The Time a President Survived Impeachment by a One Vote Margin

The thing about impeachment is that it’s always a political process. This is true both in the pejorative sense (the move to impeach a president only somewhat conforms to the actual severity or lack thereof concerning the wrongdoings for which they are charged) and the literal sense; the decisions to bring a president up for impeachment, and the decision of whether to remove a president from office, are left to the elected members of Congress rather than the judicial branch of government. (The Chief Justice of the Supreme Court, not to feel left out, gets to preside over the proceedings but ultimately doesn’t have a whole lot to do with what the Senate actually decides).  Thus, whether or not Donald Trump is actually impeached (i.e. brought up on charges) likely has as much to do with Nancy Pelosi’s ability to whip her caucus into action (something she has generally been quite good at, although her successful track record is likely bolstered by picking her battles wisely) as with what Trump has done this time around.

Likewise, whether the Senate would actually convict in such a case would, at the moment, be a function of whether some sitting Republicans would be willing to break with the President and with Mitch McConnell (who, let’s face it, would turn a blind eye to Donald Trump ritualistically sacrificing orphaned kittens to the ghost of Joseph Stalin on top of a copy of the Constitution, as long as Trump signed the correct bills into law); something that they’ve so far not shown any inclination towards doing.

Most of us remember, or have read enough about, the last two presidents who were either impeached or close to it.  Nixon resigned before the House got around to almost certainly impeaching him; even though Republicans initially backed him through his Watergate denials and even his firings of the people in charge of investigating the scandal (sound familiar?), they eventually broke with the President once it became clear that he had recorded himself obstructing justice over the investigation into the break-in (to paraphrase Idriss Elba’s best character, The Wire’s Stringer Bell, “Nixon, was you taping notes on a criminal ****ing conspiracy?”).

Bill Clinton, meanwhile, lied under oath (and to the American people, with his carefully-parsed denial of “sexual relations with that woman”), but the substance of what he lied about was viewed by a majority of Americans, and ultimately by enough members of the Senate, as not consequential enough to warrant removal (how this might all play out now in the #MeToo era, in which Monica Lewinsky has sort of re-emerged in a significantly different light, is another question).

The one we tend to forget is the first example, that of President Andrew Johnson (I always want to say Andrew Jackson, but that’s possibly just wishful thinking; if he had been impeached, life would have presumably been significantly better for a number of Americans, especially those indigenous to the continent).  Andrew Johnson, who inherited the Presidency upon Lincoln’s assassination, was not only impeached by the House of Representatives in 1868, but the Senate came one vote short of removing him from office.  The story is an interesting one, and now seems like a good time to look back on it.

(Note: this article largely draws from the account of Johnson’s impeachment posted on the Senate website. Thanks, Senate).

Andrew Johnson, despite being Abe Lincoln’s VP before inheriting the presidency, was not exactly a progressive.  Granted (Civil War pun 1), Abraham “I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races” Lincoln was not quite the enlightened soul we’ve mythologized him to be, but that’s another conversation. But the new President Johnson, a Democrat (Lincoln, a Republican, was trying to foster national unity by having an opposite-party VP) who had been Governor of and then Senator from Tennessee but remained loyal to the Union during the Civil War, soon demonstrated that he didn’t believe in things like “punishing the traitors who rebelled against the Union” or “recognizing that slaves had been royally screwed over and deserved to actually be, you know, citizens.”

And so Johnson attempted to stonewall* (Civil War pun 2; Ok, I’m done) all attempts by the Republican-led Congress to assist freed slaves or establish their citizenship rights during the period of Reconstruction after the Civil War.  The President pardoned a bunch of ex-Confederates,vetoed legislation extending the lifespan of the Freedman’s Bureau (the main agency set up to assist freed ex-slaves economically and socially), and generally fought tooth and nail to limit black freedom and let the South off easy.  Congress eventually had enough, and began passing legislation over the President’s veto, including extending the Freedman’s Bureau and creating the 14th and 15th Amendments to the Constitution, which granted freed blacks citizenship and voting rights, respectively.

Congress also passed the Tenure of Office Act, which required the Senate approve not only of the appointment of Cabinet officials (as was already in the Constitution and remains today) but also the firing of officials. This act was meant to prevent Johnson from replacing holdovers from Lincoln’s Cabinet with new officials who would go easier on the South (which was essentially being occupied by the Union Army, kind of like Iraq was right after Saddam Hussein was deposed). The Tenure of Office Act was therefore part of the larger strategy by the Republican Congress of incorporating African Americans into the country and holding southern states accountable for their revolt. The Act was also, on its face, blatantly unconstitutional.  If the Constitution framers had wanted the Senate to approve of the firing of Cabinet officials, they would have put it somewhere in the document, like maybe next to the part that gave the Senate approval power over Cabinet appointments.

Johnson certainly thought the law was unconstitutional, and just generally didn’t like it. So he decided not to follow it. He provocatively fired Edwin Stanton, the Lincoln holdover Secretary of War (the department wasn’t given the less belligerent name “Defense” until after WWII).  This job was especially important during Reconstruction, which was essentially being run through the War Department governing the occupied South.  Firing Stanton was the last straw for Congress, and the House voted overwhelmingly (126-47) to impeach Johnson.  The legal debate was complicated, drawing in the Attorney General (who resigned his office to defend Johnson) and several of the country’s other top lawyers.

The politics were not so complicated. Congress was essentially pursuing two goals. Substantively, it was attempting to Reconstruct the country in a way that asserted the principles that emerged from the Civil War: national supremacy and African-American citizenship.  Additionally, Congress was also asserting its power over the executive branch, not just in Reconstruction but more generally.  At the end of the trial, the Senate voted separately on three separate Articles of Impeachment; each vote was 35-19 in favor of conviction, one vote short of the 2/3 majority necessary to remove a president for office.  Several Republican Senators, even though opposed to Johnson, ultimately voted to acquit. Said one of them: “I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable president.” Yes, this was a time when the Republican Party was not the party that pandered to racists AND a time in which several Republicans put protecting the Constitution ahead of their immediate political desires vis-à-vis the President. So, history.

Johnson survived, but became a one-term president after he failed to win his party’s nomination, and returned to the Senate after his term was up.  (As a final gesture towards the South before leaving the presidency, he issued a blanket Christmas Day 1868 pardon for all Confederate soldiers). Radical Reconstruction actually gave black people in the South a shot at achieving the American Dream and becoming real parts of this country (for a few years, until black freedom in the South was essentially negotiated away in a deal between Republicans and Democrats after the disputed presidential election of 1876).

And so, Andrew Johnson remains the President who came closest to actually being removed from office through impeachment, a feat that has yet to be accomplished. Donald Trump may take some solace in this fact (and, more importantly for him, in the still solid support that the Republican Party has been giving him).  Still, Trump’s whole political career has been about achieving unprecedented feats, even if removal from office is not the one he wants to accomplish last.

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