TBA Law Blog

Posted by: Donald Paine on May 1, 2013

Journal Issue Date: May 2013

Journal Name: May 2013 - Vol. 49, No. 5

Our own Andy Johnson missed conviction by one vote in his Senate trial. How did that come about?

President Johnson had a fractious relationship with radical Republicans in Congress. Heated exchanges reached the boiling point under the Tenure of Office Act. It forbade the president from firing certain cabinet members without Senate consent. Johnson unilaterally fired Secretary of War Edwin M. Stanton on Feb. 1, 1868.

As you know, the House of Representatives has “the sole power of impeachment.” Article I, Section 2, of the Constitution so provides. The House vote on Feb. 24 was 126 to 47 in favor of impeachment.

Trial of the impeachment is in the Senate pursuant to Article I, Section 3:

The Senate shall have the power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried the Chief Justice shall preside, and no person shall be convicted without the concurrence of two-thirds of the members present.

Article II, Section 4, provides in pertinent part:

The President … shall be removed from high office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

The Johnson trial began on March 30, with Chief Justice Salmon P. Chase presiding. It was not until Saturday, May 16, that a vote was taken — on the last of the 11 articles of impeachment. All 54 senators were present, with some carried into the chamber despite severe or even terminal disease. The vote? Thirty-five: “Guilty.” Nineteen: “Not guilty.” That’s one vote shy of the 36 needed to convict.

The Senate adjourned until May 26, when it took two more votes — on the second and third articles of impeachment — with the same one vote short result. The majority threw in the towel and adjourned sine die. The trial was over.

Johnson failed to win nomination for another term. But he was bored when he returned home. In 1875 he won election as United States Senator from Tennessee. Hans L. Trefousse commented on this ironic development in his 1989 biography, Andrew Johnson: “Thus the former president returned to Washington in March to be sworn in by that very body that not so long before had tried to convict him and deprive him of the right to hold office.”

Andrew Johnson died that summer on Saturday, July 31, 1875. He is buried in Greeneville.

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute.