Posted by: David Offutt | November 20, 2008

Impeachment Crises: Andrew Johnson and Bill Clinton

image2526The  opening of the Clinton Library in Little Rock  renewed interest in the impeachment controversy. It is the most controversial part of the museum exhibits because it does not just chronicle what happened – as Clinton opponents would prefer: It attempts to explain exactly what was going on, and it succeeds up to a point. It does not even mention what was ultimately at stake: Do we want to replace our constitutional system with a parliamentary system? This was the second time in U. S. history that we have faced this crisis. The first, of course, was the impeachment and trial of Andrew Johnson in 1868.

Our constitutional system provides for the selection of the President by a combination of the popular vote and (officially) the electoral vote – with the Congress being separate and having nothing to do with it. The President can be removed from office if he is impeached (charged) for committing “high crimes and misdemeanors” by the House and found guilty by the Senate.

In contrast, the parliamentary system, such as the one in Great Britain, provides for the popular vote to elect the members of the legislative branch. The party with the most seats in the legislature selects the Prime Minister. The legislature can remove the Prime Minister with a vote of “no confidence.” As a rule, the legislature picks him, and it can get rid of him.

Andrew Johnson was the first of two presidents who were impeached for political reasons rather than “high crimes and misdemeanors.”

Andrew Johnson and Bill Clinton faced congresses that were controlled by the other party. The Republican Congresses did not like them personally, did not like their political policies, and determined to get rid of them. However, votes of “no confidence” would not work. In our constitutional system, for the Republicans to be able to overturn the elections of 1864 and 1992 and 1996, each of these Presidents would have to be charged and convicted of abusing his office to commit serious crimes.

Andrew Johnson was supposed to have been murdered on the same night as Lincoln, but that failed. Hence, the radical Republicans had to find another way to get him out of office. Since he was not guilty of any crimes, they decided to get him to commit one. They passed the Tenure of Office Act over his veto. It stated that if the Senate approved an appointment made by the President then the Senate would also have to approve that person’s removal by the President. This bill was clearly unconstitutional (the Supreme Court finally declared it so in 1926). It violated our constitutional system of checks and balances and of the separation of powers. The Senate can check the power of the President but does not have “parliamentary” control over him.

The Tenure of Office Act was passed because the radical Republicans knew that Johnson was getting ready to fire their man in his cabinet – Secretary of War Edwin Stanton. The act would either prevent Johnson from firing Stanton or get Johnson to break the law. Johnson said the law was unconstitutional and then attempted to fire Stanton and replace him with Gen. U.S. Grant. He was impeached by the House and put on trial in the Senate.

In 1994, the Republicans gained control of both houses of Congress.  Newt Gingrich of Georgia (a.k.a. Gingrich Khan) became the new Speaker of the House and announced that the President was “irrelevant.” The Republicans then spent 70 million tax dollars trying to find some reason for which they could impeach Bill Clinton. The partisan Republican Kenneth Starr was made special prosecutor, but he came up dry except in Clinton’s private sex life. Since all the investigations indicated Clinton had committed no crimes, the only option left was to get him to commit one. They would publicly embarrass Clinton if he admitted to cheating on Hillary, or they would impeach him if they could get him to lie about it under oath. The House impeached him, and the Senate put him on trial.

Needless to say, neither President misused his office  to commit high crimes and misdemeanors. Both were impeached and tried for political or personal reasons by legislative branches controlled by their opponents. This is contrary to our system under the U. S. Constitution but is acceptable under a parliamentary system.

Radical Republican Benjamin Wade was President pro tempore of the Senate and would have replaced Andrew Johnson as President of the United States.

The constitutional system was in extreme jeopardy with the trial of Andrew Johnson. The radical Republicans controlled two-thirds of the Senate (36 of 54) which was the minimum required to convict. Six moderate Republicans voted “not guilty” with the twelve Democrats (making the potential vote 36 to 18). In an excellent example of a conflict of interest, Benjamin Wade of Ohio voted “guilty” – he was the President pro tempore of the Senate and would have become President if Johnson were removed from office! However, one of the 36 radical Republicans, Edmund Ross of Kansas, voted “not guilty” and saved the Constitution. Ross realized that Johnson was correct about the unconstitutionality of the Tenure of Office Act and that he was being charged only for political reasons. One senator breaking ranks made the difference! Ross’s public career, of course, was over.

In Bill Clinton’s case, the constitutional crisis was not over whether he would be found guilty and removed from office for the wrong reasons. The votes against him were not there. It would have taken 67 of the 100 senators to convict him, and the Republicans had only a 55-45 majority (and the five moderate Republicans voted “not guilty” with the Democrats while the fifty Republican conservatives and extremist radical-reactionaries voted “guilty” as a bloc ). The crisis was this: Would Clinton let them get away with it? There were many who wanted Clinton to resign in embarrassment and disgrace to avoid the impeachment proceedings. If he had resigned, then all future presidents would be faced with parliamentary rule. They would have to placate the Congress in order to stay in office. Clinton withstood the pressure. Once again, the Constitution was saved against its enemies.

Our Founding Fathers never intended for the President to be removed from office just because the legislative branch did not like him or his policies. Thanks to Andrew Johnson, Edmund Ross, and Bill Clinton, we still have a president and not a prime minister.

by David Offutt (slightly revised December 31, 2009)
A version of this essay was published March 4, 2005,
in the El Dorado News-Times as a letter to the editor.

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