Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy (19 page)

The president turned to advisers and began to listen to them. Johnson looked first to Attorney General Stanberry, who was designated lead counsel for the defense. The president also consulted with Jeremiah Black, longtime Democratic power in Pennsylvania and a fixture in Buchanan’s Cabinet. An important early recruit to the defense team was former Supreme Court Justice Benjamin Curtis, who contributed stature and unquestioned legal skills. Curtis brought political assets, as well. He was a Boston Republican, though a conservative one, and had dissented from the hateful
Dred Scott
ruling, which had helped precipitate the Civil War.

Surveying the field before them, Johnson’s team faced daunting challenges. The Republican majority in the Senate was overwhelming. Of the 54 senators, only 9 were Democrats. The Democrats could be counted on to oppose impeachment even if they did not care for Johnson. Three Republican senators consistently voted for Johnson’s policies and were solid for him. That made 12 votes for the defense. To avoid conviction by a two-thirds majority, Johnson needed 19 votes, so he had to win over 7 more Republicans. That number—7 Republicans—would dominate impeachment strategies, press speculation, and backroom maneuvering.

At this early stage, an aide proposed that the president use his power over patronage to secure support from individual senators. Johnson was irate. “I will do nothing of the kind,” he stormed. “If acquitted, I will not owe it to bribery. I would rather be convicted than buy acquittal.” He would change his mind on that point.

Changes also loomed on the prosecution side. Stevens could take pride in having finally, on his third try, steered a presidential impeachment through the House. No other man had done that. But the Pennsylvanian had reached his limit. He might rally his dwindling powers to deliver a speech for twenty minutes, but he could not manage a grueling, weeks-long trial. He was too weak and too sick. The voting for the seven House managers, which nearly omitted him entirely, recognized this reality. Of the impeachment articles, only the last one (Article XI) reflected Stevens’s views. He might still contribute insights and stratagems. He could be the living, barely breathing symbol of Radical virtue, and of Radical vengeance. But younger men would have to do the hard work. Who would do it? Could someone, or a team of two or three, make up for the loss of Stevens’s leadership?

For the next ten weeks, the national government largely stopped functioning as its officials and workers were transfixed by the inexorable impeachment process. “Nothing is being done because of impeachment,” the
New York Times
reported from Washington City. “Nothing else is noticeable; neither the price of coal, nor the budding of the crocuses in the Capitol Grounds, nor the coming of Arkansas quietly back into the fold of the Union.” In Philadelphia and Cincinnati, in New York and Chester County, Pennsylvania, marchers demonstrated in support of the president or of Congress.

Yet Americans were learning to live with the prospect that the president would be ejected and replaced by Ben Wade of Ohio. The nation’s financial market, which involved mostly trading between gold and currency in New York, was reasonably stable. There was room on the front pages for news of a fire in New York that consumed most of the animals in P. T. Barnum’s circus; survivors included an elephant, a giraffe, a leopard, and a kangaroo.

Mrs. Mary Logan, wife of the House manager from Illinois, remembered Washington’s winter of 1868 as socially brilliant. The president’s daughters mounted fine events at the White House. Through the week when the House was impeaching him, Johnson presided over a dinner for senators, another for Supreme Court justices, and greeted guests at receptions. Ben Butler staged the party of the season for the debut of his daughter, Blanche, in his mansion at the corner of I and 15th streets. Decorated with thousands of delicate camellias, Butler’s house filled up with everyone of distinction. Wherever society met, Mrs. Logan recalled, “General and Mrs. Grant were the recipients of much attention.”

Charles Dickens’s speaking tour reached Washington in early February. The novelist spent an entire evening with Senator Charles Sumner of Massachusetts and Edwin Stanton (before he locked himself in his office). The war secretary, ever the pedant, regaled Dickens by reciting from memory long passages from
The Pickwick Papers
.

By early March, fears had receded of armed battles in the streets. The nation would allow the impeachment process to proceed, to perform its intended function as a peaceful means for deciding whether to remove a bad president. A sure sign of reduced tensions was Stanton’s appearance on the sidewalk in front of the War Department, unguarded, consulting with a subordinate. His continuing occupation of that building required a critical adjustment, since President Johnson refused to have any contact with him, or with General Grant. The faithful assistant adjutant general, Edward Townsend, became the “neutral ground” for the three sulking principals: Each sent his orders to Townsend, he recalled, “and by a little tact I managed to avoid any question of jurisdiction or other difficulty.” As for the reports that Stanton and Grant ordinarily would have sent to Johnson, those went to Congress instead. Such rickety communication links might not have served in a military crisis, but they held up for the next three months.

Senate President Pro Tem Ben Wade, faced with the possibility of moving into the Executive Mansion in a matter of weeks, was in an awkward spot. The press speculated on the members of his Cabinet, while office-seekers laid siege to him. He was widely mentioned as a possible running mate with General Grant in the fall. In an early newspaper interview, he tried to avoid unseemly eagerness for the presidency, insisting, “I do not covet the position.” Yet the specter of Wade in the White House, a ripsnorting Radical as chief executive, would figure prominently in the outcome of the trial.

Wade’s future, and that of the nation, now lay in the hands of the fifty-four men of the Senate. And, of course, in the hands of the lawyers who would wage the impeachment battle and the political operatives who would use every tool at their disposal to influence the verdict.

We are all nervous about delay in the impeachment case. That is the overshadowing all-absorbing question with the country just now. Like an aching tooth, everyone is impatient to have the old man out.

J
OSEPH
M
EDILL
,
C
HICAGO
T
RIBUNE
, M
ARCH
18, 1869

T
HE TEAM OF
House managers boasted deep legal talent and wide experience. Stevens had defended fifty murder cases and claimed he lost only one. Ben Butler was a feared courtroom advocate with an extensive criminal practice. He had argued (and lost) the leading Supreme Court case on the military’s wartime powers to detain civilians. John Bingham led the 1862 impeachment of Judge West Humphreys, the court-martial of the Army’s surgeon general, and the prosecution of the Booth conspirators. Wilson and Boutwell were intelligent lawyers. Williams and Logan were determined ones who accepted their supporting roles. Yet when it came time for the team of House managers to perform, the whole proved to be far less than the sum of its parts. They made a hash of the most important case of the nineteenth century.

Building a team of trial lawyers is no easy task. Courtroom advocates have strong personalities, healthy self-esteem, and an affection for speaking at length. Balancing robust egos requires tact, judgment, and leadership. Only one singer can perform each aria, and each show can feature only so many lead singers. The balancing act grows more challenging when the lawyers are also politicians with long habits of self-promotion and interpersonal manipulation. Indeed, there is something odd about confiding a critical prosecution to congressmen rather than to professional advocates, though doing so underscores the political nature of impeachment.

Of the managers, only Stevens could have led the team effectively. As the emotional heart of the quest to be rid of Andrew Johnson, Stevens could have commanded the senators’ respect. As an acute strategist who understood how weak Johnson was politically, he could have pressed for a streamlined case and an early vote. But Stevens was too frail. He missed meetings of the committee managers, while the press continued its ghoulish reports on his cadaverlike appearance. Visibly clinging to life, he could not prosecute the case he cared more about than anything else on earth.

For all the talents of the House managers, none could effectively take over for Stevens. Bingham was too waspish. Boutwell was too aloof. And Butler—well, Butler became the lead prosecutor so the failure fell mostly on his bullish frame.

The managers’ failures were not due to lack of effort. Within three days of delivering the impeachment articles to the Senate, they were taking testimony in closed session. In the first week, they heard twelve witnesses. With Butler posing most of the questions, they heard from twelve more witnesses before the trial began at the end of March. The effort was largely misplaced. But for Lorenzo Thomas, the witnesses were peripheral or routine. The committee heard from stenographers who recorded the president’s public tirades in 1866. They asked a Western Union official about the president’s telegrams. Clerks explained the paperwork for the Stanton firing. The managers quizzed Colonel Moore, the president’s closest aide, but mostly asked him whether Thomas was performing any functions as secretary of war, not a central question for the impeachment. Even with Stanton offering ideas and assistance from his pied-à-terre at the War Department, the fact-gathering was not particularly productive.

After being summoned to the committee room as a witness, a news paper reporter sketched a peculiar portrait of the managers. Stevens sat with his club foot resting on a table before him, his eyes closed and his brown wig askew. Butler stood before a fire, studying a sheaf of papers and smoking furiously. Bingham, Boutwell, Williams, and Wilson, immersed in law books, each occupied one side of a table. And so they all remained, silently, for ten minutes.

The House managers (seated, l. to r., Ben Butler of Massachusetts, Thaddeus Stevens and Thomas Williams of Pennsylvania, John Bingham of Ohio; standing, James Wilson of Iowa, George Boutwell of Massachusetts, John Logan of Illinois).

Without opening his eyes, Stevens posed a languid question about a recent letter from Chief Justice Salmon P. Chase, who was presiding over the trial. After a minute passed without a response, Stevens directed the question to Wilson. The Iowan briefly disparaged Chase’s missive. Stevens called the chief justice “a damned political trickster,” then recounted a tale from the beginning of the Civil War, when Chase argued that the North should let the Southern states secede without a fight. Distracted from their studies, the other managers joined a general discussion of Chase’s qualities.

The managers did not spend all their time together in the committee room. They had other political interests. As chairman of the Reconstruction Committee, Stevens pushed through a bill to set the terms for readmitting Alabama as a state, then released a public letter announcing that the Declaration of Independence contemplated Negro suffrage. Butler issued a lengthy statement on how the nation’s heavy war debts should be repaid.

By sheer energy and industry, Butler seized leadership of the group. The burly, cockeyed former Democrat, whose charisma somehow overcame his mismatched features, was an outrageous, polarizing figure. “No man in the broad land,” observed one of the few female correspondents of the day, “is so fearfully hated.” A Shakespearian denunciation chastised Butler as

General Ben Butler during the Civil War.

Even Butler’s enemies admitted his substantial gifts, including a powerful speaking style and a fearlessness that resembled audacity. He was quick in debate, well read, and could be disciplined in his reasoning. Perhaps as important, he had a capacity for hard work.

Butler proposed which witnesses should be summoned, dominated their questioning, and set the managers’ agenda. He handled his colleagues with finesse. When Bingham demanded to be chairman of the committee, Butler kept his head down. He was after power, not titles. Then Butler angled to make the trial’s opening speech. He suggested that the chore usually descended upon the “youngest counsel, and that is myself.” His colleagues fell for it.

Early on, Butler made two contradictory judgments about the prosecution strategy. First, he proposed to try the case at “railroad speed,” taking advantage of then modern technology (railroads and telegrams) to assemble and present the case quickly. When the defense asked for forty days to prepare for trial, Butler scoffed that the flood destroyed the world in that time. The national crisis required a speedy trial to remove the president. Also, a relaxed pace might provide too much time for second thoughts, especially as the natural end of Johnson’s term drew ever closer.

Butler’s commitment to railroad speed was thwarted, however, by his second strategic decision. For a short time, the managers dithered over the tone to strike before the Senate. They were unsure of the proofs that would be required in this unique form of trial. Butler resolved to try the case “upon the same rules of evidence, and in the same manner as I would try a horse case”—that is, a case of horse-stealing. And so he did, putting on a display of pettifoggery that reflected the range of technical arcana that prevailed in nineteenth-century courts. Butler haggled over every jot and tittle of proof. He badgered witnesses, belittled opposing counsel, and made himself the central figure of most trial days. It was a blunder, extending the trial and alienating moderate and conservative Republicans whose votes he needed.

THE TRIAL TEAMS

The House Managers (Prosecutors)

The Defense Lawyers

The president built his defense team incrementally, starting with the sixty-five-year-old attorney general, Henry Stanberry. Having spent most of his life in southern Ohio and Kentucky, the tall, lanky Stanberry came to Washington in 1866 to serve as Butler’s co-counsel in the Supreme Court dispute over the powers of military commissions. Though he lost the case, Stanberry impressed the president, who wanted to appoint him to the Supreme Court. In eighteen months as attorney general, Stanberry earned Johnson’s confidence. He resigned that post on March 11 to stifle any grumbling that he could not faithfully serve both as attorney general and as the president’s chief defender.

As lobbyist Sam Ward had recommended, the defense team reflected political balance as well as legal acumen. Former Justice Curtis and Stanberry were Republicans. Jeremiah Black was a Democrat. Two more Democrats were signed up: William Groesbeck of Ohio and Thomas Nelson of Tennessee, a familiar face from the president’s home state. The last lawyer to join the team, Republican William Evarts of New York, would prove the most important one, even though there was disagreement over whether to add him at all.

The defenders faced formidable challenges. In a very short time, they had to master the legal arguments surrounding impeachment and to anticipate the prosecution’s factual presentation. Fortunately for them, the managers announced most of their strategies through the newspapers, so there would be few surprises at trial. The president’s lawyers also needed to get control over their client. Johnson could damage his own case more than anyone else could. Every public statement and action posed risks, and the headstrong Johnson had a long track record of unwise public utterances. For a defense lawyer, few terrors rival those posed by a client who likes to swap stories with newspaper reporters into the night.

Sure enough, on the evening of March 9 the president unburdened himself to a favored reporter from the Democratic
New York World
. Insisting that he was unfazed by the impeachment effort and labeling Stanton “a marplot in this administration,” Johnson unveiled a detailed defense that included precedents from the days of John Adams. He noted bitterly that he was facing trial in the Senate, but former Confederate President Jefferson Davis still had not been tried for treason. On the very next day, Stanberry made his first demand on his client. The newspaper interviews had to stop. Those conversations, the lawyer insisted, “injure your case and embarrass your counsel.” Taken aback, Johnson attempted an apology. No one in the room supported him. All had gnashed their teeth over the president’s nocturnal conversations with the press. One Cabinet member called them “unaccountable and inexcusable.”