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Why Naked Partisanship Won’t Impeach a President

Presidents Richard Nixon (National Archives), Bill Clinton (DoD) and Andrew Johnson (Official White House Portrait)

The politics of presidential impeachment is never just about removing a president or the issues wrapped into the articles of impeachment. There are always broader, often underlying forces involved and political implications that linger in the body politic far beyond the time of any impeachment drama. The current impeachment thrust against President Trump is no exception. Consider the underlying forces and lingering implications of the country’s three previous impeachment initiatives. 

Andrew Johnson of Tennessee–a simple man, a tailor by trade–was considered something of a national hero in the North during the Civil War. When the secessionist crisis began, he declared his intention to stay with the Union even if his state seceded, which it did. True to his word, he stayed in Washington as Southern officials confiscated his lands and harassed his family. When he  accepted an appointment from Abraham Lincoln as military governor of those portions of Tennessee recaptured by the North, he put himself in constant mortal danger. Any Confederate who managed to kill him would be hailed as a hero throughout the South, and it was well known that conspiracies against his life were abundant.

Though a slave holder (he possessed a slave couple and their three children), he despised the planter aristocracy and fancied himself a champion of the South’s rural yeomanry, poor folks like those from his own heritage. As military governor he fostered legislation outlawing slavery in the state while also granting amnesty to former Confederate sympathizers. Widely considered a man of sound principle, he was selected by Lincoln as the Republicans’ vice presidential candidate in 1864. 

When thrust by fate into the presidency in the spring of 1865, however, he proved himself unequal to the challenge. Initially he sought to shape a Reconstruction policy aimed at bringing the Southern yeoman class to the fore while keeping the planters at bay. But ultimately he sought to cement the planters’ loyalty as a means of undermining the agitations of those congressional forces known as the Radical Republicans, bent on a punitive approach to Reconstruction. Johnson’s underlying racialist attitudes also came into view as he adopted a policy of ensuring that freed slaves did not get a foothold into the democratic process. His terms for readmitting former Confederate states into the Union were remarkably mild. 

Thus did the maladroit president destroy his standing with the voters, who in 1866 gave the congressional opposition veto-proof dominance over both houses of Congress. That began Congress’s Radical Reconstruction, which pushed Johnson onto the political defensive. Congress essentially took over the government, often in league with Johnson’s own Cabinet members, particularly War Secretary Edwin Stanton. Fearing Johnson would fire Stanton, Congress passed, over Johnson’s veto, the Tenure of Office Act, which placed restrictions on the president’s ability to discharge his subordinates. Johnson defied Congress and sought to fire Stanton. 

That action promptly led to a House impeachment initiative and a Senate trial. Johnson escaped Senate conviction by a single vote on three counts, including his violation of the Tenure of Office Act. But the president was reduced to political impotence as Congress essentially ran the government without much regard to the institutional powers and prerogatives of the executive. 

It didn’t matter that the Tenure of Office Act was patently unconstitutional, a rogue infringement on the president’s ability to carry out his duties. The U.S. Supreme Court affirmed its unconstitutionality in a 1926 ruling involving similar questions of congressional intrusion into the realm of presidential prerogative—in that case, the president’s exclusive power to remove staff whose duties are an extension of presidential authority. Thus we see that the Johnson impeachment was in part a spectacle of Congress seeking to destroy a president for resisting its own illicit law. 

Historians have debated the politics of Reconstruction over the past 150 years, and prevailing attitudes have shifted over that time. Once considered disruptive to the process of national healing after the Civil War carnage, the Radical Republicans have enjoyed a resurgence of respect in recent decades. But for our purposes the central point is that, when the Radical Republicans essentially took control over the executive branch during the Andrew Johnson years, they altered the constitutional balance of power for three decades. Future presidents, mindful of Johnson’s ordeal, tended to defer to Congress even on matters that could be considered within the president’s purview. 

It  wasn’t until the White House tenure of William McKinley, some 30 years after the Johnson impeachment, that the nation had a president who sought to create his own clear power base—in part by fostering cordial relations with members of Congress and the press, but in part also through extensive efforts to connect with the American people and generate waves of support for his policies throughout the country. Subsequently, the two Roosevelts built on that approach in dramatic ways, putting an end to any lingering impact of the Johnson impeachment.

The lessons of the 1974 impeachment drama involving Richard Nixon tracked in some ways with those of the Johnson episode. In the wake of that political drama, involving the first and only presidential resignation, the executive branch came under increasing scrutiny from Congress, and the balance of power shifted away from the White House as congressional investigations uncovered manifold abuses of power within the CIA, the FBI, and other federal agencies. 

But the Nixon impeachment inquiry, which began in the House Judiciary Committee, tracked with the Johnson precedent in another important way. Johnson’s supporters had managed to get the Senate to drop House charges that went beyond actual violations of law. For example, the House added an article of impeachment centered on Johnson’s inappropriate rhetoric, in which he “called his opponents traitors and likened himself to Jesus Christ,” as University of Texas professor Jeffrey Tulls describes it.  But the Senate rejected that article as being too political in intent and nature. “By establishing the principle that ‘high crimes and misdemeanors’ must refer to violations of law,” writes Tulls, “Johnson narrowed the debate to charges for which his guilt was very questionable.” That may have saved him in the Senate vote. 

As Tulls points out, Democrats during the Nixon impeachment drama sought to embrace a broader definition of impeachment offenses than Republicans were willing to embrace. The result was a compromise that gained general acceptance–namely, that “the language of the articles of impeachment encased the criminal charges in a broader rhetoric that asserted the president had abused his office.” The focus was on strictly legal violations. 

This turned out to be hugely significant. As more and more revelations of Nixon’s transgressions tumbled out and the House Judiciary Committee proceeded to vote on articles of impeachment, it became increasingly difficult for Republicans to resist the conclusion that the president had violated a sacred trust. Seven Judiciary Committee Republicans voted for one article of impeachment, six on another, and two on another (two other articles received no GOP votes). 

Of course Nixon resigned when the so-called “smoking gun” tape was released, revealing his involvement in efforts to cover up the Watergate burglary of June 1972, and the impeachment process came to an end. But before it ended it established two notable principles: first, it affirmed the Johnson precedent that articles of impeachment should focus on specific violations of law and avoid appearances of political zeal; and, second, it established the principle that, for purposes of legitimacy, impeachment efforts should avoid the appearance of being strictly partisan affairs. When Nixon’s political support collapsed in the wake of the smoking gun tape, it was a party of Republican leaders who went to the White House to tell him he must resign. 

The impeachment of Bill Clinton in December 1998 reinforced the principle that presidents shouldn’t be impeached for actions that don’t rise to actual legal infractions. In voting on four articles of impeachment, the House approved only the two that most clearly described such infractions–specifically, perjury and obstruction of justice. There was little doubt of the president’s guilt in both instances, but the question ultimately centered on whether the infractions rose to a level that justified the reversal of a presidential election. There were sound arguments on both sides. 

But unlike in the Nixon case, there was never a bipartisan political consensus that the president should be impeached and convicted. Yes, five Democrats voted for impeachment on three of the initial four articles, and one Democrat supported the fourth. On the other hand, for those two articles approved by the House, one garnered five Republican opposition votes, the other eight. In the Senate, all Democrats voted against conviction, and there was never any real doubt about Clinton’s acquittal in a Senate that required a two-thirds vote for conviction, particularly given that five Republicans voted against one of the articles while ten voted against the other. 

As the drama unfolded in November 1998, Democrats picked up five House seats in midterm elections that the GOP House Speaker, Newt Gingrich, thought would yield a Republican pickup of 30 seats, based on the impeachment revelations. He didn’t understand the politics of impeachment. Whereas the Andrew Johnson impeachment ensued after the president’s congressional opposition had gained complete control over both chambers, the Clinton challenge was designed as political leverage to bolster the Republicans’ congressional standing. It didn’t go over very well with the voters, and the clear lesson at the time was that  impeachment initiatives that appear nakedly partisan are going to unleash political opprobrium upon the perpetrators. 

Is that lesson still in force? Perhaps we should hope so, for the sake of the Republic. 

Robert W. Merry, longtime Washington journalist and publishing executive, is the author most recently of President McKinley: Architect of the American Century.

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