Power  /  Argument

Impeachment is the Right Call Even if the Senate Keeps President Trump in Office

Awaiting a Senate trial might curtail Trump's worst behaviors.
Senate trying Andrew Johnson for impeachment in 1868.
Theodore R. Davis/Library of Congress

Since the House of Representatives opened an impeachment inquiryinto President Trump’s dealings with Ukraine, commentators have looked ahead to two potential verdicts: one from the Senate, another from voters in 2020. But the history of impeachment suggests that the trial itself, not just the verdicts, can be an important tool for restraining presidents who misuse the authority of their office. We should measure impeachment’s success not just by whether Trump is still in office at the end, but also by how a trial itself helps to shape his behavior.

The United States has conducted presidential impeachment trials twice before. Scholars might disagree on whether the trial of Bill Clinton restrained his behavior (or whether his behavior needed restraint), but it is clear that the other trial, that of Andrew Johnson, did protect the republic even though it ended in acquittal.

Johnson, a Democrat who had run on a national unity ticket in 1864, assumed power after the April 1865 assassination of Republican Abraham Lincoln. Although Johnson had loyally supported the United States and steered his home state of Tennessee through emancipation as military governor, he proved to be a catastrophic president.

Temperamental and struttingly self-confident, Johnson’s actions were shaped by rumor and racial prejudices. Backed by a belief that the public supported him, he warred with congressional Republicans’ Reconstruction policies, issuing proclamations that were legally ambiguous and sometimes disseminated to newspapers before being issued officially. Substantively, he opposed ratification of a 14th Amendment protecting equal rights and encouraged states to vote against it.

Johnson’s lack of moral leadership extended beyond legislation: After former Confederates slaughtered black and white Republicans in New Orleans in July 1866, Johnson blamed congressional Republicans instead of the perpetrators. And in the lead-up to the midterm elections that year, the president held wild and unruly rallies where he embraced the role of victim and denounced congressional leaders as Judas Iscariots and traitors.

Northern voters rejected this hysteria, handing congressional Republicans significant majorities.

When Congress returned, Republicans divided sharply over whether to impeach Johnson or wait for the 1868 elections, in a parallel to today’s discussions over the practicality of impeachment and the likelihood of removal. Although a few Republicans introduced impeachment measures in January 1867 and the House Judiciary Committee began an investigation, Congress did not act on impeachment until February 1868.

What changed in the 13 months between the impeachment measure and the impeachment vote? Not politics, but policy.

During 1867, Congress passed three Military Reconstruction Acts, which placed 10 former Confederate states (all but Tennessee) under military supervision and responded to demands from freedpeople for the democratization of the South. Military commanders supervised a massive campaign to register freedmen to vote for new constitutional conventions where biracial delegations would remake state politics. Until those conventions did their work, Army officers in the South intervened to keep the peace and dismantle some legacies of slavery. In Louisiana and Texas, Maj. Gen. Philip Sheridan struck back at the ringleaders of the 1866 New Orleans massacre, dismissing the mayor, the governor, sheriffs and other officials. Sheridan also vacated discriminatory laws that barred black men from serving on juries.

In response, Johnson worked to block all these measures. He removed Sheridan and the similarly bold Daniel Sickles in the Carolinas, appointed pliable generals, suspended Secretary of War Edwin Stanton, pardoned hundreds of rebels, promulgated new orders limiting the Army’s ability to carry out laws passed by Congress and again urged white Southerners to resist the 14th Amendment.

While the rule of law and the balance of powers were at stake, something else hung in the balance: equal rights and the Reconstruction of the South. By December 1867, more than a half-dozen former Confederate states were in the process of completing new state constitutions that not only enacted civil rights and voting rights, but also constructed new education and social welfare systems. These states also ratified the 14th Amendment, effective once their own constitutions were in force.

Enactment of these constitutions was essential to implementing Congress’s vision of a reconstructed South based upon black-and-white suffrage and the excision of most of slavery’s legacies. Johnson’s actions and his rhetoric threatened these reconstructions and the 14th Amendment. His new military officials dragged their heels. White Southerners responded to his prodding by boycotting elections, threatening black and white Republicans and trying to derail the state constitutions, thus keeping the 14th Amendment in doubt until the 1868 presidential election. House Republicans feared Johnson’s actions would derail their efforts to reconstruct the country on a more equitable basis and, therefore, impeached him.

Their rationale reshapes how we understand the case of Trump. Traditionally, Johnson’s impeachment is seen as a failure, since he escaped removal from office. But when seen through the lens of Reconstruction, impeachment was actually a partial success. In February 1868, Johnson was fully at war with Reconstruction and in position to thwart new state governments and possibly even the 14th Amendment. But Johnson, for all his volatility, was not immune to pressure.

Johnson’s adept attorneys succeeded in protecting his tenure in office in two ways. First, they sought to delay the Senate trial. Then, they used that delay to persuade Johnson to keep his hands off Reconstruction. As the trial hung over him and then dragged on through April and May, a chastened Johnson pledged to appoint a moderate secretary of war, stop shuffling generals in the Southern states, and let the Army and African American Republicans complete their work in the South. By April, a half-dozen former Confederate states had ratified their new constitutions and asked Congress for readmission. Only then, in mid-May, did the Senate finally vote on Johnson’s fate.

Even with his acquiescence to Reconstruction, Johnson survived only by a single vote in that Senate tally. Although the 14th Amendment was not ratified until July 1868, the impeachment trial that put Johnson’s fate into question allowed freedpeople, white Southern Republicans and the Army to freely engage in the crucial work of making what some scholars call a “Second Constitution,” a refashioning of the federal government’s role in protecting individual rights through the 14th Amendment’s pledges of equal protection and due process. Most significantly, those reconstructed states provided the votes to ratify the proposed amendment, which has subsequently shaped Supreme Court decisions on desegregation, voting rights, same-sex marriage, freedom of speech and assembly, and many other basic rights we enjoy today.

Impeachment also did play a role in Johnson leaving office by weakening him politically. In 1866, Johnson had explored the creation of a new party that combined Democrats and conservative Republicans. When that collapsed, he spent part of 1867 trying to engineer nomination by the Democratic Party, his old home. But the trial helped make him untouchable, and the Democrats turned to a different candidate, New York’s Horatio Seymour, leaving Johnson off the ballot.

Analogies are never perfect. We are not now in a period of Reconstruction, or a moment when Congress and the president are primarily at war over such a specific set of laws. Nonetheless, as Johnson did, Trump threatens the nation’s stability by attacking our faith in elections and the rule of law, as well as our global alliances. His tweets and incendiary rhetoric are dangerous, and although no one can say how he would respond to a looming trial, one possibility is that he, like Johnson, might tone down his behavior to avoid removal. And this possibility makes it worth taking the political risk posed by impeachment.

Trying to judge the worthiness of impeachment solely by whether it ends in conviction and removal would be a mistake. If the presence of a trial disciplines Trump to stop encouraging foreign interference in U.S. elections and to start curtailing his destabilizing rhetoric, impeachment will have been worth it, whether it ends in conviction or acquittal, in 2020 reelection or defeat. While many will call for a speedy impeachment trial if the House votes to impeach, senators might look to the Johnson case to ask whether a deliberate process will sustain pressure on the White House to behave more responsibly, and give the president the opportunity to save — or destroy — his tenure in office.