BRIAN LAMB: David Stewart, what was Andrew Johnson, our 17th president, like?
DAVID STEWART: He was a hard man. He was intelligent. He pulled himself up from nothing; he never attended school even for a day, a totally self-made man, one who had great line, well then that's good to know, otherwise the Almighty would have a lot to answer for.
He had a rather bad disposition. He was an angry man and he was rigid. And those were qualities that served him terribly as President. He was smart, although self-educated, he knew the Constitution. He understood laws. He had a lot of political experience. He had held most positions you could hold in this country and been elected to most of them.
So, there's a good deal to admire in him. Unfortunately, as President, his qualities probably would have been unfortunate any time, but at that moment in history they were a terrible mismatch so...
LAMB: Where did it start politically for him?
STEWART: In Tennessee. Greeneville was in eastern Tennessee. He had opened a tailor shop and made a success of it, ran for local office - alderman, mayor, state senator - moved up the ladder, became a Congressman and a Senator.
And his sort of moment of public attention was at the beginning of the Civil War when almost all of the Congressmen and Senators left from the South. They all went back to their home states. Tennessee did secede although by a fairly close vote, they had a referendum and it was reasonably close, but Johnson refused to leave the Senate which did get attention. Here was a Southerner who was remaining loyal to the union.
LAMB: What was his family like?
STEWART: As a boy or as a...
STEWART: Yes. His father died when he was very young. I think he was only three or four. He didn't really grow up in the family much. He was apprenticed out a very early age - 9 or 10. He ran away from his master. He didn't like being an apprentice. He ultimately had to come to terms with the master, so, a strong independent streak there.
His own family that he made with his wife was a little bit sad. His wife in the White House never left her room. She came downstairs once for a grandchild's birthday party I think it was. And he would see her every day. He always would go visit her a couple of times during the day.
He had a couple of sons who ended up badly. They became alcoholics and didn't end well. His daughters were quite admirable, had families of their own and one served as his hostess in the White House and were admired even by people who didn't like Johnson.
LAMB: How did he become President?
STEWART: He had been military governor of Tennessee, appointed by President Lincoln, and as I said was admired for having stood by the union. And in the 1864 election, Lincoln feared that he would lose.
The war had dragged on a long time. He was being opposed by a war hero, General McClellan. So, he did what we would call today a move to the middle. He figured all the good abolitionists and Republicans had to vote for him. They certainly couldn't vote for the Democrats.
So, he wanted somebody to appeal to Democrats. At that time, Republicans were the liberal figures and Democrats were the conservative ones. You'd have to wrap your mind around that. So, he reached out to Johnson whom he didn't know particularly well as a southern Democrat who was pro-union and would broaden his appeal.
And it worked or else Lincoln would have won anyway. He did win. It wasn't a smashing win. He got 55 percent of the vote and that's only in the loyal states. The southern states, of course, weren't voting for him and he wouldn't have gotten any votes there.
So, I think he'd been right as a politician to be concerned. And then, of course, Lincoln was assassinated just six weeks into his second term as President and Johnson, who was not especially well-prepared for the job was President.
LAMB: But you said he had all those jobs from alderman to governor, Senator, Congressman, all that but wasn't prepared.
STEWART: It's an interesting problem. We tend to want Presidents who've had experience in government. And Andrew Johnson is the example of experience isn't everything because by disposition as I said he was ill-suited. He wasn't used to taking a national perspective. He was basically a Tennessee guy. And I think when he became President of all the people, that was unnatural to him. He had a lot of trouble with that.
LAMB: Where was he when the assassination occurred in April of 1865?
STEWART: He was in his hotel room. And the assassination, of course, was a larger plot than just killing Lincoln. They sent someone to kill Secretary of State Seward. And they sent someone to kill Johnson.
Johnson was fortunate that the man who went to kill him, George Atzerodt, lost his nerve and didn't even knock on the door. He had a couple of drinks in hotel and then vamoosed up to Gaithersburg, Maryland.
So, he just slept through it until he was awakened at the middle of the night with the terrible news. He was sworn in as President the next morning when official word came that the President was dead.
LAMB: What happened then in the early part?
STEWART: He initially struggled to find his feet. I think having Seward - Seward was terribly wounded in the attempt on his life and was not available to him. And so, he started out being very vengeful in his public statements. He made it clear he wanted to hang a lot of Confederate leaders.
And when Seward recovered and came back, it appears he basically persuaded Johnson that that was not the right public stance to take. And at that point Johnson sort of did a 180 and came around to the view that we should be very charitable towards the south. Of course, that was what Lincoln said.
But it translated into actions that surprised and upset many northerners and I think Lincoln would have found very odious.
LAMB: From what you know of him, what attitude towards slavery did he bring to the vice presidency and then to the presidency?
STEWART: He had no problem with slavery. He owned slaves. One of the things he tended to say in his first year in office when southerners would come to see him, former Confederates would come to him for pardons, it's something he spent several months doing was meeting with rich former southerners who could pay for their pardons and he often told them, "If you'd only listened to me and stayed in the union, we'd still have slavery." And he thought that would be great.
So, he had no problem with it and underlying it to be honest, he had really very racist attitudes which came out several times in public statements but also in his policies. He really did think that the freed slaves were a lesser form of human and it shaped everything, and it was tragic.
LAMB: You point out that at the beginning of Lincoln's second term, and he lasted only six weeks, that in the Senate there were something like 42-43 Republicans and 11 Democrats and in the House 143 Republicans and 49 Democrats. But in your first chapter, Bad Beginnings, prior to the assassination, what happened when Andrew Johnson was sworn in as Vice President?
STEWART: He did start on the wrong foot. He wasn't feeling well in the morning of the inauguration. He got to the Capitol; he had an attack of nerves which was odd. He'd been in the Senate as a Senator for years and he'd done an immense amount of public speaking.
And so, he asked for some whiskey. And the account we have is that he downed three tumblers full of whiskey which even for a heavy drinker would have an impact in a short period of time. And so, he went out to take his oath of office and everybody in the chamber could tell he was drunk.
He spoke erratically. He said things that didn't make a lot of sense. It was a humiliating experience, so humiliating, frankly, that he left town for at least a week thereafter and just stayed in the state, actually in Silver Spring, Maryland.
And when he came back into town he was very invisible until the time of the assassination just because it had been such a mortifying experience.
LAMB: Well, you have some quotes in here and I'll read them back. Hannibal Hamlin was the Vice President the first term and he met him as you say before he went out on the Senate floor. "Mr. Hamlin," he said, "I am not well." This is Andrew Johnson. "I need a stimulus. Have you any whiskey?"
Vice President Hamlin, a teetotaler, had banned the sale of liquor in the Senate restaurant, to accommodate his guest, he sent out of the building for a bottle. By the way, where did you get this?
STEWART: There were accounts by, I believe, Hamlin's son but there are first person accounts of this exchange.
LAMB: When the whiskey arrived, Johnson tossed down a tumbler of it straight. Feeling reinforced, he announced that his speech at noon would be the effort of his life. Later, you write Johnson's face glowed a luminous red. His sentences were incomplete, not connected to each other at the biggest moment of his life and on the most prominent stage he had ever occupied, the man was drunk.
Your President is a plebeian, Johnson announced. I'm a plebeian, glory in it. Tennessee has never gone out of the union. I'm going to talk two and a half minutes on that point and want you to hear Tennessee has always been loyal. Were they loyal during the Civil War?
STEWART: Many Tennesseans were. And Tennesseans fought on both sides, it was kind of a split between the east and western part of the state, but the government officially seceded.
LAMB: There is something over history that rings on this next thing you've written. Sitting closest to the desk, the cabinet secretaries began to mutter among themselves, all this is in wretched bad taste. The man is certainly deranged. There is something wrong. He spoke for 15 minutes. Anyway, was there a lot of publicity on his drunkenness?
LAMB: And what impact did that have? Is there any evidence?
STEWART: In the next almost four years when he would give an erratic speech which he did on occasion, particularly when he'd get out of the White House and travel around the country. There's a famous period in 1866 when he did a lot of public speaking, a lot of people reacted that he was drunk again. And it was based on the experience from the inauguration.
LAMB: Was he an alcoholic?
STEWART: I think not. Was he a heavy drinker? Yes. You can school yourself to be a heavy drinker. And he got out of control on that occasion. We don't have other instances where people thought he was essentially drunk on duty.
He was a proper man, I mean, one of the things I had to get used to about him was he was a tailor. As a result, he had a great sense of clothes and he always looked great. And his clothes were perfect. A great contrast with Lincoln, of course, who was famously sort of shambling and his clothes never fit quite right because he was an unusual size.
So, he had a very tidy appearance which is inconsistent with drunkenness. So, I think people would have noticed if he had been inebriated on other public occasions.
LAMB: So, he becomes President. What's the United States of America like at that point and what problems does he face?
STEWART: Well, we're still winding up the war. There's a significant Confederate army. Joe Johnston's army is in the field. Lee has surrendered just days before, so he has to make some peace and there's another group in Texas, takes a little longer to get to surrender and give up their arms.
He has a lot of struggles with Ulysses Grant over the treatment of the former Confederates because Grant gave his word to the soldiers that they would be treated benevolently, wouldn't be punished for their role in the war if they surrendered. And as I said, Johnson didn't want to do that. He did want to hang some of them. But Grant succeeded with that.
And then the first order of business was really what to do with the states, we had no state governments down there. The south was occupied. It was an occupied hostile territory. So, Congress was not in session. This is an era when Congress only sat four or five months a year through the winter basically and into the spring.
And Johnson went ahead and began reconstituting state governments basically on his own. Lincoln had done that with one or two, I guess, Louisiana during the war but he had war powers then. It was an emergency and the President has war powers. It wasn't clear at all that Johnson had the power to do that.
It was very controversial because what happened was the former Confederates were elected and took control of the new governments. They were the natural leadership of the area, so you had lots of former generals and former Confederate Congressmen and cabinet members who were now leading their states and managed to get elected Congressmen and Senators.
LAMB: What was his plan about reconstruction and what was reconstruction?
STEWART: Reconstruction in concept was rebuilding the union. Everybody realized that after killing each other for so many years, well over half a million people were killed, comparable numbers today would be 30 million, I mean, in terms of the proportion of the population. It was an immense period of bloodletting and the result was a tremendous amount of hate between people.
So, something had to be done to fix that and also to create a government structure that didn't allow for slavery. The 13th Amendment had been adopted. Slavery had been abolished. And that's basically all Johnson wanted to do.
He wanted to have state governments established. They could not have slavery because the 13th Amendment made that unconstitutional. And beyond that, his view was they were on their own. And that was what the Constitution intended from 1787 and that was what was right. And if they wished to discriminate against black people, if they wished to disadvantage the freedmen in any way they chose, it was their business and they were answerable to their own voters.
LAMB: Why was he against the Freedmen's Bureau and what was it?
STEWART: The Freedmen's Bureau was designed to assist both white and black refugees in the south. The war was mostly fought in the south, so that's where the devastation was, not everywhere but lots of places. So, people had been driven from their homes, certainly, the ex-slaves were now free.
They were supposedly on their own and they had usually no more than the clothes on their back, no education, no tools, no weapons, they could have used some weapons. And so, they had to find their way and the Freedmen's Bureau was designed to get them to a place where they could.
And in a few areas, they actually confiscated estates that the army had thrown away, thrown out the previous Confederate owners and chopped them up into land parcels. This is where the phrase 40 acres and a mule came from. That was one of their programs. They also tried to set up schools.
LAMB: You have a great cast of characters in your book, Impeached. Who were his friends? Who were his enemies, out of the box?
STEWART: His friends were Democrats and southerners. And they were - Seward had been a prominent Republican leader but threw in with him very early. And it's a complicated story about Secretary of State Seward, because he had been seen as a great abolitionist leader and then he turns out to be essentially the helpmate of this very anti-freedmen President.
His adversaries, the most significant one and the one I found most compelling was Thaddeus Stevens from Pennsylvania. He was a Congressman, a fascinating guy. He had been born with a club foot and had had to overcome that at a time when being disabled was a real mark. You were thought to have the mark of the devil on you.
He was incredibly smart, tough and totally devoted to the causes of underdogs. Now, we tend to think of people devoted to the underdog as sort of namby-pamby sort of soft-hearted people. People were afraid of Thaddeus Stevens. They were afraid to debate with him in Congress because he was so quick, he was so incisive, and he'd just leave them gasping on the floor with a quick repartee which would make everybody else laugh.
So, he was a powerful guy within Congress simply by force of personality and talent. He was devoted to the abolitionist cause. He was an inveterate hater of slavery and he believed in equality in all things. So, he in many ways the heart and soul of the reconstruction effort that built in Congress and ultimately the impeachment effort.
LAMB: What do you think President Johnson at that time saw in Thaddeus Stevens and how big a story was it that he lived with a woman who was an African-American, who was supposedly his Housekeeper but through the years people have suggested that they had some kind of a relationship that no one has ever proved and that he wasn't married.
STEWART: Mrs. Smith. The Mrs. Smith story has never been confirmed that it was a personal relationship, but I always thought Fawn Brodie's biography pointed out the best evidence we have that Stevens had a portrait painted of her.
And if she was only the mistress of his House as a servant, you don't get portraits painted of people like that. Portraits are painted of people you care about. So, I'm inclined to credit it although I agree the evidence is slim.
That would have appalled Johnson. He's a southerner; he knew that there was crossing of racial lines in personal relationships. There was a Vice President from Tennessee who took up with a black woman and lived with her openly. A previous one, Johnson, I think that was Richard Johnson.
But it would have annoyed him. It would have alienated him, but it was much more I think simply that they really were political opposites. He recognized both that Stevens was going to be against him on everything and, frankly, that Stevens was a formidable opponent. He could muster his troops in a way that others couldn't.
LAMB: Why did President Johnson keep Edwin Stanton as Secretary of War?
STEWART: It's a great question and it's one you agonize over. Stanton was another tough guy, very talented, smart lawyer; Lincoln had called him his Mars for the God of war as Secretary of War and was incredibly productive and efficient and effective as the senior military bureaucrat, a civilian bureaucrat in the military world.
So, I think that was part of it, that Stanton was just good at his job. I also think Stanton was probably just flat out rude much of the time. He was a difficult man. He didn't put up with fools at all and I think he probably managed to intimidate Johnson a little bit, which wasn't easy. Johnson was a tough guy himself but I think Stanton probably did.
Politically, I think in the initial months getting rid of Stanton was not a great idea because he needed to figure out how to run the government. By the time he wanted to get rid of him, he was at war with Congress and it became the political flashpoint that led ultimately to the impeachment effort.
LAMB: I want to get these dates right so, put it into perspective, the 13th Amendment was adopted December the 18th 1865 which had been the end of that first year as President. Did he support the 13th?
STEWART: He didn't oppose it.
LAMB: The 14th Amendment, the Due Process and Equal Protection Amendment was adopted July of 1868 in his last year. Did he support that?
STEWART: No. He opposed that.
STEWART: He thought it was dangerous. Most of the provisions of the 14th Amendment, we know equal protection and due process of law which section one, but there were a couple of provisions that dealt with how are we going to deal with the former Confederates and how are we going to structure our politics now that we are reunited. And he disliked those provisions. He thought they were too restrictive and not good for the south.
So, that was a principal reason. And, actually, much of the opposition of the 14th Amendment back then was over those provisions, not over equal protection under law and due process.
LAMB: The 15th Amendment which is another one of the Civil Rights Amendments didn't pass until March 30th, 1870 and he was gone by then.
LAMB: So, before we go to you telling the story about impeachment, you've been, before you wrote this book, deeply involved in an impeachment, but to start with, you clerked for three different judges. Who were they and what years were they?
STEWART: A while ago, I clerked for two appellate judges here in Washington - David Bazelon and Skelly Wright. And then I was lucky to clerk at the Supreme Court for Lewis Powell.
LAMB: What did you take away from Lewis Powell?
STEWART: Just remarkable admiration. He's an impressive person. He's a very fine judge. Now, as I approach the age, I think with some resonance of what he said to me once which was you have no idea how hard it is to keep an open mind when you're 71. But he tried to, and he recognized that he didn't always, but he did try to.
And he tried to see both the legal implications of case but also the human implications of a case and I think a great judge needs to look at both.
LAMB: When did you first see impeaching of a public official up close?
STEWART: I served as defense counsel for a district judge, trial judge in South Mississippi, Walter Nixon, Jr. in the late 1980s. He had been convicted of perjury before a grand jury, a lengthy and somewhat ill-conceived investigation and was actually imprisoned at the time of the impeachment effort, so that was a real barrier for us to work with.
But he felt it was a wrong conviction, it was a bad case and I concurred. So, we resisted the impeachment both on the House of Representatives and in the Senate. It went to a trial on the Senate side.
LAMB: What happened in the House and why did it have to start in the House, the impeachment of Walter Nixon? No relationship to the President.
STEWART: Correct. The constitution basically sets up the House if you want to use a criminal analogy as the grand jury; it brings the charges and has to basically agree on reasons why a President should be removed from office, or a judge.
And once the House does that work, the Senate then tries the case. In our case, we had hearings before a House subcommittee and to be honest, the subcommittee chair was very troubled by the case, didn't care for it and he kept us there for almost a year just reconvening hearings and wanting to hear more evidence, and ultimately, he went along with it with the impeachment case and it was approved by the House and then sent over to the Senate.
LAMB: How many votes do you have to have in the House in order to impeach somebody?
STEWART: Simple majority is enough.
LAMB: One vote.
STEWART: By one vote is plenty.
LAMB: And then once you're impeached what happens next?
STEWART: The Senate gets the case. The House appoints its managers who serve as prosecutors on the House side - on the Senate side, excuse me - in whatever proceeding they have.
These days since the last 30 years or 40 years now, the Senate does not convene judicial trials before the full Senate but appoints a committee to hear the evidence. It's a procedure I found constitutionally infirm but failed in that argument. And then the Senate does hear closing arguments and votes.
LAMB: Let's jump way ahead. Andrew Johnson in the House of Representatives, what happened on the vote to impeach?
STEWART: It was a party line vote. The Republicans voted to impeach, and the Democrats did not.
LAMB: I think I had it written down here something like 42 to 11. No, that's the Senate.
STEWART: That's the Senate.
LAMB: It was 143 to 49, something very close to it.
STEWART: Yes, party line vote.
LAMB: And then what happened in the Senate?
STEWART: In the Senate, they had a long trial, four weeks. And he was ultimately acquitted - acquitted is the right term - by a single vote and they needed a two-thirds majority to convict him and remove him from office.
LAMB: Two-thirds present or two-thirds of the total number of Senators?
STEWART: Two-thirds present.
LAMB: And what date would that have been that he was finally convicted, I mean, acquitted, excuse me, jeez, (inaudible) acquitted.
STEWART: Precise date is going to escape me, I believe it was June.
LAMB: Of 1868, near the end of his term.
STEWART: 1868. Yes, pretty close to election time.
LAMB: This is also out of context, but for you to explain it might be interesting. Each of them according to the myth ended his life a broken man, crushed by vindictive radical Republicans, quote, "not a single one of them escaped the terrible torture," wrote John F. Kennedy in Profiles in Courage quote, "a vicious criticism engendered by their vote to acquit." And then you say it is a myth.
One of the most popular history books in our lifetime did what? What's the myth?
STEWART: It's a scandal. It's a terrible - the chapter on Johnson, I won't speak beyond that. The chapter on Johnson should be expunged from every library in the country. It focuses on fellow named Edmund Ross who was credited with casting the single vote that saved Johnson's tail. And it calls Ross' vote the most heroic moment in American history.
I actually thought it was bought, that his vote was purchased. And saving Johnson I think was not a heroic moment. And Profiles in Courage was a campaign document. It was prepared to support Kennedy running for President.
It is not a work of history. It is not a responsible work of history. It gets a lot of things wrong and I wish people would stop reading it.
LAMB: Did he read it, I mean, did he write it?
STEWART: No. It was written by Theodore Sorensen. I think he probably had help from other people who fed him history materials, but at the very end of his life Sorensen admitted that he had written it. And he insisted that Kennedy had gone over the entire book and had made some corrections and changes.
LAMB: But are there seven radical Republicans, seven radical Republicans that voted to acquit?
LAMB: You say that it was a myth that they were broken and destroyed.
STEWART: Correct. Ross went back to Kansas. He ended up as territorial governor of New Mexico for the Democrats which was where he probably belonged.
A number of the other Senators ended up resigning because they decided not to pursue their careers. They were not broken men in any way, I mean, this melodramatic story was just good theatre but not accurate.
LAMB: Again, Andrew Johnson, the Democrat and these were Republicans that voted to acquit him.
LAMB: He needed 19 votes. One of them interestingly enough who voted to acquit was a man named Thomas Hendricks who was Cleveland's Vice President, voted to acquit, he was a Democrat.
LAMB: And then the other thing was Henry Wilson who was Grant's Vice President voted to convict.
LAMB: But, I mean, there's a lot of great names and Justin Moral of the Moral Act was a man who voted to convict him. I just wrote this down, John Sherman who was the brother of William Tecumseh Sherman.
LAMB: And, by the way, while we're on that name, what role did he play in all this?
STEWART: General Sherman?
LAMB: General Sherman.
STEWART: General Sherman was a witness to some of the allegations about Johnson's meddling with the military and was a witness in the proceeding in the Senate. And he was expected to be very good at defending the President and he didn't defend the President the way the President's lawyers had hoped.
In fact, his testimony was so unhelpful, unharmful to the impeachers that they didn't even cross-examine him. He was in a terrible position. He sort of sympathized with the President but he also had a terrifically close relationship with Grant. And Grant and Johnson were really at loggerheads so...
LAMB: What was Johnson's position in the Johnson, I mean, Grant's position in the Johnson administration?
STEWART: He was general in chief of the army. And so, the real crisis developed because the army was in the south trying to enforce all of these laws that Congress had adopted over Johnson's vetoes to protect the freedmen, to take care of the ex-slaves, make sure they weren't shot down in the street, to give them the vote, to give them a voice in their governments.
And so, the generals who were in charge often would intervene to enforce the law. And as soon as they did, Johnson would toss them out. And he ended up removing four of the five who had initially been appointed.
This upset Grant tremendously both because he thought they were good officers doing what they should do, but he also had become a believer in ending slavery. He had been not much of an abolitionist before the war, but he came around. And Stanton was infuriated by it.
So, both Stanton and Grant basically developed a program of resisting Johnson from within. They were at some level profoundly disloyal to their President.
LAMB: As you know, you wrote the book, it's very complicated, there's a lot to it, why did you want to write a book on impeachment?
STEWART: I wanted to write a book about this case because when I had started my case, I read all the prior trials and this case made no sense. I couldn't figure out who was arguing about what. You read the legal arguments, they're clear on their own but they don't tend to fit the facts or what's going on.
And I finally concluded that it was sufficiently confusing, that it wasn't going to help either side in my case, so I went past it and just moved on to things that mattered to me. But it always bothered me. Here was this huge moment in our history, this Presidential impeachment that I figured if I didn't understand it, most people didn't understand it very well.
So, I thought it was something I could dive into. Also, I had done a book on the writing of the Constitution, so this is a moment where the Constitution mattered a lot, really made all the difference. And so, I wanted to see what that felt like.
LAMB: Our first visit was when you did a book called Summer of 1787 the constitutional convention in Philadelphia. And other books you've written include besides your novels.
STEWART: American Emperor which is about Aaron Burr's treason trial and Madison's Gift which is about James Madison and his five great partnerships.
LAMB: And are you working on another one now?
STEWART: I am. I'm working on George Washington.
LAMB: It's a small task.
LAMB: Let's go back to Andrew Johnson as President, something called the Tenure of Office Act is in his way for some reason, explain all that.
STEWART: Yes. It was enacted to be in his way. It was a brainchild of Thaddeus Stevens. They knew in Congress, the Republicans who were opposing Johnson, they knew that he was scheming against them and that he was firing lots of patronage employees.
This was an era of tremendous patronage and so, the Republicans had won the 1864 elections, so all of their offices holders were there, and he was replacing them with Democrats which was driving them nuts. I mean, the whole point of winning was to get the jobs.
So, they adopted the Tenure of Office Act basically to make it hard for him to do that. And it focused on this ellipsis in the Constitution and I sort of love this. The Constitution is very clear how you appoint these senior officials, a cabinet official, the President appoints, and the Senate confirms.
But it doesn't say anything about how you get rid of them. And when the first Congress was setting up the government, they got wrapped around the axle on this. They had a lot of trouble figuring out how should we do this and there was an argument that it should be the mirror image of the appointment process, that you should remove the President by having the President tell the Senate I want to get rid of John Smith and the Senate would have to confirm that.
Other people said no, that's too clumsy. The President needs to control the people who work for him and he needs to fire them, be able to fire them and that's what was done.
But Stevens is smart enough to know that there was a respectable argument that it was constitutional to have Senate approval required for removing a senior officer. And that was what the Tenure of Office Act required. It also created a criminal penalty for violations of it and then added just because Stevens was a good lawyer that it was a high crime and misdemeanor which is the language from the impeachment clause of the Constitution, of course, to violate the statute.
So, it was a trap that was set for Johnson. And Johnson was way too smart not to know that. He knew that if he fired Stanton which he ultimately did, he first tried to just remove him under the procedures of the Act and he suspended Stanton. He sent the notice to the Senate and asked them to confirm his removal. The Senate didn't. And Johnson stewed about that for a time and then just removed him.
LAMB: When did President Andrew Johnson know they were out to get him and impeach him?
STEWART: Well, there had been efforts to impeach him before, what ended up in the Senate trial, at least two. One was weird, and we needn't talk about it much. It was run by a crackpot. The second was a more serious one and it had just been in the fall of 1867. And it was led by Republicans, of course, who really thought his policies and his performance in office was a disaster.
And so, they basically wrote that up as impeachment articles. It was reported by the committee that heard it, the Judiciary Committee, and then on the floor the minority member of the committee made a very powerful argument that if we just remove him because we disagree with him; we're never going to stop having to argue about whether we should remove the President. There has to be some substance, there has to be something specific. There has to be a crime.
To be honest, the framers, I don't think really thought that when they wrote the clause. But that's what this fellow made, and it was a persuasive argument for the Congressmen, and so that effort failed by a pretty wide margin. I think a majority of Republicans opposed it.
So, they'd been to the well twice. But then when he fired Stanton, Stevens and others think, "OK, we've got them now. He violated the statute. We've got a crime. It says it's a high crime and misdemeanor. Now we can move against him."
LAMB: By the way, how long was that Tenure of Office Act a law?
STEWART: Well, in different guises, it was a law for about 50 years, or 45. It was amended significantly when Grant becomes president. He says, "You've got to change this law. I need to be able to fire people, my senior people." And they did. But they left some provisions of it in effect. And those remained in effect until the 1920s, when they came before the Supreme Court under a challenge and the Supreme Court said it was unconstitutional.
LAMB: Reminder, April 15th, 1865, Andrew Johnson becomes president. When is the first - you have the articles of impeachment in your book, 11 of them. When were those introduced and by whom in the House of Representatives?
STEWART: Well, it's slightly out of sequence the way it happens in history. They vote to impeach him and remove him from office without having specific articles in front of them. Everybody knows what they're going to charge. But they haven't written them up yet. They move so fast. They're so angry.
And a couple of days later, Stevens presents the articles of impeachment. They are amended and then he adds another one at the end. But the House proceedings, I think, lasted no more than four days. It was very fast.
LAMB: What year?
STEWART: 1868. This is right in February of 1868.
LAMB: At this time, by the way, does Andrew Johnson think he's going to run again?
STEWART: He hopes to. He hopes to run as the Democrat. He knows the Republicans will not nominate him. He thinks he's done what Democratic voters wanted him to do. And if you've got the southern states back in the union, he thinks he's got a shot.
LAMB: Who else in and around Washington at that time thinks they're going to be President?
STEWART: The Republicans wanted to have Grant. And he's not a wildly politically ambitious guy. He's never been in politics and he's had a humble career until the Civil War started. But I think he is frankly appalled by Johnson as president and has come to terms with the fact that he is going to be a candidate for the office.
LAMB: So once those 11 articles are introduced and the vote is taken, the articles are introduced after the vote?
LAMB: And how long did they have hearings or did they hearings and discuss it all?
STEWART: No hearings.
LAMB: It went right to the Senate.
STEWART: This is Thaddeus Stevens. He did stuff. They got it done.
LAMB: It went right to the Senate.
STEWART: Went right to the Senate.
LAMB: So how did that work once it got to the Senate?
STEWART: Everything slowed down, and it should've. The House was pretty fast. They gave both sides, you have the House managers and then Johnson appoints a number of defense lawyers starting with his attorney general, Henry Stanbery. And the Senate gives them time to prepare their case. Through this whole period, you have a tremendous amount of publicity as you can only imagine.
So, everything about the case is already in the press. And I think after about - it takes about six weeks before the trial actually begins.
LAMB: You've got to tell the Stanbery story in the Supreme Court. Congress responded in kind one of vacancy arose on the Supreme Court in the spring of 1966, Johnson nominated Henry Stanbery.
LAMB: I mean it is - when I read this, you envision today and what would happen if this kind of thing would happen today.
STEWART: The Republicans did not want Johnson to have an appointment to the Supreme Court. So, a vacancy arose. And he said he wanted to nominate Stanbery who was a lawyer from, I believe, Cincinnati or from Ohio, anyway. And Congress quick enacted legislation eliminating the vacancy and saying the Supreme Court was only eight. Justices no longer nine.
And just to make sure that he would never get an appointment, they then included a provision that said, "If there should be another vacancy" - I misstated. When the next vacancy happens, the six of the court will shrink to seven. So that was insurance that in case somebody else left the court or died in office, Johnson wouldn't get that appointment either.
LAMB: Didn't Johnson veto that bill?
STEWART: He vetoed most of the bills.
LAMB: And then what happened?
STEWART: It passed over his veto.
LAMB: Define a radical Republican, by the way, because that's intertwined in this one.
STEWART: Yes. It's a soft definition. I think they were the angriest Republicans to people who were most unhappy with Johnson. They were the most devoted to helping the freedmen who had been slaves. And within Congress, you know, there were obviously radical Republicans, and then it's a spectrum.
And probably the hardcore of what you would call radicals were never more than a third of the Republicans. But they were the forceful ones. They had leadership positions like Stevens because he took it. And they were the true adversary for Johnson. And their challenge was always to bring the rest of the Republicans along.
LAMB: When they finally got to the trial in the Senate and you've been there, you've done that, what were the circumstances? I know one of the things that you write about is that Ben Curtis, a former Supreme Court Justice defended Andrew Johnson.
STEWART: That was powerful. He was a Supreme Court Justice. He'd left the court. But he had been a justice and was from Massachusetts. Everybody knows what that means during Civil War times, the abolitionist stronghold. But even more powerfully, he had been a decanter in the Dred Scott case, which was one of the causes of the Civil War, was when the Supreme Court upheld slavery in the Dred Scott decision in 1857.
So simply having him stand up on behalf of Johnson was a powerful statement that Johnson had adherents who were not sort of crazy pro-slavery people. He also made a very strong legal argument on the Tenure of Office Act. He said, I don't think it's constitutional. The president didn't either."
But you don't have to decide that. All you have to decide is did he have good reason to think it was unconstitutional. Even if you think that's the wrong position, is it rational? Is it possible? And if it's just possible, then his actions were justified.
LAMB: How long did the trial go on?
STEWART: About four weeks.
LAMB: Who led it, the House members on the floor of the Senate to carry out the trial?
STEWART: It was most unfortunate. Stevens was an old fellow at that time in his 70s and sick. And you could - people watched him decline. The newspapers were sort of on a death watch describing how bad he looked every day. And he really couldn't perform in the courtroom. He was just too weak.
And so, the man who took control of the case was a first-term congressman from Massachusetts named Ben Butler who was a colorful character but not a great character. He had been, had a checkered career as a political general during the war. He was known as Beast Butler for the way he treated the occupation of New Orleans. He was reputed to have stolen the silver in the House he occupied there. His military achievements were modest at best.
He was a clever lawyer. But he was not a judicious lawyer. And I think he tried the case badly, speaking as trial lawyer. And he was a bad choice.
LAMB: So how did they pass that first conviction? He had 11 articles and I think you described earlier that they passed the 11th one first.
STEWART: They addressed the 11th article first because as the case went on. And one of the weird things about a Senate trial having lived through one is, you know, lawyers are used to, you know, you don't chat with a judge offline. You don't chat with the jurors. You - everything is formal, and everything is in the record. Well, in Congress, it's not like that. They're friends or they're at least colleagues, and so they're chatting all the time.
And the House managers are colleagues of the Senators who are the jurors. So, they're talking all the time, and I think the House managers decided that their best chance was on the 11th article which was what I call a catch-all article. It included a bunch of allegations. Very tough sort of thing to defend against, including the Tenure of Office claim concerning Stanton.
But also, some of the more generic accusations that Johnson really was tearing up the country and disregarding Congress, he had called this Congress illegitimate because the Southern States were not represented.
That was challenged. So, they felt that because it had multiple accusations in it, they might pick up the most support with it and they fell one vote short.
LAMB: Yes, 35-19 was the vote.
LAMB: Did they pass all 11 before it was over?
STEWART: They voted on two more, Article 2 and then Article 3, which had the same vote.
LAMB: What was President Johnson's reaction to this?
STEWART: He was pleased. He wasn't ecstatic. He didn't go - it wasn't his makeup, really, and he didn't go into public and trumpet it. He had had to pull in his horns a bit. One of the things that people at the time noted was during the three months or so of the impeachment process, and I misspoke earlier though. The final votes are in May, not in June.
He was not anywhere near as aggressive or controversial as he had been. And he was reassuring people, "Oh, you know, I'm not going to do terrible things." And instead of - he had appointed a very inappropriate guy to succeed Stanton as Secretary of War. He overruled himself and appointed a former union General or a union General, John Schofield, who was pretty acceptable and pretty presentable.
So, he was calibrating his behavior in a way that what made him less threatening and less disturbing. The rest of his presidency, he became a lame duck very fast. He didn't behave great for the rest of it, but his powers were pretty limited by then. I think the impeachment proceeding had clipped his wings.
LAMB: How much did he pardon the south?
STEWART: Well, his principal activity was this process I alluded to where in his first few months as President, in the fall of 1865, he setup a procedure where a wealthy person could come and get a personal pardon from him. There were other provisions, they had to take an oath of loyalty and they had to pay and …
LAMB: Directly to him?
STEWART: Not to him personally, but to the government. And lots did. And he spent a couple of months basically doing this all day.
His anteroom would be described as just filled with southerners there to pay court. And he had been a poor boy. He always had a great class resentment towards the aristocracy of the south. In here, all of these people he pretty much hated all his life, were crawling to him. Came to him on their knees and the accounts are he enjoyed that tremendously.
LAMB: Why did he pardon Jefferson Davis?
STEWART: That's a different question. It comes later. I don't remember the time exactly. It's at least two years after the war, maybe three. Davis had been in prison. He's not a threat.
I think the fury about the war and the resentment is beginning to ebb a bit. And, you know, the case for prosecuting him involves precedents that I don't think we really wanted to make, because you couldn't prosecute him and not prosecute Robert E. Lee or not prosecute all these other people.
LAMB: This book was first published in 2009.
LAMB: Is it available? Is it in print?
STEWART: It is in print. It is available wherever fine books are sold. And it's available in an e-Book and audio version as well.
LAMB And it's called Impeached: LAMB: And it's called Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy. Our guest has been David O. Stewart and he's also the author of The Summer of 1787. And we thank you very much.
STEWART: Thanks for having me.