To Impeach a President, the Hard Road and Why You Cannot Rely Upon It

By October 15, 2018Blog, Eddie Hobbs

The White House

Peer beyond the smoke of bipartisan political theatre and there rests in Article One of the US Constitution powers to remove a President, put there by the founding fathers, sensitive to the risk of high office holders damaging the fledgling Republic. The provisions were set by them understanding the risks from the excesses and tyranny of power if improperly deployed – whether by Republicans or Monarchs.

It is why they built a model which divided powers and responsibilities and imbued it with a process to cleanse itself when required; but the test of impeachment is very high, and no sitting President has ever successfully been impeached. One came within a whisker, Andrew Johnson in 1868, and another resigned before he was impeached, Presidential Richard Nixon in 1974. Nixon resigned within days of the House of Representative’s decision to impeach him on three articles following a five-month investigation by its Judiciary Committee: obstruction of justice, abuse of power, and contempt of Congress.

The impeachment of President Bill Clinton was not a close-run thing. He faced two charges, one of perjury, the other about obstruction of justice, but was acquitted by the Senate on 12th February 1999 in an even split on the two charges, falling considerably short of the two-thirds majority required. Nineteen Federal officials, mostly judges, have faced impeachment, eight have been convicted.

Presidential impeachment is a political process, plain and simple. It is expecting too much of rival political tribes to act with the same independence as the Judiciary, nevertheless it is a route towards removing a President or at the least distracting the President into mounting a defence against the charges.

Depending on the outcome of the Robert Mueller investigation and the political results of the midterm elections in November 2018, the 45th President, Donald Trump, may face articles of impeachment. So, what has happened in the past and what, if any, parallels arise today?

Here we look back on the impeachment of Presidents Andrew Johnson and Richard Nixon, set against events at the time.

Civil War aftermath

The US Civil War – 12th April 1861 to 9th May 1865 – lasted four years, three weeks and six days. It was a conflict of unprecedented violence that killed an estimated 750,000 soldiers across hundreds of engagements. The ferocity of the conflict and its legacy is little understood in Europe and Asia, given what was to follow, but no understanding of the USA can be complete without grasping what happened. The secession of Southern states and the establishment of the Confederacy, headquartered in Richmond, Virginia, was the outcome of an unresolved conflict between State rights and the Federal Government, between two different economic models – the agrarian and rural South, built on slavery and where 400,000 white families owned 4 million slaves, and industrial and urban North, extending ever westward across the vast interior to the West coast of the United States.

It was the first modern war, fought by two volunteer armies, moving about on railroads using artillery, muskets and rifles vastly improved since the days of Napoleon but deploying Napoleonic tactics of massed infantry charges and concentrated firepower. The result on the battlefield was a carnage never seen before and horrendous battlefield surgery and disease.

Successful on the battlefield, notably achieving remarkable victories at Fredericksburg (December 1862) and Chancellorsville (April 1863), the Confederate army under Robert E Lee invaded the North for the second time, reaching its high-water mark near a sleepy village in Maryland northwest of Washington. Heavy defeat over three days at Gettysburg in July 1863, together with the fall of Vicksburg the key position on the Mississippi, put the Confederacy on the defensive. Lincoln’s appointment of Ulysses S Grant, the hero of Vicksburg, to overall field command of Union forces, paved the way to the beginning of the end of the war.

Grant, together with General William Tecumseh Sherman, perceived that total war on every front – forcing the South into submission by attacking its sources of supply, its lands, cities, infrastructure and materials – was the only route to victory. This was a new kind of warfare, razing houses, factories and stores to the ground, crushing bridges and railways, blockading ports and starving the population, deprived its armies of support to force submission.

Grant attacked through Virginia, laying siege to Richmond and Petersburg, its rail hub to the South, but at an enormous cost in battlefield casualties as the Army of the Potomac attacked through the carefully constructed killing boxes in front of trench networks. The war teetered on the brink, the North weary of its huge costs in human lives, the resilient South hanging in, expecting Lincoln to be unseated in the Presidential election of 1864 and to be replaced by a peace Democrat. But the fall of Atlanta to General Sherman on July 22nd and the capture of Mobile Bay, Alabama, by Admiral Farragut on 5th August bolstered Lincoln’s campaign. The President would go on to achieve a landslide victory in the November election while Sherman marched across Georgia to the sea, laying waste to vast Confederate lands, infrastructure, railways, bridges and plantations, impoverishing the South while cutting it in two after burning its commercial centre, Atlanta.

By the time the US Civil War ended after the surrender of Lee’s starving army at Appomattox Courthouse on 9th April 1865, the South had been laid to waste. Many of its young men lay dead, maimed or wounded, its currency incinerated by inflation, its food supplies sparse, its Government collapsed and its slave-based economy in ruins. To suggest that Americans have never tasted the bitter fruit of defeat in war is to ignore the legacy of hatred from the crushing defeat suffered by a large part of its population at the hands of fellow Americans.

It is a legacy that survives to this day, evidenced most recently at Charlottesville, Virginia, in August 2017 and the marked reluctance of President Trump to denounce white supremacists, opting instead to spread the blame for the violence ‘on many sides’. Although President Trump backtracked on his initial comments after facing a barrage of criticism including from the Republican Party, according to Woodward he later railed to his staff secretary Rob Porter:

That was the biggest fucking mistake I’ve made. You never make those concessions. You never apologise. I didn’t do anything wrong in the first place. Why look weak?”

In the Presidential election of November 1864, Lincoln chose a War Democrat, Andrew Johnson as his running mate under the banner of the National Union Party. Never elected by the people as President, the former military Governor of Tennessee and the only Senator from a secessionist State to opt for the Union, Andrew Johnson at age 57 was sworn in as President within three hours of Lincoln’s death following his assassination by John Wilkes Booth on 14th April 1865. It was a shock to Johnson and to many in Washington given that a few weeks before on 4th March he’d delivered a rambling speech before Lincoln’s second inauguration address.

Looking over the horizon of his second term, Lincoln carefully crafted his words to deal with the tension between the emancipation of the slaves and the need for reconciliation. During Lincoln’s speech, it is likely that Andrew Johnson was still drunk from a celebration the night before. Lincoln plotted the course of the Reconstruction policy he intended to mark his second period in office:

Fellow Countrymen;

At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war — seeking to dissolve the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease.

Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes. Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!

If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him?

Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord, are true and righteous altogether.”

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan — to do all which may achieve and cherish a just and a lasting peace, among ourselves, and with all nations.

It is arguable who could have adequately followed in Lincoln’s footsteps or handled reconstruction as he might have, had he lived. The contrast between the dead President and his successor added to the passions swirling about the Republican-dominated Congress about how the South ought to be treated and led to the impeachment of Andrew Johnson, after a bitter struggle with the Executive and Legislative branches.

Andrew Johnson, 17th President, 15th April 1865 – 4th March 1869

Johnson did not come from a privileged Southern background. He was born in Raleigh, North Carolina, to a relatively poor family, his father died young when Johnson was age three after which his mother worked as a washerwoman. After failing to buy out his apprenticeship as a tailor, the young man left North Carolina and eventually settled in Greenville, Tennessee, where he set up a tailoring enterprise and at age 18 married the daughter of a local shoemaker, Eliza McCardle, to whom he would stay married for 50 years.

Johnson began his political career in 1834 as mayor of Greenville, from which he wound his way through both houses of the state legislature, elected to national Congress in 1843 and advocating as an anti-abolitionist that private property including slaves could not be alienated by any action of State or Federal government. After a spell as Governor of Tennessee, Johnson was elected as a US Senator, taking his seat in December 1857 as the political cauldron bubbled towards secession and Civil War. It came to the boil in October 1859 when abolitionist John Brown attacked the Federal arsenal at Harpers Ferry in Virginia hoping to ignite a slave revolt.

Brown was arrested by forces led by Robert E Lee, tried by a jury in nearby Charles Town and, after drawing national and international attention, was hanged at 11 am on 2nd December surrounded by 2,000 troops. John Brown became the martyr, he’d hoped to be to the cause of slave freedom. Brown’s actions amplified growing tensions between pro and anti-slavery factions, prompting Johnson to warn on the floor of the Senate that slave freedom would threaten the Union and that the phrase in the Constitution that all men are created equal did not apply to African Americans.

This distinction, which later saw Johnson reluctantly support Lincoln’s Emancipation to save the Union, would create a legacy that lasted a hundred years, up to the civil rights movement in the 1950s and 60s. Johnson believed that African Americans were a subspecies unworthy of the same civil rights as whites. It was a belief that allowed him to ignore the menace of the Black Codes which would indenture and suppress former slaves after the Civil War across the Southern States whose legislatures Johnston believed had exclusive jurisdiction on the matter. His failure on this point would foment the infamous John Crowe rules that segregated and suppressed African Americans for decades, creating apartheid conditions across the former Confederacy.

As secessionist momentum grew following the election of Lincoln, Johnson argued forcibly for the preservation of the Union and became the only Senator who did not resign his seat when his state, Tennessee, seceded from the Union. He was rewarded by Lincoln in March 1862 with military Governorship of Tennessee, a state that would be contested between Confederate and Union forces for much of the remainder of the conflict, culminating in the shattering of Confederate forces at Nashville in mid December 1864, leading to the resignation of CSA General John Bell Hood a few weeks later.

By mid-1864, Lincoln was planning his re-election as President, a remarkable test of US democracy in the middle of an existential war that looked deadlocked. Lincoln calculated that adding a pro-Union Democrat to his ticket would help counter the growing voices seeking to negotiate a settlement with the South and ran his campaign under the banner of the National Union Party. Both men, Lincoln and Johnson, got little chance to work together as President and Vice President because on the night of their first meeting after the inauguration on 4th March, Lincoln was shot.

To President Andrew Johnson, the issue of the basic civil rights including the right to vote for African Americans was not a Federal matter but a matter for individual States, an attitude that encouraged Southern states to pass Black Codes that indentured African Americans, doing little to stop the reestablishment of former Confederate officers to State office. Johnson was a racist, but so too were many North and South. However, notwithstanding his personal views, he did not deploy Federal forces to challenge the growing power of white terror organisations like the KKK which, founded in Tennessee and containing demobilised CSA officers and men, had the singular objective of terrorizing African Americans.

Matters came to the boil in New Orleans at a convention called to resist Black Codes when a group of armed whites attacked African American marchers, many of them seeking refuge in the Mechanics Institute. Ron Chernow in his 2017 seminal biography on Grant, who was outraged by the wanton savagery towards freed slaves, reported from an eyewitness:

“The whites stomped, kicked, and clubbed the black marchers mercilessly. Policemen smashed the institute’s windows and fired into it indiscriminately until the floor grew slick with blood. They emptied their revolvers on the convention delegates, who desperately sought to escape. Some leapt from windows and were shot dead when they landed. Those lying wounded on the ground were stabbed repeatedly, their skulls bashed in with brickbats. The sadism was so wanton that men who kneeled and prayed for mercy were killed instantly, while dead bodies were stabbed and mutilated.”

No one knows how many men, women and children were slaughtered by Southern whites outraged that their property – freed slaves – might be afforded civil rights equivalent to themselves, especially including the right to vote, thus altering the balance of power in what remained of the old Southern establishment. Data for lynchings, which became popular sources of entertainment across many parts of the South, recorded nearly 5,000 nationally up to the 1950s, two-thirds of whom were African Americans murdered by mobs without trial in the South.

Johnson further drew criticism from moderate Republicans for vetoing the first Civil Rights bill granting citizenship to freedmen in 11 of the 36 states of the Union. It was the pivot in his Presidency, setting up a feud with Congress.

By the midterm elections in 1866, Johnson’s standoff with Congress had worsened. He wished to restore States to the Union by Presidential power, Congress by ensuring protection for African Americans. In a parallel to Trump today, Johnson embarked on the infamous ‘Swing Tour’, a series of public speeches in the North that deteriorated into vitriol as the President tackled hecklers, bringing, in the eyes of many, the office of President into disrepute. Despite the Republican victory in the midterms of November 1866, President Johnson did not relent in his battle with Congress, which deepened as Congress began passing legislation despite Presidential veto. Matters were coming to a head and reached the boil on 2nd March 1867, when Congress passed the Tenure of Office Act designed to prevent the President from firing cabinet secretaries.

Johnson’s decision to fire Secretary of War, Edwin Stanton, brought on the crisis as Stanton refused to vacate his office and on 24th February 1868 the House impeached the President for challenging the legitimacy of Congress by violating the Tenure of Office Act, the constitutional grounds for which were uncertain.

Johnson’s impeachment trial in the Senate on 11 articles of impeachment lasted three months, beginning on 5th March, during which Johnson manoeuvred for acquittal using political deals with moderate Republicans. On 26th May, he won by a single vote – 35 Senators voting him guilty and 19 not guilty to violating the Tenure of Office Act – but the damage was done. Johnson failed to get nominated at the Democratic National Convention in New York in 1868. Grant would become the next President of the United States.

Conclusion

Andrew Johnson was a Union man through and through, but he was a racist who believed in the inferiority of African Americans and the right of States to decide on their Black Codes, organised and institutionalised repression of millions of Americans. During the post Civil War period it is accurate to say that thousands of African Americans were murdered, raped, wounded and whipped by thousands of white Americans in a wave of organised terror across the South, that the terrorism had the effect of collapsing Reconstruction as envisaged by Lincoln in his second Inaugural Address and which instead was replaced by a century of racial repression. It echoes still today.

That the roots of these events occurred on Andrew Johnson’s watch as Lincoln’s successor ranks him as one of the worst US Presidents in history, regardless of the political theatre of his impeachment.

Nixon’s impeachment

It was just after midnight when Frank Wills, a security guard, noticed some odd tape covering latches that allowed doors to close but not lock. He removed it, but an hour later, when the tape had returned, Wills rang for the cops. It was 17th June 1972 at the offices of the Democratic National Committee (DNC) in a complex in Washington, called Watergate.

By the time the dust settled a few years later, 48 Government officials had been found guilty across a range of criminal charges, the United States had been convulsed in a scandal that rocked its democratic institutions and a sitting President Richard Milhous Nixon had resigned in disgrace on 8th August 1974.

A month after Nixon’s resignation, on 8th September 1974, his successor, Vice President Gerald Ford, issued a Presidential pardon and buried any risk that Nixon would face criminal prosecution in the courts.

Richard Nixon, 37th President, 20th Jan 1969 – 9th August 1974

Richard Nixon was a Californian lawyer by profession, first elected to the House of Representatives in 1946 and four years later to the Senate. His elevation was rapid, at the young age of 40, in 1953, he served as Vice President to President Dwight Eisenhower, the former Allied Military Commander who’d skilfully steered the Allies through the Normandy landings to the fall of Berlin. Eisenhower recognised Nixon’s talent and delegated important domestic and foreign tasks to him, deepening the lawyer’s experience and knowledge and helping Nixon build his skills for what was to come. But Nixon’s first attempt to win the Presidency ran headlong into a new force in US politics, John F Kennedy.

In 1960, after a series of TV debates, the charismatic John F Kennedy scored better than his more experienced rival, Nixon was defeated by 0.2% of the popular vote. Regarded as the end of his political career in 1962, Nixon lost the race to become Governor of California to his Democrat rival. It looked as if Nixon’s political career was over and a life in private legal practice beckoned, but Nixon was ever the fighter and by 1968 he was back sensing an opportunity to appeal to American conservatives alienated by the anti-war demonstrations, hippie culture, and a Democrat White House. Nixon promised to end the war in Vietnam. His campaign succeeded by a huge margin, winning by over a hundred electoral college votes and defeating his main rival, Vice President Hubert Humphrey.

Nixon, with his National Security Advisor Henry Kissinger, would go on to break new ground in US foreign policy through deft handling of relations with China and the Soviet Union. Nixon, determined to find a way to end the Vietnam War, ordered a phased withdrawal of US troops from South Vietnam while carpet bombing and then launching a ground invasion of Cambodia in 1970 to contain Khmer Rouge incursions along the Ho Chi Minh trail, the supply line through the spine of Vietnam. In 1973, following the Paris Peace Accords, the remaining US military pulled out of South Vietnam. Two years later, the South was conquered by the North Vietnamese.

After the success of his China visit, Nixon turned his attention towards Détente with the USSR and met Leonid Brezhnev the Soviet leader in Moscow in May 1972, a conference that led to SALT 1, an anti-ballistic missile treaty.

In the Presidential election in 1972, he won 60% of the popular vote, the largest landslide victory in US history. Strongly in favour of supporting Israel, Nixon’s supplied Israeli forces during the 1973 Yom Kippur War, a move that is credited with securing the Israeli victory over Egypt and Syria who were backed by the USSR. But by the following year, Nixon was back in the Soviet Union hoping to distract public attention from the Watergate controversy which had begun to swamp his Presidency.

Watergate

Washington police responded to the phone call from Frank Wills by arresting five men at the DNC offices on 17th June 1972, charging them with attempted burglary and attempted bugging. It would lead to indictments against two officials, Gordon Liddy, the Finance Counsel at the Committee for the Re-Election of the President (CRP), and his subordinate ex-CIA operative, Howard Hunt. The five burglars pleaded guilty and were convicted seven months after the burglary.

The initial White House response was to dismiss the burglary as a botched job by a rogue group with no link to White House staff. Nixon announced that he’d conducted a thorough investigation. It was a lie. Within two months, Washington Post journalists Bob Woodward and Carl Bernstein hit on the money trail in the form of a cashier’s cheque deposited into the account of one of the burglars. The journalists were assisted by a knowledgeable insider, then known as Deep Throat but revealed 33 years later as the Deputy Director of the FBI, William M Felt. The FBI man urged Woodward to “follow the money”; that pre-knowledge of the burglary and the attempted cover-up would lead to the top at the FBI, CIA, Department of Justice, and the White House.

The cheque uncovered by Bernstein was a 1972 campaign donation from a Republican supporter, Kenneth Dahlberg, to the Finance Committee of the CRP, linking the crime to the campaign to re-elect Nixon and ensnaring its treasurer Hugh Sloan, who had passed the money to Gordon Liddy on the instructions of two CRP Directors, Magruder and Stans.

By September 1972, the press – led by the Washington Post and the New York Times – was reporting that Watergate was the tip of the spear, that it was part of a much bigger political espionage conspiracy and that, while acting as Attorney General, John Mitchell ran a slush fund to finance spying on Democrats. When the Washington Post was getting closest, the White House chose to isolate and attack it publicly, labelling the newspaper irresponsible and saying that it was conducting a witch hunt on behalf of the liberal media.

The Watergate controversy didn’t diminish with the convictions of the burglars in January 1973 but escalated when one of the convicted men wrote to the trial judge alleging that the defendants had been pressurized into committing perjury and into remaining silent. The heat grew and by April 1973 Nixon’s Attorney General John Mitchell and Presidential Counsel John Dean were implicated, leading President Nixon to ask for the resignation of several key members of his staff, including Dean. Nixon was raising the drawbridge and sacrificing key members of his team to create distance, maintaining the fiction that he knew nothing of these events or their cover up. Dean testified that he believed the Oval Office conversations were recorded by the President. It was a pivotal revelation that would unseat Nixon the following year.

While these events were unfolding, the Senate established a select committee in February 1973 tasked with investigating Watergate through open hearings broadcast on TV and radio. At one such hearing in July 1973, White House assistant, Alexander Butterfield, confirmed on live TV that Oval Office conversations were being recorded. Special Prosecutor Archibald Cox reacted by serving the President with a subpoena for the tapes. Nixon’s refusal would set the stage for a major constitutional confrontation.

When Cox refused to withdraw his subpoena, Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned, as did his deputy William Ruckelshaus, when also so ordered. Eventually, after finding a Justice official to carry out his order, Nixon fired Cox, leading to a standoff with the White House – one claiming the right to discovery, the other to Executive privilege.

By February 1974, the Judiciary Committee of the House of Representatives had been formally established to investigate the impeachment of the President and by July it voted to recommend an article of impeachment for obstruction of justice.

By 1st March 1974, a Washington Grand Jury indicted seven of Nixon’s former aides for covering up the Watergate investigation and the following month, Nixon released edited transcripts of some of the tapes, claiming privilege on matters dealing with national security and redacting foul language. The calls for impeachment grew as the public read transcripts that revealed shabby behaviour by Nixon’s team.

On 24th July, a Supreme Court ruling on the contested claims of Executive privilege over the tapes was comprehensively defeated in a unanimous verdict. The Court ordered the full tapes to be released. Nixon complied six days later. The tapes contained damning conversations that demonstrated that Nixon had knowledge about cash payments to the burglary team to buy silence. Then the real breakthrough came when, on 5th August 1974, the White House released a tape recorded within days of the burglary. This, which became known as the smoking gun tape, clearly showed Nixon discussing how to suppress the FBI investigation and it demonstrated that Nixon had consistently lied over two years about his innocence.

Republican support evaporated and on the night of 7th August 1974 a senior group of Republicans, led by Senator Barry Goldwater, informed Nixon that his support was gone and that he faced certain impeachment. Nixon resigned the next day, and exactly a month later his successor President Ford pardoned him in an act that is likely to have cost Ford the 1976 election to a peanut farmer from Georgia, Jimmy Carter, who won 50.1% of the popular vote, the largest since Eisenhower. Carter would be comprehensively defeated in his 1980 campaign for re-election by a Hollywood actor, Republican Ronald Reagan.

Conclusion

American democratic institutions were critically tested and survived a severe finding: that its leading White House officials, led by the President, were engaged in a conspiracy to run surveillance and cover-ups, that criminality and lies had become the modus operandi. The American public was shocked by the criminal behaviour of all the lawyers caught up in the Watergate scandal, leading to fresh disclosure of information legislation and tighter regulation of the profession.

Although Richard Nixon proved himself to be gifted at foreign policy, making pivotal breakthroughs with both China and the USSR and ending US involvement in the Vietnam War, his Watergate legacy – sadly for his family – overshadows his remarkable accomplishments. The 37th President of the United States of America remains in a club of one, the only President to resign from office under threat of impeachment.

Thus far.

Eddie Hobbs