Impeachment

Vice President Pence's Profile in Cowardice

Senator Edmund Ross' vote against impeachment was no "Profile in Courage."

|The Volokh Conspiracy |

On Thursday, Vice President Mike Pence had an op-ed in the Wall Street Journal praising the "courage" of Republican Senator Edmund G. Ross of Kansas, who broke with his party during the impeachment trial of President Andrew Johnson. Drawing heavily on President John F. Kennedy's profile of Senator Ross in Profiles in Courage, Pence praises the willingness of a Senator to oppose a "partisan impeachment."

Yet as Gerard Magliocca explains at Balkinization, there was nothing particularly courageous about Senator Ross' vote. Rather, Magliocca explains, Ross was something of a "coward."

The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnson's determined opposition. (Go and read Bingham's closing argument in the trial to see real courage.) Saying this in 1957, when Profiles in Courage was published, would have been highly controversial, so JFK took the easy way out. (He was also running for President and wanted the support of segregationist Democrats.)

Could a person of principle have voted for President Johnson's acquittal in 1868? Probably. Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single out, one of those men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President. Word of this got out after the trial ended and Bingham wanted the House of Representatives to investigate. Realistically, though, there was nothing that the House could do short of impeaching Johnson a second time, which was impractical at that point.

There are serious arguments that most of the charges upon which the House impeached President Johnson were mistaken, particularly insofar as they centered on Johnson's violation of the (almost certainly unconstitutional) Tenure in Office Act, which purported to prevent the President from removing certain government officers without Senate approval. Yet there is little reason to believe a principled concern for protecting executive power motivated Senator Ross, and there were many sound reasons to urge President Johnson's impeachment, particularly his efforts to undermine Reconstruction.

UPDATE: Seth Barrett Tillman takes issue with Magliocca's account here.

Magliocca has more on Bingham's role in the Johnson impeachment in his book on Bingham, America's Founding Sonand Brenda Wineapple discusses the case against Ross more fully in her book, The Impeachers.

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  1. That’s just a little too revealing, Johnson was being impeached because of politics not high crimes and misdemeanors. Whether Johnson was dead wrong about the 14th amendment is no justification for impeachment.

    And it’s quite clear Trump’s impeachment has very little to do with Ukraine.

    1. Whether Johnson was dead wrong about the 14th amendment is no justification for impeachment.

      A President who is trying to kill a part of the Constitution sounds pretty impeachable to me.

      1. You seem to have the timing off; Johnson’s impeachment was initiated in February of 1868, he was acquitted in May.

        The 14th amendment was ratified in July of 1868.

        At the time Johnson was opposing it, it wasn’t yet part of the Constitution. He was opposing a proposed amendment, not a part of the Constitution.

        1. A good and historical point.

          I’ll stick with his opposition to the 13th as sufficient justification.

          1. Johnson fully supported the 13th Amendment.

            1. Not once he was in office. At least according to Chernow’s Grant.

              1. Incorrect.

                Some outtakes.

                “Even as president, Johnson’s continued insistence that Southern states accept the abolition of slavery as a condition of readmission to the Union (along with rescinding their secession ordinances) played a significant role in finishing off the institution after the war’s completion.” “By September, Johnson and Secretary of State William Seward required South Carolina and other ex-Confederate states to ratify the 13th Amendment as an explicit condition of readmission to the Union, with one correspondent asserting that the South held out hope it could still restore slavery until Johnson pressured South Carolina to accept the amendment.”

                https://opinionator.blogs.nytimes.com/2013/08/09/when-andrew-johnson-freed-his-slaves/

                1. Yeah, under Lincoln, Johnson was relatively docile.

                  But under Johnson’s reconstruction Slavery was ended in name only via the Black Codes, and at whatever pace the South felt fit to use.

                  Johnson vetoed the Freedmen’s Bureau bill and the Civil Rights bill and came out against the 14th Amendment.

                  1. These quotes were not “under” Lincoln. Johnson was President when it happened. Once again, Johnson fully supported the 13th Amendment.

                    The point being made is that you think Johnson should’ve been impeached because he didn’t support policies which were not yet law not constitutional amendments

                    1. When did the 13th pass? And what did he do about implementation once he became President?

                      I’m not sure if you’re a big Johnson fan, or just trying to be pedantic.

                    2. It wasn’t about policies, it was about leaving the 13th to be dead letter and almost certainly doing the same about the 14th.

                      At some point, it’s not a policy difference, it’s failure to faithfully execute.

        2. Johnson’s offense was being from the south and staying loyal to the Union.
          “At the outbreak of the Civil War in 1861, Andrew Johnson, a senator from Tennessee, was the only U.S. senator from a seceding state who remained loyal to the Union.”
          The pretense was Johnson removing Secretary of War Edwin M. Stanton, who had been a leading Republican radical in the Lincoln administration.
          https://www.history.com/this-day-in-history/president-andrew-johnson-impeached

          1. The issue was that while he hated the slaveholders while a mere senator, once he was President he found their blandishments irresistible.

          2. His offense was his unwillingness to support the sort of reconstruction favored by the radical republicans, or even that favored by moderates like Grant. He turned a blind eye to the Black Codes and to the terrorist violence against the freed slaves. He replaced military commanders of the occupying forces who were willing to enforce the laws protecting the freedmen with ones sympathetic to the Confederate cause.

      2. Jeez, I would expect a little more temporal awareness from you about Johnson and the 14th.

        Especially when Bingham was mentioned. Drink!

        1. Yeah, it’s a fair put. I lump 13, 14, and 15 together more than I should.
          Hopefully being so called out will teach me a lesson.

        2. Yes but he did oppose the 14th amendment, and he made it clear that he didn’t believe that the former slaves should have equal protection of the laws. He favored keeping them as sort of wards of the state but with little in the way of civil rights.

    2. Kazinski, I could not agree with you more; Ukraine is not why POTUS Trump is being impeached.

      1. Motive arguments aren’t actually very substantive.

  2. The cowardice of John Adler: continuing to support impeachment, not because of the strength of the evidence, but because of the social and professional value in doing so.

    1. You’re just never going to be Trumpy enough for the Conspiracy’s carefully cultivated collection of clinger commenters, Prof. Adler.

      1. I can disagree with Adler, yet almost always find he has something interesting to say.

        1. Sounds like your *ahem* beef is with Flatulus.

    2. It’s Jonathan, not John. (Old Testament, not New Testament.)

      1. You expect people who use “Democrat Party,” favor random capitalization and Tea Party spelling and grammar, and deride those familiar with standard English as “elitists” care about precision with respect to your name?

      2. How about Juan Adler?

        1. Is this a joke implying Adler has dual loyalty. Because GTFO with that McCarthyite tactic.

          1. Well, I took it is a play on “He blogged anonymously under the pseudonym “Juan Non-Volokh” at “The Volokh Conspiracy” until May 1, 2006.”

            Adler’s wiki page

            1. I remember that a bit. I hope that’s it, and not ‘you like immigration therefore I’ma call you Mexican.’

      3. Don’t give a shit.

    3. Insisting that anyone who doesn’t like Trump can’t be sincere about it.

      Who are you trying to convince, anyhow?

  3. Well, if Pence is a coward for citing an act of “courage” proposed by JFK, then JFK was a coward too. I think it is better to say that Pence was saying that the myth of Sen. Ross’ courage was praiseworthy. Professor Adler is being disingenuous and I am less willing to consider him to be a wise sage.

    1. Read the OP. It agrees with you about JFK.

      As to your delving into mythmaking, that’s a stretch for a WSJ editorials.

  4. Eh one man’s freedom fighter is another man’s terrorist….

  5. Lincoln actually made some pretty big mistakes and Andrew Johnson was one. Another was opposing Manifest Destiny. Another was the Sioux Wars. Another was mismanaging the war effort. Another was…

  6. This characterization of Adler’s does seem to be a bit off. A key few points need to be made.

    1. Not a single one of the Republican Senators who voted against impeachment were reelected. It is indeed a profile in courage to make a vote that will almost surely will result in your defeat in the next election, but make it anyway.

    2. Reports on “bribery” really need to take into account the issues of the day. Federal patronage was quite common. What was much less common was the direct bribery the prosecution and its supporters were using to use to get Republican Senators to vote for conviction. Large US dollar amounts were offered, as were major benefits (IE Senator of State positions) for those who would vote for conviction. IF one is to discuss “bribery” in this context, and ignore the accounts of the prosecution bribing Senators for convictions, it is..misleading..at best.

    3. Of those Republican senators who opposed impeachment, one literally gave a speech where he said it was because of a motivation to preserve the separation of powers. Here are Senator Trumbull’s words. “Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes, as several of those now alleged against the President were decided to be by the House of Representatives only a few months since, and no future President will be safe who happens to differ with a majority of the House and two thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them, they will not scruple to remove out of the way any obstacle to the accomplishment of their purposes, and what then becomes of the checks and balances of the Constitution, so carefully devised and so vital to its perpetuity? They are all gone.”

  7. If Johnson had been removed from office, who would have become President?

    1. Grassley!

    2. My understanding is the Speaker, who was a radical and wanted to give women the vote.

    3. I looked it up. Sen. Benjamin Wade, as president pro tempore of the Senate, would, under the Presidential Succession Act then in force and effect, would become president if Pres. Johnson were removed from office. Wade voted to remove Johnson from office.

      I suppose that if Trump is removed from office, the House will then impeach Pence, clearing the way for Pres. Pelosi.

      1. Eric,
        At first I was going to dismiss your comment as ridiculous on its face. But then I thought about it and realized, “If 20 Republican senators suddenly gained courage and integrity and voted to remove Trump, then why assume they’d lose that integrity/courage and protect Trump. So, while the odds of 20 such senators finding a moral core and voting to convict Trump are about 1 in 1,000,000, the odds of voting to remove both Trump and Pence are not hugely higher…say 1 in1,000,100.

        Of course; at this point, we’ve see a ton of evidence that Trump behaved really really unethically. But only a bit of evidence, from a few people (and some of it not under oath), that Pence was in the loop and that he participated in the collusion/conspiracy/blackmail of Ukraine to win the upcoming election. I’d need to see much more evidence to come even close to an impeachment against Pence in the House.

  8. “and there were many sound reasons to urge President Johnson’s impeachment, particularly his efforts to undermine Reconstruction.”

    Now, this is a very interesting statement. It implies that Johnson’s legal actions, following the law, where he had a policy difference with Congress, were a justification for his impeachment.

    So, here’s a question for Adler.

    Let’s say a President has a policy difference with Congress, and uses the Constitutionally legally prescribed mechanisms available to him to pursue his policy choices, as opposed to Congress’s policy choices. Is this grounds for impeachment, in Professor Adler’s opinion?

    1. If the actions don’t involve an abuse of power (such as for personal benefit) or faithless execution, there would not be what I consider a strong basis for impeachment.

      1. So, in such, which sound reasons were there to urge the impeachment of President Johnson? Would you regard his choices of military governors in Reconstruction South as “faithless execution” of the law, and a sound reason to impeach Johnson? Or perhaps his actions in regards to the Freedman’s bureau, an executive branch which ultimately answered to the President were a faithless execution?

        Now, Johnson wasn’t a good president, by any means, for various reasons. But, if one isn’t to consider his political views and constitutionally protected political actions, what reasons were there to impeach him?

        1. Your willful blindness about Johnson’s almost universally accepted bad faith in reconstruction efforts is a helluva place to go to defend Trump.

  9. While I usually agree with Adler, his post is distressing because it suggests an inability to distinguish between impeachment for political grounds and impeachment for abuse of power. Johnson’s opposition to reconstruction was (in my view) totally wrong as a political matter, but that’s not a ground for impeachment, and neither was his violation of the unconstitutional Tenure of Office Act. As for Trump, many people (myself included) did NOT believe he should be impeached until his apparent efforts to bribe Ukrainian officials were revealed. I then switched, not because of my views on his policies, but because I felt that conduct was so far out of line that impeachment was called for. Adler’s unfortunate post lends support to those who claim (wrongly, at least as to some of us) that the impeachment is purely political in nature.

    1. Johnson’s opposition to reconstruction was (in my view) totally wrong as a political matter, but that’s not a ground for impeachment

      Certainly if it had been only a policy disagreement, but I understood there was more to it, namely that Johnson continued to defy Reconstruction acts Congress passed over his veto. The President has a duty to execute the laws whether he agrees with them or not, so failing to do so is impeachable though the circumstances will determine whether it earns removal.

      1. To be fair, some of the Reconstruction acts WERE unconstitutional, and while the President has a duty to execute laws even if he “disagrees” with them, he equally has a duty to NOT execute laws he thinks unconstitutional.

        That was a major motivation for the 14th amendment, Section 5 gave Congress constitutional authority to enact them.

        1. “…To be fair, some of the Reconstruction acts WERE unconstitutional, and while the President has a duty to execute laws even if he “disagrees” with them, he equally has a duty to NOT execute laws he thinks unconstitutional….”

          Brett,
          I assume you are talking about laws that courts have not yet decided on, right? I think you’d agree that, once the legal system has spoken, any president *must* faithfully execute laws–EVEN IF he, personally, is sure they are completely unconstitutional.

          1. That’s….a grey area. Let’s give you some context, then an example

            So, the context was a habeas corpus proceeding regarding a journalist in the South, during Reconstruction. The journalist printed a series of articles opposing the Reconstruction Act. So, the military administration threw him in jail. It clearly violates the first amendment, and it went to the Supreme Court. But then Congress created a new law that basically said “The Supreme Court doesn’t have authority to review the imprisonment under these circumstances”. And the SCOTUS said…OK.

            So, let’s give you an example. Congress in 2022 could pass a law that said “Abortion is illegal. And the courts do not have the authority to review this decision”.

            Would a Democratic President then HAVE to uphold that law?

            1. Brett, you know history.
              Nullifying a Court ruling is at the very least impeachable, and at worst treason.

          2. In California, a public official can’t refuse to execute a law he or she believes is unconstitutional. In 2004, the mayor of San Francisco (Gavin Newsome) directed the county clerk to issue marriage licences to same-sex couples, believing California’s law which then prohibited same-sex marriages was unconstitutional. The California Supreme Court invalidated the marriages, holding that a public official may not just refuse to enforce a law he or she believes is unconstitutional; rather, the remedy is to ask the courts to determine the law’s constitutionality. (Newsome then went to court, and in 2008 the California Supreme Court invalidated the same-sex marriage prohibition.) I don’t know whether the same principle applies to the President.

      2. “Certainly if it had been only a policy disagreement, but I understood there was more to it, namely that Johnson continued to defy Reconstruction acts Congress passed over his veto. The President has a duty to execute the laws whether he agrees with them or not, so failing to do so is impeachable though the circumstances will determine whether it earns removal.”

        What is your view of FDR’s aiding Britain prior to Pearl Harbor, when Congress was still pretty isolationist?

        1. Absaroka, FDR successfully campaigned Congress to pass a succession of bills that weakened the original Neutrality Acts, major weakeners being the Cash-and-Carry acts of ’37 and ’39, and the Lend-Lease Act of March 1941. I don’t know of any aid he provided to the UK that Congress hadn’t already permitted.

          1. For one example: “Churchill did go back to his own cabinet and told his cabinet that the President had told him that they were going to in essence create an incident in the Atlantic that would permit the Americans to become more actively involved.HART: One month later an American destroyer gave Roosevelt his incident, the USS Greer had joined a British patrol plane in pursuit of a German submarine and in departure from American neutrality. The ship and the U-boat exchanged depth charges and torpedoes, later the logs of the destroyer and the submarine showed the U-boat had fired in self-defense. Roosevelt knew it, but said otherwise.”

            Source

            I think it’s fair to say that FDR was, at a minimum, pushing the envelope pretty hard.

            (In my view, that’s OK. We elect both congress and the president, so both have claims to legitimate, independent power. Congress isn’t subservient to congress, nor the converse. They both answer to the voters.)

            1. Thanks for the link, I wasn’t aware of that version. You may know that the canonical explanation was that the Greer was tracking the U-boat and reporting its position to the British, an activity that was in compliance with the then-current level of neutrality, and that the Germans took offense and fired first.

              If I assume your version then I would say that yes it would be impeachable, in the sense that the House would not be abusing its power of impeachment to take that action. But I’d also say that FDR acted honorably in taking that risk. Britain was in bad shape at the time. Sometimes you have to do what’s right and take your lumps for doing it.

    2. Johnson’s actions extended well beyond political disagreements over Reconstruction (or his flouting of the like unconstitutional Tenure in Office Act). Likewise, whether or not Trump’s policy preferences with regard to Ukraine are good or bad should be irrelevant to the impeachment question.

  10. In the Barr case, why shouldn’t the case be dismissed for lack of standing? The plaintiffs gain no relief from the ruling. Why isn’t the opinion that what other people are doing is illegal advisory?

    1. Sorry, it appears Reason Somehow moved me to a different post.

  11. Mike Pence has done an astounding job of looking bad throughout the Trump Presidency. And now we learn, through an admittedly questionable source, that he was mixed up in the Ukraine “investigation for military equipment” scandal. What amazes me is that a man that is so careful about infidelity scandals would allow himself to get so close to this political scandal.

    1. For a man like Pence, who spent his entire political life (and maybe his whole life, for what I know) pretending to care about the importance of living a moral life and pretending that morality and ethics in political leadership were foundational . . . well, that all evaporated as soon as the rubber hit the road in this administration. We don’t even get public comments along the lines of, “President Trump is doing an amazing job of X, Y, and Z. But I strongly disagree with A and B.”

      I personally think politicians should be guided by principles other than, “What would Jesus do here?”. But if you *are* going to present yourself as a devout Christian, then at least act the part. And I mean; act the part when it’s not politically advantageous to do so.

      Some people think that Senator Graham is the person who has lost the most during the Trump administration. Since I never had any doubt that Lindsay was anything other than a sniveling worm, I’d disagree with those people . . . I sadly think that Pence has completely whored his reputation. But no worries–Trump supporters will probably remember Pence’s loyalty and so his future political career is rosy. Alas.

  12. Johnson was an awful President…

    But the law requiring him to get permission from Congress to fire a cabinet official was flagrantly unconstitutional.

    If he had actually been impeached for being a Confederate sympathizer, you could go back-and-forth about whether Ross made the right vote…

    But that’s not what happened. Johnson was impeached for violating an illegal law, and Ross cast the right vote for the wrong/dishonorable reasons.

  13. “Drawing heavily on President John F. Kennedy’s profile of Senator Ross in Profiles in Courage”

    You misspelled “Arthur Schlesinger.”

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