The Case for Impeachment

THE WORST FATE THAT COULD BEFALL HIM

On April 15, 1865, just over a month after his inauguration, Lincoln died after the first presidential assassination in American history, and Johnson became the most accidental of presidents. In the wake of Lincoln’s death, Johnson showed a humility of the moment never seen in Donald Trump, commenting, “I feel incompetent to perform duties so important and responsible as those which have been so unexpectedly thrown upon me.” But Johnson’s humility did not last. His more enduring character traits inclined him to stubbornness, hasty action, disdain for cautious advice, and ill-tempered retorts against critics.13

Johnson loved the Union but not the black people it had liberated from slavery. Although later in life a moderately wealthy slaveholder, Johnson rose from the lower ranks of white society, what some at the time called “mudsills,” the humble white farmers, laborers, tradesmen, and mechanics that, like Trump, he had championed in his political campaigns. He saw mudsills as threatened both by aristocrats from above and aspiring black people from below. At an outdoor rally, he told a crowd of cheering white men that he was their Moses who would lead “the emancipation of the white man” from their slavery under postwar Reconstruction. Johnson, declared the former slave and abolitionist Frederick Douglass euphemistically, is “no friend of our race.”14

Johnson was an odd man in his time. He was an apostate Democrat assuming the incumbency of a Republican president. He lacked allies in either party and prided himself as an outsider untethered to a capital city that he called “12 square miles bordered by reality.” By opposing efforts to reconstruct the nation and integrate newly freed slaves into American life, Johnson quickly fell afoul of a Congress controlled by Republicans with southern states still in limbo. He pardoned from the consequences of rebellion thousands of wealthy planters, some of whom with their wives had wined and dined him in Washington. With his humble roots and his penchant for spouting populism but privileging the rich, Johnson foreshadowed Trump.

Johnson pushed to restore southern states swiftly to the Union with no controls on race relations. He lambasted the “Radical Congress” for giving blacks privileges “torn from white men.” In a comment eerily similar to Trump’s denigration of a “so-called judge,” Johnson decried Congress as “a body called or which assumes to be the Congress of the United States.” He proclaimed to be protecting America, not from ex-Confederates, but from radical Republicans and their Negro allies. He forced Congress to override his vetoes on legislation aimed at protecting black rights and safety in the South and exploited his powers as president to evade and obstruct the enforcement of these laws.15

Johnson’s conduct had tragic consequences for black people in the South. He restored to power, political and economic, much of the old slaveholding elite, who proceeded to keep their former slaves poor, controlled, and powerless. He forced his successor president and Congress to essentially begin anew much of the process of Reconstruction. Ultimately Reconstruction failed. The South remained mired in poverty, and the white supremacists who regained full control of southern governments imposed on African Americans the Jim Crow system of segregation and discrimination that endured for nearly a century. The failure of Reconstruction, “to a large degree,” wrote the historian Michael Les Benedict, “could be blamed alone on President Johnson’s abuse of his discretionary powers.”16

In 1867, murmurings of impeachment began to circulate among exasperated, radical Republicans in Congress. In March, they had enacted over Johnson’s veto the Tenure of Office Act, a law that cut into his powers by prohibiting the president from replacing without consent of the Senate any federal official who had previously won Senate approval. To bait an impeachment trap, Congress inserted a clause that said any violation constituted a “high crime and misdemeanor.” And then, they waited.17

JOHNSON STANDS HIS GROUND

Johnson was at the defining moment of his presidency. His response to Congress’s challenge would decide his own fate as president, with profound implications for every successor in the White House. He could battle Congress and risk impeachment or withdraw from the fray and count down passively the final days of his presidency. Or he could change his ways and reach an accord with the Reconstruction Congress.

Johnson stayed true to his notoriously pugnacious character and chose to fight. He taunted Congress by deliberately violating the Tenure of Office Act. “I have been advised by every member of my Cabinet that the entire Tenure-of-Office Act is unconstitutional,” he later said.18

The House of Representatives struck back, by voting along party lines to approve articles of impeachment tied to Johnson’s violation of the act. “He is not Napoleon,” said Republican representative Tobias A. Plants of Ohio, “there will be no coup d’état!” To keep open all options for the Senate, members voted for eleven verbose and repetitive articles, totaling some forty-five hundred words.19

In the fixation on the dubious Tenure of Office violation, lost were the potentially more serious charges that Johnson had abused presidential power to obstruct Reconstruction and delegitimize another branch of government. Embedded within the garrulous articles was the charge that his conduct was “denying and intending to deny, that the legislation of said Congress was valid or obligatory.” The articles charged him with saying that Congress was not a legitimate body “authorized by the Constitution to exercise legislative power.” The articles further charged that he had willfully schemed to “prevent the execution” of legislation vital to congressional Reconstruction.20

Johnson’s last chance to fight for his survival in the Senate had arrived. The Senate trial dragged on for nearly three months, with House prosecutors and defense lawyers clashing on issues that cut to the heart of the meaning of impeachment and the scope of presidential authority.

IMPEACHMENT’S BIG ISSUES

America’s founders, insisted the prosecutors, placed no restrictions on what qualifies as an impeachable offense. Impeachment is not meant solely “for the punishment of crime,” argued the chief prosecutor, Benjamin F. Butler of Massachusetts. A president should be impeached and convicted if he “imperils the public safety” and shows himself “unfit to occupy official position.” Wrong, said Johnson’s defense attorney Benjamin Curtis. Impeachment, he argued, requires a violation of law and not just of any law, but of “only high criminal offenses against the United States.” The Senate cannot sit “as some nameless tribunal with unbounded and illimitable jurisdiction.”21

Prosecutors claimed that Johnson had no absolute authority to disobey the law, and that his discretion begins and ends with his veto power. The right “to judge upon any supposed conflict of an act of Congress with the Constitution is exhausted when he has examined a bill sent to him and returned it with his objections,” Butler said. After that, he “must execute the law, whether in fact constitutional or not.” Otherwise, “the government is the government of one man.”22

The House’s constriction of presidential power “does offend every principle of justice,” responded another presidential lawyer, William Evarts. “If an act be unconstitutional [the president] had a right to obey the Constitution,” and “to raise a question between the Constitution and the law.” The prosecutors, he warned, had proposed a subversive doctrine that “constitutional laws and unconstitutional laws are all alike in this country,” and the president must obey both equally.23

In their final bold argument against excessive presidential authority, prosecutors said that the laws of Congress restricted the president’s powers to remove federal officials. “If we concede such royal power to a president,” said Representative John A. Logan of Illinois, “he is henceforth the government.” Americans must ask, “Will you have Andrew Johnson as President or King?” Johnson’s attorney general, Henry Stanbery, who rose from a sickbed to defend his president, argued that the Constitution granted the president absolute authority over removing administration officials. He fired Stanton “in the exercise of an undoubted power vested in him by the Constitution,” performing “a strictly executive duty.”24

Eventually, the Senate voted on three of the House’s charges, only to fall one vote short of the two-thirds needed for conviction in each case. Seven Republicans joined all the minority Democrats in voting for Johnson’s acquittal. “I knew he’d be acquitted; I knew it,” declared Johnson’s wife, Eliza, unsurprisingly his staunchest supporter.25

Yet defecting Republicans who saved Johnson’s presidency may have been informed less by a quest for justice than by the rules of presidential succession at the time that would have elevated the controversial President Pro-Tem of the Senate, Benjamin Wade of Ohio, to the presidency. The outspoken Senator had earned the nickname of “Bluff” and alienated many fellow Republicans with his radical views on Reconstruction and his support for paper money and protective tariffs. James Garfield, then a member of Congress, privately wrote that conservative Republicans feared “the Presidency of Ben Wade, a man of violent passions, extreme opinions, and narrow views.”26

A WARNING FOR TRUMP

Johnson’s acquittal may have pleased his wife, but it resolved none of the momentous issues debated at the trial. Johnson narrowly escaped removal, but a healthy majority of senators still had voted for his conviction. Although the Johnson precedent did not define the grounds for impeachment or disinfect the process from policy and politics, it showed how an impeachment and trial could benefit the nation. After his impeachment, Johnson tamed his invective and moderated his opposition to Republican Reconstruction. He served out quietly his last nine months in office without renewing his conflicts with Congress.27

To this day, impeachment remains subject only to the judgments of Congress. Too liberal use of impeachment could diminish the standing of Congress or unleash a chain reaction of uncontrolled partisan warfare. But too much restraint threatens to allow corruption and abuse to fester in the most powerful office in the world.

Andrew Johnson’s New York Times obituary contains a warning for Donald Trump. The Times observed that “Undoubtedly the greatest misfortune that ever befell Andrew Johnson was the assassination of President Lincoln.” Johnson’s fatal flaw, it said, was that “he was always headstrong and ‘sure he was right’ even in his errors.” The chapters to come will intimately acquaint you with Trump’s arrogance and errors. Don’t be fooled by the shifting decisions, policies, and pronouncements of a fast-moving presidency. May this be your guide to Trump’s many vulnerabilities to the ultimate sanction of restraint on a president, and your foundation for building a case for his impeachment.28

CHAPTER 2

The Resignation of Richard Nixon: A Warning to Donald Trump

____________

This is the operative statement. The others are inoperative.

—Richard Nixon press secretary Ron Ziegler, April 17, 1973

You’re saying it’s a falsehood. And they’re giving—Sean Spicer, our press secretary—gave alternative facts.

—Donald Trump senior advisor Kellyanne Conway, January 22, 2017

In a retrospective on the Nixon scandals forty years after the Watergate break-in, Woodward and Bernstein conceded that “Nixon was far worse than we thought.” Even early in his presidency, Donald Trump exhibits the same tendencies that led Nixon to violate the most basic standards of morality and threaten the foundations of our democracy. Both Nixon and Trump exhibited a determination to never quit, to win at all costs, to attack and never back down, and to flout conventional rules and restraints. But as ambitious and headstrong as they were, they also shared a compulsion to deflect blame, and they were riddled with insecurities. They exploited the resentments of white working class Americans and split the world into enemies and loyalists. In the first month of his presidency, Trump talked more about “enemies” than any other president in history. Neither man allowed the law, the truth, the free press, or the potential for collateral damage to others to impede their personal agendas. They cared little about ideology but very much about adulation and power. They had little use for checks and balances and stretched the reach of presidential authority to its outer limits. They obsessed over secrecy and thirsted for control without dissent.

The establishments in New York and Washington and at the elite universities viewed the two men with distaste throughout their long careers. In turn, these professed populists scorned a cultural elite of mainstream journalists, Hollywood celebrities, revered politicians, and Ivy League professors. When first elected president, Nixon had commanded his aides, “No one in Ivy League schools to be hired for a year—we need balance—trustworthy ones are the dumb ones.” But “trustworthy” to whose benefit? Certainly not to the American people, who’ve put their welfare in the hands of that government meant to represent their—and not its own—best interests. So far, with few exceptions, Donald Trump has avoided Ivy League professors for cabinet or top staff positions in his administration.1

Long after he resigned the presidency, Richard Nixon confessed to an intense admiration of Donald Trump. To the magnate in 1987, he wrote: “Whenever you decide to run for office you will be a winner!” Trump proclaimed that he would hang Nixon’s “amazing” letter in the Oval Office.2

In 1974, two years after winning a landslide reelection victory, Nixon avoided near certain impeachment and removal by becoming the only American president to resign the office. Nixon’s story is the cautionary tale for Donald Trump.

WATERGATE: A CANCER ON THE PRESIDENCY

In 1972, Richard Nixon brilliantly orchestrated his reelection campaign, but he still feared that leaks of such illegal acts as a covert bombing war in Cambodia and the wiretapping of reporters and administration officials could sink his reelection and even lead to his impeachment. In 1971, he established in the White House a covert unit known as the Plumbers to plug leaks. Members of the unit doubled as dirty tricks specialists who would conduct the Watergate break-in and the burglary of the office of the psychiatrist of Daniel Ellsberg, the man who had leaked the Defense Department’s secret history of the Vietnam War known as the “Pentagon Papers.” “You can’t let the Jew steal that stuff and get away with it,” Nixon told his chief of staff, H. R. “Bob” Haldeman. “People don’t trust these Eastern establishment people. He’s Harvard. He’s a Jew. You know, and he’s an arrogant intellectual.”3

In his campaign, Nixon set a model for Donald Trump by targeting the forgotten Americans: the so-called “Silent Majority, of white voters of modest means and education, ignored and scorned by Washington’s elite.” This Silent Majority of Americans believed that “as individuals they have lost control of a complicated and impersonal society which oppresses them with high taxes, spiraling inflation and enforced integration while rewarding the very poor and very rich.” Nixon would woo the Silent Majority with the “old values of patriotism, hard work, morality, and respect for law and order.”4

As for minorities, Nixon said that the administration would “pay attention” to blacks, “keep some around [to] avoid Goldwater problem.” Earlier he had said, “I have the greatest affection for them, but I know they ain’t gonna make it for five hundred years.” As for Jews, they “won’t get many, but don’t write them off.” Nixon advised that they should quietly woo Jewish and black support by meeting with leaders, but should “avoid speaking publicly to groups.”5

This strategy worked so well that, by mid-1972, the polls showed Nixon some twenty points ahead of the presumptive Democratic nominee, South Dakota senator George McGovern.

Why then did Nixon or his top aides launch the break-in of the Democratic Party headquarters at the Watergate Building in June 1972? This foolishly bungled caper that the Washington Post labeled “Mission Incredible” could only upset Nixon’s glide to reelection. The answer lies in a trait that Nixon and Trump share: a need for total control, combined with minimal self-awareness. Nixon still feared that somehow his enemies—the Kennedys, the press, the professors—would snatch from his hands the final victory he had worked so hard to earn. No loose end could be left unattended.6

What Nixon’s press secretary Ron Ziegler dismissed as a “third-rate burglary attempt” would prove to be so much more. This was the hole in the dike that even Nixon’s Plumbers could not plug. Eventually the dike would collapse and a flood of revelations about Nixon’s corruption would wash away his presidency.

A month after the break-in, Nixon lectured his aide John Ehrlichman on what he had supposedly learned from his crusade as a young congressman that helped convict the alleged Communist spy Alger Hiss of perjury: “If you cover up, you’re going to get caught. And if you lie you’re going to be guilty of perjury. Now basically that was the whole story of the Hiss case. It is not the issue that will harm you; it is the cover-up that is damaging.”7

Nixon’s words to Ehrlichman may have been delivered with breezy assurance, but he was frantically working to cover up a trail that led from the break-in to the leadership of his administration and campaign. He relied on deception posing as candor and on preemptive sallies against anyone in the press who dared to dig into the story. In a press conference filled with lies, Nixon falsely claimed that he had personally investigated the matter and settled all concerns over Watergate. He said “categorically” that a White House investigation indicates “that no one in the White House staff, no one in this administration, presently employed, was involved in this very bizarre incident.” Nixon added, “What really hurts is if you try to cover it up.”8

When reporters Bob Woodward and Carl Bernstein began investigating the break-in and other dirty tricks for the Washington Post, Nixon trotted out Ziegler to assail the press, just as Donald Trump would do more than four decades later. Ziegler was a former Disneyland skipper and guide for its popular jungle cruise with no political experience other than with the Nixon team. In 1969, at the age of twenty-nine he became the youngest presidential press secretary in history. Nixon could always count on Ziegler to get out the administration’s message of the day.

Ten days before the election he accused the now iconic Woodward and Bernstein of “shabby journalism,’’ “character assassination,” and “a vicious abuse of the journalistic process.” He charged their employer, the Post, with a “political effort” to “discredit this administration and individuals within it.” Earlier, Bernstein had told Nixon campaign manager John Mitchell, his former attorney general, that the Post would be publishing a story linking the Watergate burglary to a secret slush fund that Mitchell controlled. Mitchell responded with an unmistakable threat: “All that crap, you’re putting in the paper? It’s been denied. Jesus, Katie Graham [the Post’s publisher] is gonna get her tit caught in a big fat wringer if that’s published.”9

Nixon and Ziegler had set the precedent for Donald Trump and his aides when confronted with news reports of repeated contacts between Trump’s campaign staff and Russian officials. Deny. Lie. Threaten. And blame the messengers in the press, not the message itself, for the scandal.

In 1973, the reelected president could not stanch the flood of revelations that poured out in the spring of 1973, indicating that high officials of the Nixon administration and CREEP had directed the break-in and pressured the defendants to remain silent. On March 21, White House counsel John Dean warned Nixon that “We have a cancer within—close to the presidency, that’s growing.” A month later, Nixon’s lies had become so tangled that Ron Ziegler had to declare all of the president’s prior statements on Watergate “inoperative.” “The Nixon Administration has developed a new language,” commented Time magazine, “a kind of Nix-speak. Government officials are entitled to make flat statements one day, and the next day reverse field with the simple phrase, ‘I misspoke myself.’ ” Surrogates would later find themselves caught in the same trap of struggling to explain away Trump-speak, often in the form of Trump-tweets.10

THE COVER-UP EXPOSED

By summer of 1973, as part of a deal with the Democratic Senate for his confirmation, Attorney General Elliot Richardson had appointed law professor Archibald Cox as a special prosecutor. This came as a stinging affront to Nixon, who had told his advisor Henry Kissinger six months earlier that “the professors are the enemy. Write that on a blackboard 100 times and never forget it.” Worse still, Cox was from the Ivy League flagship of Harvard.11

With Democrats in control of the House and the Senate, a special Senate Watergate Committee headed by veteran Democratic senator Sam Ervin of North Carolina had begun holding spectacular televised hearings. The committee’s investigation uncovered an iceberg of illegal and illicit activities that Nixon had desperately sought to keep hidden. The Watergate break-in, it suddenly became clear, was only the tip.

Not long after, in July 1973, Alexander P. Butterfield, an obscure former White House aide, launched a bombshell: the president had tape-recorded all conversations held in his White House offices. During a yearlong struggle over access to the tapes, Vice President Agnew became the first vice president since John C. Calhoun to resign the office. Investigators had found that as governor of Maryland, Agnew had accepted bribes and kickbacks from contractors doing business with the state. In December 1973, with the approval of both houses of Congress, Nixon appointed House Minority Leader Gerald Ford of Michigan, America’s first unelected vice president.12

Even before the release of the tapes, though, another turn of events had already wounded Nixon beyond recovery. On Saturday evening October 20, 1973, in what would go down in history as the “Saturday Night Massacre,” President Nixon ordered Attorney General Elliot Richardson to fire Cox; Richardson refused to obey what he believed to be an illegal order and resigned. Deputy Attorney General William D. Ruckelshaus also refused to carry out what he too believed was an illegal order and he resigned. Solicitor General Robert H. Bork then complied with the president’s order and became the acting attorney general.

A Time magazine cover story called the massacre “one of the gravest constitutional crises,” in presidential history. It spurred outrage in Congress across the aisles and for the first time, polls showed that a plurality of the American people favored the president’s impeachment. On November 15, 1973, federal District Judge Gerhard A. Gesell ruled that, absent a showing of gross misconduct as required in the regulation establishing the special prosecutor’s office, the dismissal of Cox was illegal. Two days later at a nationally televised press conference an increasingly desperate Nixon pleaded, “I’m not a crook. I’ve earned everything I’ve got.”13