American politics (non-partisan) from the beginning to date

by Thomas V. Cooper; Hector T. Fenton

Mr. Butler then proceeded to consider the articles of impeachment. The first eight, he says, “set out, in several distinct forms, the acts of the President in removing Mr. Stanton and appointing General Thomas, differing, in legal effect, in the purposes for which, and the intent with which, either or both of the acts were done, and the legal duties and rights infringed, and the Acts of Congress violated in so doing.” In respect to all of these articles, Mr. Butler says, referring to his former definition of what constituted an impeachable high crime:

“All the articles allege these acts to be in contravention of his oath of office, and in disregard of the duties thereof. If they are so, however, the President might have the power to do them under the law. Still, being so done, they are acts of official misconduct, and, as we have seen, impeachable. The President has the legal power to do many acts which, if done in disregard of his duty, or for improper purposes, then the exercise of that power is an official misdemeanor. For example, he has the power of pardon; if exercised, in a given case, for a corrupt motive, as for the payment of money, or wantonly pardoning all criminals, it would be a misdemeanor.”

Mr. Butler affirmed that every fact charged in the first article, and substantially in the seven following, is admitted in the reply of the President; and also that the general intent to set aside the Tenure-of-Office Act is therein admitted and justified. He then proceeded to discuss the whole question of the power of the President for removals from office, and especially his claim that this power was imposed upon the President by the Constitution, and that it could not be taken from him, or be vested jointly in him and the Senate, partly or in whole. This, Mr. Butler affirmed, was the real question at issue before the Senate and the American people. He said:

“Has the President, under the Constitution, the more than royal prerogative at will to remove from office, or to suspend from office, all executive officers of the United States, either civil, military or naval, and to fill the vacancies, without any restraint whatever, or possibility of restraint, by the Senate or by Congress, through laws duly enacted? The House of Representatives, in behalf of the people, join issue by affirming that the exercise of such powers is a high misdemeanor in office. If the affirmative is maintained by the respondent, then, so far as the first eight articles are concerned—unless such corrupt purposes are shown as will of themselves make the exercise of a legal power a crime—the respondent must go, and ought to go, quit and free.

This point as to the legal right of the President to make removals from office, which constitutes the real burden of the articles of impeachment, was argued at length. Mr. Butler assumed that the Senate, by whom, in conjunction with the House, the Tenure-of-Office Act had been passed over the veto of the President, would maintain the law to be constitutional. The turning point was whether the special case of the removal of Mr. Stanton came within the provisions of this law. This rested upon the proviso of that law, that—

“The Secretaries shall hold their office during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”

The extended argument upon this point, made by Mr. Butler, was to the effect that Mr. Stanton having been appointed by Mr. Lincoln, whose term of office reached to the 4th of March, 1869, that of Mr. Stanton existed until a month later, unless he was previously removed by the concurrent action of the President and Senate. The point of the argument is, that Mr. Johnson is merely serving out the balance of the term of Mr. Lincoln, cut short by his assassination, so that the Cabinet officers appointed by Mr. Lincoln held their places, by this very proviso, during that term and for a month thereafter; for, he argued, if Mr. Johnson was not merely serving out the balance of Mr. Lincoln’s term, then he is entitled to the office of President for four full years, that being the period for which a President is elected. If, continues the argument, Mr. Stanton’s commission was vacated by the Tenure-of-Office Act, it ceased on the 4th of April, 1865; or, if the act had no retroactive effect, still, if Mr. Stanton held his office merely under his commission from Mr. Lincoln, then his functions would have ceased upon the passage of the bill, March 2, 1867; and, consequently, Mr. Johnson, in “employing” him after that date as Secretary of War, was guilty of a high misdemeanor, which would give ground for a new article of impeachment.

After justifying the course of Mr. Stanton in holding on to the secretaryship in opposition to the wish of the President, on the ground that “to desert it now would be to imitate the treachery of his accidental chief,” Mr. Butler proceeded to discuss the reasons assigned by the President in his answer to the articles of impeachment for the attempt to remove Mr. Stanton. These, in substance, were, that the President believed the Tenure-of-Office Act was unconstitutional, and, therefore, void and of no effect, and that he had the right to remove him and appoint another person in his place. Mr. Butler urged that, in all of these proceedings, the President professed to act upon the assumption that the act was valid, and that his action was in accordance with its provisions. He then went on to charge that the appointment of General Thomas as Secretary of War ad interim, was a separate violation of law. By the act of February 20, 1863, which repealed all previous laws inconsistent with it, the President was authorized, in case of the “death, resignation, absence from the seat of Government, or sickness of the head of an executive department,” or in any other case where these officers could not perform their respective duties, to appoint the head of any other executive department to fulfil the duties of the office “until a successor be appointed, or until such absence or disability shall cease.” Now, urged Mr. Butler, at the time of the appointment of General Thomas as Sectary of War ad interim, Mr. Stanton “had neither died nor resigned, was not sick nor absent,” and, consequently, General Thomas, not being the head of a department, but only of a bureau of one of them, was not eligible to this appointment, and that, therefore, his appointment was illegal and void.

The ninth article of impeachment, wherein the President is charged with endeavoring to induce General Emory to take orders directly from himself, is dealt with in a rather slight manner. Mr. Butler says, “If the transaction set forth in this article stood alone, we might well admit that doubts might arise as to the sufficiency of the proof;” but, he adds, “the surroundings are so pointed and significant as to leave no doubt in the mind of an impartial man as to the intents and purposes of the President”—these intents being, according to Mr. Butler, “to induce General Emory to take orders directly from himself, and thus to hinder the execution of the Civil Tenure Act, and to prevent Mr. Stanton from holding his office of Secretary of War.”

As to the tenth article of impeachment, based upon various speeches of the President, Mr. Butler undertook to show that the reports of these speeches, as given in the article, were substantially correct; and accepted the issue made thereupon as to whether they are “decent and becoming the President of the United States, and do not tend to bring the office into ridicule and disgrace.”