First impeachment inquiry against Andrew Johnson

In the 39th Congress the committee consisted of seven Republicans, one Democrat, and one Unconditional Unionist.

In the 40th Congress, the committee consisted of seven Republicans and two Democrats. Committee member Francis Thomas (a member of the Unconditional Union Party in the previous congress) was now a member of the Republican Party. Democrat Sydenham Elnathan Ancona and Republican Daniel Morris had departed, while Democrats Charles A. Eldredge and Samuel S. Marshall and Republican John C. Churchill joined the committee.

In order to comply with Ashley's impeachment resolution, the Judiciary Committee began to slowly conduct an impeachment inquiry, gathering evidence from witnesses in closed sessions.[1][2][13]

The committee ran out of time to complete its inquiry, with the 39th Congress expiring, However, the committee ruled that they had received “sufficient testimony” to continue their investigation in the new 40th Congress.[1] March 2, 1867, two days before the end of the 39th congress, the committee recommended that the matter be further reviewed in the next congress, with committee member James F. Wilson presenting this recommendation to the whole of congress.[5][16] The full House was then read the committee's majority report which argued that, in the expiring hours of the 39th congress, no affirmative report could be properly considered, and opined that it was "inexpedient to submit any conclusion," with the committee having not fully investigated all charges against the president.[6] This report had been approved by the committee's Republican chairman James F. Wilson, as well as Republican committee members George S. Boutwell, Burton C. Cook, William Lawrence, Daniel Morris, Thomas Williams, and Frederick E. Woodbridge and Unconditional Unionist committee member Francis Thomas.[6][15] The sole Democratic committee member, Sydenham Elnathan Ancona, submitted a minority report against a continuation of the inquiry.[6]

The 40th Congress ultimately consented to the recommendation that the Judiciary Committee made near the end of the 39th congress, and ordered the committee to continue its inquiry.[17] On March 7, 1867, the third day of the 40th Congress, James Mitchell Ashley introduced a resolution calling for the impeachment investigation by the Judiciary Committee to be continue, which the House adopted without division after both debate and the defeat of a motion to table it.[5][11][18]

New congressman Benjamin Butler requested to be added to the Judiciary Committee, but John Bingham strongly objected to this.[2]

The 40th Congress' House Committee on the Judiciary resumed the inquiry started by the committee in the previous congress.[1] They held month of closed-door hearings.[1]

When the committee began investigating Johnson's finances, Johnson irately reacted, "I have had a son killed, a son-in-law die during the last battle at Nashville, another son has thrown himself away, a second son-in law is in no better condition. I think I have sorrow enough without having my bank account examined by a Committee of Congress."[2]

On March 29, 1867, a resolution was agreed to by the House which requested that the committee report within a certain time.[11]

On June 3, 1867, in a 5–4 vote, the committee voted against sending articles of impeachment to the full house, with three moderate Republican members joining two Democratic members of the committee in voting against doing so.[1][4] They, however, also voted in support of censuring Johnson.[2] On July 10, 1867, James F. Wilson reported verbally on behalf of the committee, by its direction, that they anticipated being able to report on or after October 16. He also stated that, as it then stood, five members were of the opinion that high crimes and misdemeanors warranting impeachment had not occurred, while the remaining four members believed that they had.[11]

On July 17, 1867, the House agreed to an amended version of a resolution by John Covode, instructing the committee to inquire to new a charge levied against the president. The new charge was that Johnson had, allegedly, at the request of Lincoln assassination conspirator John Surratt's counsel, Johnson given a full pardon to Confederate Stephen F. Cameron. The resolution instructed the committee to look into this action, which it declared would demonstrate Johnson's "sympathy with the men who murdered the President" if true. The resolution also instructed the committee to, in the first week of the second session of the 40th Congress, report evidence to the House on this together with the testimony already collected in the impeachment inquiry.[11]

John C. Churchill's change of vote moved the Judiciary Committee 5–4 in favor of impeachment

By the 1867 summer congressional recess, the House Committee on the Judiciary had not delivered a report to the full congress, meaning that they had not yet formally closed their inquiry.[4][19][13]

Over the 1867 congressional recess, sentiments among Republicans shifted more in favor of impeachment. A contributing factor was Johnson's suspension of Secretary of War Edwin Stanton and replacement of him with Ulysses S. Grant on August 12, 1867, taking advantage of a loophole in the Tenure of Office Act created by the Senate being in recess.[19] Another reason was Johnson's subsequent firing of Generals Philip Sheridan (who had been in charge of Texas and Louisiana), which was soon followed by his August 12, 1867 firing of Daniel Sickles (who had been in charge of North Carolina and South Carolina), which further contributed to Republican furor.[13][19] Johnson had fired them against Grant's advice. Both Sheridan and Sickles had acted in their offices to protect policies extending civil rights to African Americans[19]

The Judiciary Committee had left its proceedings confidential. When congress reconvened after the recess, most congressmen still believed the pending majority report would be against impeachment, just as the committee had previously sided in their earlier July vote.[20] However, by the time congress' recess ended in late November 1867, John C. Churchill, a moderate Republican on the committee, had changed his mind in favor of impeachment. On November 25, 1867, the House Committee on the Judiciary voted in a 5–4 vote to recommend impeachment proceedings, and submitted its report to the House.[4][19] The majority approved a resolution which read, "Resolved, That Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors."[11] The majority consisted of George S. Boutwell, John C. Churchill, William Lawrence, Francis Thomas, Thomas Williams.[11]

The minority had instead recommended a resolution that would have read, "Resolved, That the Committee on the Judiciary be discharged from the further consideration of the proposed impeachment of the President of the United States, and that the subject be laid upon the table." The minority consisted of Democrats Samuel S. Marshall and Charles A. Eldredge and Republicans James F. Wilson (the committee's chair) and Frederick E. Woodbridge.[11]

Afterwards, Churchill published a lengthy letter in The New York Times explaining the reason for his change of mind,[19] writing in part,

"The President in the exercise of his constitutional powers, by such changes of military commanders, or such withdrawal of troops from the reconstructed States, or such other acts as should destroy the confidence of loyalists and freedmen in prompt military protection in the exercise of their suffrage, at any time before the new State Governments shall have been established, and shall have set in operation a machinery of their own for the protection of their citizens, would make it impossible to carry a single Southern State in accordance with the views of a majority of Congress."[19]

The committee submitted three reports to the full House, a majority report and two dissenting reports.[19]

Thomas Williams wrote the committee's majority report in favor of impeachment

The majority report in favor of impeachment was written by Radical Republican committee member Thomas Williams and listed seventeen instances in which he argued Johnson had reached the threshold of impeachment. The report wrote that the primary issue to fault Johnson with was, "the great salient point of accusation, standing out in the foreground, and challenging the attention of the country, is the usurpation of power, which involves, of course, a violation of law." He argued that Johnson had undermined Congress.[19] The report was submitted to the full House by George S. Boutwell on November 25, 1867.[6] It was only when the majority report was published that those not on the committee learned that Churchill had changed his stance on impeachment.[20]

The report alleged that Johnson had undermined the United States Congress with, "the purpose of reconstructing the shattered governments of the Rebel states in accordance with his own will, in the interests of the great criminals who carried them into the rebellion." It alleged that, by giving such lenient treatment to former Confederate soldiers, Johnson had robbed "the people of the loyal States of all chances of indemnity for the past or security for the future." The report cited Johnson for having pardoned Confederate "offences" and giving Confederate rebels back "their lands", and while the Confederate "hearts" remained "unrepentant, and their hands yet red with the blood of our people".[19] The report also cited Johnson for trying to bring former Confederate rebels back into the United States Congress, "where they could once more embarrass and defy, if not absolutely rule the government which they had vainly endeavored to destroy." The report claimed that this was, "the great master-key which unlocks and interprets all of" Johnson’s other "special acts of mal-administration.".[19]

The report made the following seventeen charges against Johnson:[11]

1. That Johnson, "assuming it to be his duty to execute the constitutional guaranty," had worked to (without the consent of the legislature) provide new governments for the former Confederate states as he pleased, and sought, "to force them into the Union against the will of Congress and the people of the loyal States, by the authority and patronage of his high office."
2. That Johnson had created offices not provisioned for under the law, and appointed individuals to them without the advice and consent of the United States Senate. That those he had appointed were, "men who were notoriously disqualified to take the test oath.” That Johnson paid those individuals salaries at the rates he desired, and also paid for the expenses of his own work with funds belonging to the United States Department of War, "in clear violation of law."
3. That to pay the expenses of such aforementioned organizations he had created without legislative approval; he had ordered those appointed to the positions he created to appropriate government property and to levy taxes, "from the conquered people".
4. That Johnson had given, "without equivalent", former Confederates who were stockholders of southern railroads that the Union Army had captured back not only their railroads, but also rolling stock and machinery that the Union Army had captured, and had even, at great government expense, constructed and renovated southern railroads.
5. That Johnson had, "without authority of law", sold the aforementioned railroad stockholders, "at a private valuation, and on a long credit, without any security whatever," a large amount of rolling stock and machinery that had been purchased by and belonged to the United States government. That Johnson had also, following numerous defaults by those he had sold these to, postponed the debt due to the United States government in order to allow them to pay the claims of other creditors. That Johnson had also issued arrears of interest on a large amount of bonds of the companies guaranteed by the State of Tennessee, which Johnson himself held a large amount of.
6. Not only had Johnson given back former Confederate owners large amounts of cotton and other property that had been seized by the United States Treasury, but has worked to pay back proceeds of actual sales of such property as he desired, "in utter contempt of the law", directing the Treasury to make such payments, and the aggrieved parties to seek remedy in the Courts, thereby violating "the true meaning and spirit" of the Constitutional clause containing the language that, "no money shall be drawn from the treasury but in consequences of appropriations made by law."
7. That Johnson has, "to the great detriment of the public," abused his pardon powers by releasing "the most active and formidable" leaders of the Confederacy, "with a view to the restoration of their property and means of influence," with aims to receive their help in furthering his policy. That Johnson had also been "substantially delegating that power for the same objects to his provision governors."
8. The Johnson had abused his pardon with the full simultaneous pardon of 193 deseters, and the restoration of their "justly forfeited claims" to arrears of pay from the Government. That Johnson had done this without proper inquiry or sufficient evidence.
9. That Johnson had not only, "refused to enforce the laws passed by Congress for the suppression of the rebellion, and punishment of those who gave it comfort and support," in directing proceedings against delinquents and their property, but that he had also completely. "obstructed the course of public justice," by either prohibiting the start of such legal proceedings or (if they had already commenced) staying them indefinitely or ordering the absolute discontinuance of such proceedings.
10. That Johnson had, "further obstructed the course of public imprisonment" Clement Claiborne Clay ("an important state prisoner") and forbidding his arrest in proceedings instituted against him for treason and conspiracy in the State of Alabama, and had ordered his property seized by an United States district attorney to be restored to him.
11. That Johnson had abused his Constitutional appointment power. That he had done this by removing, "on system and to the great prejudice of public," a large number of "meritorious public officers" solely because they refused to support Johnson's claim that he had a right to reorganize and restore the former Confederate states on his own terms, and instead had favored honoring, "the jurisdiction and authority of Congress" on the matter. That he had also done so in making Recess appointments of people who he had nominated for office, but who had been rejected by the United States Senate.
12. That Johnson had, against the law, exercised powers to dispense by commissioning individuals who were "notoriously disqualified by their participation in the rebellion from taking the oath of office required by act of Congress" as revenue officers and to offices that had not been legislatively provided for, and had allowed them to take such offices and exercise their duties, and paid them salaries for their work.
13. That Johnson had, in accordance with his public declaration that he, "would veto all measures whenever they came to him", systematically vetoed, "all important measures of Congress looking to the reorganization and restoration of rebel States." That he had done so with, "no other reasons than a determination to prevent the exercise of the undoubted power and jurisdiction of Congress over a question that was cognizable exclusively by them."
14. That Johnson had, "brought the patronage of his office into conflict the with freedom of elections," by permitting and encouraging his official retainers to travel the nation, attending political convention and addressing crowds instead of performing the jobs they were receiving "high salaries" for.
15. That Johnson had, "exerted all the influence of his position" to prevent the residents of the former Confederate states from accepting terms that Congress had offered them, and had "neutralized to a large extend the effects of the national victory by impressing them with the opinion that the Congress of the United States was bloodthirsty and implacable and that their only hope was in adhering to him."
16. That, in addition, "to the oppression and bloodshed that have everywhere resulted," from Johnson's, "undue tenderness and transparent partiality" to Confederates, Johnson has also, "encouraged the murder of loyal citizens in New Orleans by a Confederate mob pretending to act as a police, by hireling correspondence with its leaders, denouncing the exercise as a constitutional right of a political convention to assemble peacefully in that city as an act of treason proper to be suppressed by violence, and commanding the military to assist instead of preventing the execution of the avowed purpose of dispersing them."
17. That Johnson was, "guilty of acts calculated, if not intended, to subvert the Government of the United States by denying that the Thirty-ninth Congress was a constitutional body and fostering a spirit of disaffection and disobedience to the law and rebellion against its authority by endeavoring. in public speeches, to bring it to odium and contempt."

One dissenting report was agreed to by the two Democratic members (Marshall and Eldredge), while the other was agreed to by the two moderate Republicans that had voted against recommending impeachment (Woodbridge and Wilson).[11][19]

The Republican minority report, written by Wilson, wrote that, while they were against impeachment, they believed Johnson, "deserves the censure and condemnation of every well-disposed citizen." They argued that the congress should wait and let Americans remove Johnson from office in the 1868 presidential election.[11][19] It declared that Johnson, "has disappointed the hopes and expectations of those who placed him in power. He had betrayed their confidence and joined hands with their enemies." However it also declared, "judge him politically, we must condemn him. But the day of political impeachments would be a sad one for this country.".[11] The Democratic minority report, was written by Marshall, and dissented from all criticism of Johnson.[11]

George Boutwell delivered the argument in favor of impeachment

The House Committee on the Judiciary's Radical Republicans selected, from their ranks, to have George S. Boutwell argue the case for impeachment to the house. He made a four hour presentation, stretched over two legislative days (December 5 and 6, 1867), which historian Michael Les Benedict later described as, "the clearest, most eloquent, and most convincing argument for the liberal view of the impeachment power".[21] His speech largely focused on the legal question on whether the president's activities were legally impeachable.[20]

Boutwell argued that there needed to be a broad interpretation of impeachment powers. He tore apart the notion that impeachment required a clear violation of the law in order to be applied. Instead, citing British precedent and debates from the Constitutional Congress, he argued that impeachment was intended to be used in instances where public trust had been violated, and that impeachment was to be used when an officer refused to "faithfully execute" their office. He argued that America could not wait until the next presidential election to remove an unsuitable president.[21] Boutwell argued that impeachment power "is subject to no revision or control", but is rather solely to be guided by the judgement of the House of Representatives.[20]

Boutwell also argued that Johnson had committed flagrant misdeeds that approached criminality in his subversion of the law and refusal to uphold the law, and therefore, his actions had been clearly impeachable.[21] He cited Johnson's veto of the Reconstruction Acts which the congress had overwhelmingly passed.[21] He cited Johnson's urging for southern states under federal control to refuse to ratify the Fourteenth Amendment to the United States Constitution.[21] He also cited Johnson's creation of provisional governorships without authorization, and appointment of provisional governors that Boutwell claimed were ineligible to take official loyalty oaths due to their participation in the Confederacy.[21] Citing these and other actions, Boutwell alleged that Johnsons actions were intended to return Confederates to power in the state and national governments against the judgement of Congress. Boutwell argued, "can there be any doubt as to his purpose, or doubt as to the criminality of his purpose and his respojnsibility under the Constitution?"[20]

Boutwell also framed a portion of his argument around the notion that impeachment could stop Johnson from interfering in the southern states during the 1868 presidential election, citing specific concerns that Johnson could supress the vote of African Americans.[21]

Boutwell argued,

"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, 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."[21]

House Committee on the Judiciary Chairman James F. Wilson delivered the argument against impeachment

After Boutwell's presentation, James F. Wilson, chairman of the House Committee on the Judiciary took to the floor to argue against impeachment. Wilson argued that while Johnson was the "worst of presidents", his opposition to the positions of the Republican Party was not illegal. Wilson argued that, despite Boutwell's assertion that it did, the House did not have lone authority to determine what constitutes an "impeachable offense".[21] Wilson warned the that a broad interpretation of impeachment powers, as Boutwell championed, in theory could allow the House to effectively dictate the policy of presidents.[21] He spent half of his speech arguing that impeachment was only reserved for indictable crimes, and attacking those who opposed this position.[20]

Wilson characterized the part of Boutwell's argument that had argued impeachment could stop Johnson from interfering in the southern states during the 1868 presidential election as Boutwell effectively arguing the House should be allowed to impeach Johnson for something he could do, rather than some thing he had done. Wilson argued, "this would lead us even beyond the conscience of this house."[21]

Wilson also argued that much of Boutwell's argument was inconsistent with the majority committee report. Indeed, this was true. Boutwell's speech had dismissed English precedents as irrelevant to impeachment under the United States constitution, despite the fact that the majority report cited English precedent. Boutwell had also argued against the minority's stance by characterizing their view as one under which if an officer committed murder in such a manner that they would be outside of United States court jurisdiction, they would be immune to impeachment. However, the majority report had explicitly stated the belief that murder would not be an impeachable offense, as it would not directly relate to their officeholding. Michael Les Benedict has opined, "Wilson's blunt analysis of the inconstancies between Boutwell's brilliant speech and William's mediocre report did tremendous damage to the impeachers' case."[20]

In his closing remarks, Wilson asked, "if we cannot arraign the president for a specific crime, for what are we to proceed against him?"[21]

A copy of the vote

Discussion on the impeachment resolution was closed on December 6, 1867.[6] General debate was not permitted on the resolution when it was under consideration, with debate instead being limited to the aforementioned speeches by Boutwell and Wilson.[11] This is because Wilson managed to successfully motion lay the resolution on the table after delivering his speech.[20]

On December 7, 1867, the House voted against impeachment by a margin of 57–108, with 66 Republicans, 39 Democrats, and 3 other congressmen voting against impeachment; and with all votes for impeachment coming from Republicans.[20][21][23]

One motivating factor for Republicans' decision to vote against impeachment may have been the successes Democrats had in the 1867 elections, including winning control of the Ohio General Assembly, as well as other 1867 election outcomes, such as voters in Connecticut, Minnesota, New York, and Ohio turning down propositions to grant African Americans suffrage by large margins.[19][24][25][26] Other concerning election results included the very narrow margin-of-victory with which the Republican nominee won the 1867 Ohio gubernatorial election.[20] Only in the states of Michigan and Kentucky did Republicans improve upon their 1886 election performances in 1887, while the remaining eighteen states with elections saw Republicans lose sizable ground over the previous elections.[20] Michael Les Benedict has suggested that, as a result of these election results, in the Republican caucus, "the centrists, who might have favored impeachment had the elections demonstrated radical strength," were left, "divided, most of them opposing impeachment."[20]

Michael Les Benedict's analysis shows correlation between congressmen's votes in this impeachment vote and voting records in the 40th Congress votes on the matter of currency expansion, as well as voting records on Reconstruction issues during the 39th Congress.[20]

Vote on the "Impeachment of President Resolution"[23]
December 7, 1867	Party					Total votes
	Democratic	Republican	Conservatives	Conservative Republicans	Independent Republicans
Yea	0	57	0	0	0	57
Nay Y	39	66	1	1	1	108