his argument around the idea that impeachment could be used as a tool to prevent Johnson from interfering in the southern states during the 1868 presidential election, specifically the fear that Johnson would suppress African-American voters. But by this logic, Wilson asked, would the House impeach the President for what he might do? “This would lead us even beyond the conscience of this House,” Wilson warned. In his closing remarks, he asked, “If we cannot arraign the President for a specific crime for what are we to proceed against him?”51
Ultimately, Wilson’s argument won. On December 7 the House voted against impeachment, 108 to 57. Sixty-six Republicans and 42 Democrats had decided that Johnson’s actions did not meet their threshold for what constituted “high Crimes and Misdemeanors.52
“You will see how Congress backed down on impeachment & can guess the effect of it on the whole of the South followed by such a message as the last,” lamented Representative George Julian, a Radical Republican from Indiana who enthusiastically supported impeachment. “It is pitiful.”53
In the press, a National Intelligencer headline declared, “The Death of Impeachment.”54 Radicals in the House feared that Johnson had slipped through their fingers.
42Benedict, The Impeachment and Trial of Andrew Johnson: 73; Trefousse, The Impeachment of a President: 108; Stewart, Impeached: 108.
43Stewart, Impeached: 108–109.
44Benedict, The Impeachment and Trial of Andrew Johnson: 77. For Boutwell’s full address, which spanned two days, see Congressional Globe, Appendix, 40th Cong., 2nd sess. (5 and 6 December 1867): 54–62.
45Stewart, Impeached: 109–110.
46Benedict, The Impeachment and Trial of Andrew Johnson: 77–78.
47Congressional Globe, Appendix, House, 40th Cong., 1st sess. (6 December 1867): 62.
48For Wilson’s full speech, see Congressional Globe, Appendix, House, 40th Cong., 1st sess. (6 December 1867): 62–65.
49Congressional Globe, Appendix, House, 40th Cong., 2nd sess. (6 December 1867): 64; Trefousse, The Impeachment of a President: 112.
50Benedict, The Impeachment and Trial of Andrew Johnson: 79.
51Congressional Globe, Appendix, House, 40th Cong., 1st sess. (6 December 1867): 65; Benedict, The Impeachment and Trial of Andrew Johnson: 80; Stewart, Impeached: 110–111.
52Castel, The Presidency of Andrew Johnson: 154; Trefousse, however, puts the number of Republicans rejecting the report at 68. See, Trefousse, The Impeachment of a President: 112.
53Trefousse, The Impeachment of a President: 113.
54Castel, The Presidency of Andrew Johnson: 154.