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cable or satellite provider. ♪ announcer: this week on "q&a," author and constitutional lawyer david stewart. he discusses his book "impeached: the trial of president andrew johnson and the fight for lincoln's legacy." ♪ brian: david stewart, what was andrew johnson, our 17th president like? david: he was a hard man. he was intelligent. he pulled himself up from nothing. he never attended school even for a day. totally self-made man. line,t had the great

"that is good to know, otherwise the almighty would to answer for." he had a rather bad disposition. he was an angry man and he was rigid. 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. there is a good deal to admire him. unfortunately, as president, his qualities probably would have been unfortunate anytime, but at that moment in history, they were a terrible mismatch. brian: where did it start politically for him? david: in tennessee. in greenville, eastern tennessee. he had opened a tailor shop and made a success of it. ran for local office. mayor, state senator, moved up the ladder and became a congressman and a senator. his moment of public attention was at the beginning of the civil war when almost all of the congressman 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. johnson refused to leave the senate. that did get attention. here was a southerner who was remaining loyal to the union. brian: what was his family like? david: as a boy? he grew up -- his father died when he was very young. he was only three or four. he didn't really grow up in the family much. he was apprenticed out at 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. he had 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. he would see her every day. he would visit her a couple of times a day. he had a couple of sons who ended up badly and became alcoholics. they didn't end well.

his daughters were quite admirable, and had families of their own. one served as his hostess in the white house, and were admired even by people who didn't like johnson. brian: how did he become president? david: he had been military governor of tennessee, appointed by president lincoln. he was admired for having stood by the union. 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. 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. he wanted somebody to appeal to the democrats. at the time, republicans or the were the liberal figures and

democrats were the conservative ones. you have to wrap your mind around that. brian: he reached out to johnson who he didn't know particularly -- david: he reached out to johnson who he didn't know particularly well, as a southern democrat who was prounion and would broaden his appeal. it worked, or else lincoln would have won anyway. he got 55% of the vote, and that is only in the loyal states. the southern states of course were not voting for him, and he wouldn't have gotten any votes there. he had a right as a politician to be concerned. of course, lincoln was assassinated six weeks into his second term as president. johnson, who was not prepared for the job was president. brian: you say he had all of those jobs from alderman, to governor, senator, but wasn't prepared? david: it's an interesting problem. we tend to want presidents who have experience in government.

andrew johnson is the example of experience is not everything, because by disposition he was ill-suited. he was not used to taking a he wasl perspective, basically a tennessee guy. when he became president of all the people, that was unnatural to him. he had a lot of trouble with that. brian: where was he when the assassination occurred april of 1865? david: he was in his hotel room. the assassination was a larger plot than just killing lincoln. they sent someone to kill the secretary of state and johnson. johnson was fortunate that the man who went to kill him lost his nerve, and didn't even knock on the door. he had a couple of drinks in the then left.

he just slept through it until he was awakened in the middle of the night with the terrible news. he was sworn in as president of the next morning when official word came that the president was dead. brian: what happened then in the early part? david: he initially struggled to find his feet. seward was terribly wounded in the attack on his life and was not available to him. so, he started out being very vengeful in his public statements. made it clear he wanted to hang a lot of confederate leaders. recovered and came back, it appears he basically johnson that that was not the right public stance to take. at that point, johnson 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. brian: from what you know of him, what attitude towards a slavery did he bring to the presidency? david: he had no problem with slavery. he owned slaves. one of the things he tended to say when southerners came to see him, former confederates would come to him for pardons. something he spent months doing was meeting with rich southerners who could pay for their pardons. he often told them, if you had only listened to me and stayed in the union, we would still have slavery. he thought that would be great. so, he had no problem with it.

underlying get, to be honest, he had very racist attitudes which came out several times in public statements. but also in his policies. theeally did think that freed slaves were a lesser form of human. it shaped everything, and it was tragic. brian: you point out that at the beginning of lincoln's second term, and he lasted only second weeks, that in the senate there were something like 42 or 43 republicans and 11 democrats. in the house, 143 republicans and 49 democrats. but in your first chapter, prior to the assassination, what happened when andrew johnson was sworn in as vice president? david: he did start out on the wrong foot. he wasn't feeling well in the morning of the inauguration.

he got to the capital. he had an attack of nerves, which was odd. he had been in the senate as a senator for years. he had done an immense amount of public speaking. he asked for some whiskey. 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. he went out to take his oath of office and everyone in the chamber could tell that he was drunk. he spoke erratically. he said things that did not make a lot of sense. it was a humiliating experience. so humiliating that he left town for at least a week thereafter and stayed in silver spring, maryland. when he came back into town, he was very invisible until the time of the assassination,

because it had been such a mortifying experience. quotes in have some here. hamilton -- hamlin was a vice president in the first term, and he met him before he went out on the floor. he said, mr. hamlin, i am not well, have you any whiskey? mr. hamlin had banned the cell -- the sale of liquor in the senate restaurant. to accommodate, he sent out of the building for a bottle. where did you get this? david: there were accounts by hamlin's son, but firsthand accounts of this exchange. brian: when the whiskey arrived, johnson down a tumbler straight. he announced 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 and not connected to each other at the biggest moment of his life, on the most important

stage he had ever occupied, the man was drunk. "your president is a plebeian," he announced. tennessee has never gone out of the union. i'm going to talk .5 minutes on that point and i want you to hear, tennessee has always been loyal. were they loyal during the civil war? david: many tennesseans were. many tennesseans were on both sides of the war. the government officially seceded. brian: there is something over history that rings on this next thing. sitting closest to the desk, the cabinet secretaries began to mutter amongst themselves, all of this is an 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? david: yes. brian: what impact did that have? is there any evidence?

david: in the next almost four years when he would give an erratic speech, which he did on occasion, particularly when he would get out of the white house and travel around the country. there is a famous period in 1866 when he did a lot of public speaking, a lot of people reacted that he was drunk again. it was based on the experience from the inauguration. brian: was he an alcoholic? david: i think not. was he a heavy drinker, yes. you can school yourself to be a heavy drinker. and he got out of control.net occasion. -- 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. 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 clothing. he always looked great. his clothes were perfect. a great contrast with lincoln who was famously shambly. i think people would have noticed if he had been inebriated on other public occasions. brian: he becomes president. what is the united states of america like at that point and what problems does he face? david: we are still winding up the war. there is still a considerate confederate army. joe johnson said army is in the field. joe johnson's army is in the field. daysas just surrendered before. he has to make some peace.

there is another group in texas that takes a little longer to surrender and give up their arms. he has a lot of struggles with ulysses grant over the treatment of former confederates, because grant gave his word that the soldiers would not be punished for their role in the war if they surrendered. as i said, johnson did not want to do that. he did want to hang some of them. grant succeeded with that. the first order of business was what to do with the states. we had no state governments down there. the south was occupied. it was an occupied hostile territory. congress was not in session. this was an era that congress only sat four or five months a year. through the winter basically, and into the spring. johnson went ahead and began reconstituting state governments basically on his own.

lincoln had done that with one or two. he had war powers. i guess louisiana during the war. it was an emergency and the president had 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 a new government. they were the natural leadership of the area. you had lots of former generals and former confederate congress met in and cabinet members who were now leading their states and managed to get elected. about what was his plan reconstruction and what was reconstruction?

david: reconstruction, in concept was rebuilding the union. everybody realized that after killing each other for so many years, well over 500,000 people were killed. comparable numbers today would be 30 million. in terms of the proportion of the population. it was an immense period of bloodletting. the result was a tremendous amount of hate between people. something had to be done to fix that. also, to create a government structure that didn't allow for slavery. the 13th amendment had been adopted and slavery had been abolished. that is basically all johnson wanted to do. he wanted to have state governments established.

he could not have slavery because the 13th amendment made the unconstitutional. beyond that, his view was that they were on their own. that is what the constitution intended from 1787. that is what was right. if they wished to discriminate against black people, if they wished to disadvantage the freed men in any way they chose, that was their decision. brian: why was he against the freedmen's bureau? david: it was meant to assist both freemen in the south. both black and white. that is where the devastation was. people have been driven from their homes. certainly, ex slaves who were now free. they were supposedly on their own, and they have usually no more than the close on their backs, no education, no tools, no weapons. they had to find their way. the freedmen's bureau was meant to help them.

in a few areas, they confiscated the estates and chopped them up into land parcels. this is where the phrase 48 acres and a mule came from. that was one of their programs. they also tried to set up schools. brian: you have a great cast of characters in your book. impeached. who were his friends, who were his enemies? david: his friends were democrats and southerners. seward had been a prominent republican leader. it is a complicated story about secretary of state seward, because he had been seen as a great abolitionist leader and then he turned out to be essentially the helpmate of this

anti-freedmen president. mostdversaries, the significant, the one i found most compelling was a congressman. fascinating guy. he had been born with a club foot and had to overcome that at a time when being disabled was 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. we tend to think of people devoted to the underdog is sort of soft-hearted people. afraid of stevens, they were afraid to debate with him in congress because he was so quick and incisive and would leave them gasping on the floor.

he was a powerful guy within congress simply by force of personality and talent. he was devoted to the evolutionist cause. evolutionist -- he was devoted to the abolitionist cause hearing he believed in inequality in all things. he, in many ways was the heart and soul of the reconstruction effort that built in congress, and ultimately the impeachment effort. brian: 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 suggested that they had some kind of relationship that nobody has ever proved, and he wasn't married? david: the mrs. smith story has never been confirmed that it was

a personal relationship. but i always thought one biography pointed out the best evidence we have that it was. stevens had a portrait painted of her. if she was only the mistress of his house as a servant, you don't get portraits painted of people like that. you get portraits painted of people you care about. i am inclined to credit it, although i agree the evidence is slim. that would have appalled johnson. he is a southerner. he knew that there was crossing racial lines with personal relationships. there was a vice president of tennessee that took up with a black woman and lived with her openly, a previous one. i think it was richard johnson.

but it would have annoyed him. it would have alienated him simply because they were political opposites. that stevens both was going to be against him on everything a hand frankly, that stevens was a formidable opponent. he could muster his troops in a way that others couldn't. brian: why did president johnson keep edwin stanton as secretary of war? david: that is a great question. 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. he was incredibly productive and efficient and effective as a senior military bureaucrat, a civilian bureaucrat in the military world.

i think that was part of it. stanton was just good at his job. i also think that stanton was probably just flat-out rude most of the time. he was a difficult man. he didn't put up with fools at all. i think he probably managed to intimidate johnson. which was not 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. it became the political flashpoint that led ultimately, to the impeachment effort. brian: i want to get these dates right. the 13th amendment was adopted

1865 which would be the end of his first year as president. did he support the 13th? david: he didn't oppose it. brian: the 14th amendment was adopted july of 1868, in his last year. did he support that? david: no, he opposed that. brian: why? david: he thought it was dangerous. we know equal protection and due process of the law which is section one, but there were a couple of provisions that dealt with how are we going to deal with the former confederates and structure our politics now that we are reunited? he disliked those provisions. he thought they were too restrictive and not good for the south. that was the principal reason. much of the opposition of the, 14th amendment back then was over those provisions not over equal protection of the law. brian: the 14th amendment did not pass until 1870. he was gone by then.

before you wrote this book, you had been deeply involved in impeachment. but to start with, you clerked for three different judges. who were they, i and what year or so were they? david: a while ago. i clerked for two appellate judges here in washington. then i was lucky to clerk at the supreme court for lewis powell. brian: what did you take away from him? david: remarkable admiration. he is an impressive person. 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 are 71. he tried to. he recognized that he didn't always, but he did try to. he tried to see both legal implications of the case, but also the human implications of the case. i think a great judge needs to look at both. brian: when did you first see impeaching of a public official up close? david: i served as defense counsel for a district judge in south mississippi, walter nixon junior in the late 1980's. he had been convicted of perjury before a grand jury, a lengthy and somewhat ill-conceived investigation. he was actually imprisoned that the impeachment

effort so that was a real barrier for us to work with. he felt it was wrong conviction, a bad case. i concurred. we resisted the impeachment both in the house of representatives and the senate. it went to trial on the senate side. brian: what happened in a house and why did it have to start in the house, the impeachment of walter nixon? no relationship to the president. david: the house brings the churches at 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. hearingsse, we had before house subcommittee.

to be honest, the subcommittee chair was very troubled by the case. did not care for it. he kept us there for almost a year just reconvening hearings and wanting to hear more evidence. ultimately, he went along with it, with the impeachment case. it was approved by the house and sent over to the senate. brian: how many votes do you have to have in the house to impeach somebody? david: simple majority is enough, by one vote is plenty. brian: once you are impeached, what happens next? david: the senate gets the case. the house appointed managers who serve as prosecutors on the senate side in whatever proceeding they have. these days, since the last 30 or 40 years now, the senate does not convene judicial trials before the full senate, but appoints a committee to hear the

evidence, a procedure i found constitutionally infirm, but failed in that argument. the senate hears closing arguments and votes. brian: let's jump way ahead. andrew johnson in the house of representatives, what happened on the vote to impeach? david: it was a party line vote. the republicans voted to impeach him, the democrats did not. brian: something like 42 to 11? david: no, that was the senate. in the senate, they had a long trial. four weeks. he was ultimately acquitted, acquitted is the right term a -- by a single vote. to a two-thirds majority to convict him and remove them from office.

brian: two thirds present or total number of senators? david: present. brian: what date was he finally acquitted? david: precise date is going to escape me, i believe it was june of 1868. pretty close to election time. brian: this is also out of context. but for you to explain it might be interesting. , according to this, and it is like a broken man crushed by vindictive radical republicans. not a single one of them escape the terrible torture, wrote john f. kennedy in "profiles encourage," and you say it is a myth. historyhe most popular books in our lifetime, did what?

myth?id is the david: it is a scandal. 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 a fellow named edmund ross who was credited with casting the single vote that saved johnson's tail. it calls ross's vote a heroic moment in american history. i actually think his vote was bought. that his vote was purchased stop and saving johnson i think was not a relic. "profiles in courage" was a campaign document. it was made 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.

brian: did he write it? david: no. it was written by theodore -- i think he probably had help from other people who fed him history materials. at the very end of his life, he -- sorenson -- admitted that he had written it. he insisted that kennedy had gone over the entire book and made some corrections and changes. brian: of the seven radical republicans that voted to acquit, you say that is a myth that they were broken and destroyed? david: correct. ross went back to kansas and ended up as gubernatorial government of mexico for the democrats, which is probably where he 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. this melodramatic story was just good theater, but not accurate.

brian: andrew johnson the democratic party and these were republicans who voted to acquit him. he needed 19 votes. one of them, who voted to acquit was a man named thomas hendricks, who was cleveland's vice president. voted to acquit, he would be a democrat. but the other thing was henry wilson, who was grant's vice president, voted to convict. there is a lot of great names. justin moral was a man who voted to convict him. john sherman, who was the brother of william tecumseh sherman. general sherman play in all of this? david: general sherman was a witness to some of the allegations about johnson's meddling with the military.

he was a witness in the proceeding in the senate. 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 and harmful to the impeacherist, that they did not 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 granted and johnson were really at loggerheads will stop brian: what was his position in grants administration? david: he was general and chief of the army. the real crisis developed because the army was in the south trying to enforce all of these laws over johnson's vetoes to protect the freedmen.

to take care of the ex-slaves, to make sure they were not being shot down in the street, to give them a voice and government. 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. he ended up removing for or five who had initially been appointed. this subset grant tremendously because he thought they were good officers doing what they should do, but he also had become a believer in ending slavery. he had not been as much of an abolitionist before the war, but he came around. stanton was infuriated by it. stanton and grant basically developed a program of resisting johnson from within. they were at some level profoundly disloyal to their president. brian: why did you want to write a book on impeachment?

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 are clear on their own, but they don't tend to fit the facts or what is going on. i finally concluded that it was sufficiently concluding that it was not going to help either side. so i went past it and moved on to things that mattered to me. but it always bothered me. it was this huge moment in our history, this presidential impeachment that i figured if i didn't understand, most people didn't understand it very well. i thought it was something i could dive into. also, i had done a book on the writing of the constitution. this is a moment for the constitution where it mattered a lot, really made all the

difference. i wanted to see what that felt like. brian: our first visit was when you did a book called "summer of 1787: the constitutional convention in the lid delphia." -- other books include david: "american emperor" about aaron burr's treason trial. madison's gift." brian: are you working on another one now? david: i am. i am working on george washington. brian: that is no small task. david: intimidating. brian: let's go back to andrew johnson as president. something about the tenure act

is in his way. david: it was an accident to be in his way. it was the brainchild of thaddeus stevens. they knew in congress, the republicans who were opposing johnson, they knew that he was scheming against stanton and that he was firing lots of employees. this was a hero of tremendous patronage. republicans had one the 1856 election. all of their officeholders were they are. there. he was replacing them with democrats. the whole point of winning was to get the jobs. they adopted the tenure of office act to make it impossible for him to do that. it focused on this elipses in the constitution. i sort of love this. the constitution is how you appointed these cabinet officials. it doesn't say anything about how you get rid of them. 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 to do this. there was an argument that it should be the mirror image of the appointment process, that you should remove the president

by having them tell the senate, i want to get rid of john smith, and the senate would have to confirm that. other people said no, the president needs to control the people that work for him and he needs to be able to fire them. that is what was done. stevens was smart enough to know that there was a respectable argument. that it was constitutional to have senate approval required for removing a senior officer. that was what the tenure of office act required. it also created a criminal penalty for violations of it, and added, because stevens was a good lawyer, that it was a high crime and misdemeanor, which was the language from the impeachment clause of the constitution to violate the statute. it was a trap that was set for johnson. 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. he suspended stanton. he sent a notice to the senate and asked them to confirm his removal. the senate didn't. johnson stewed about that for a removedd and then just him. did president andrew johnson know they were out to get him and impeach him? david: there had been efforts to impeach him before. what ended up in the senate trial, at least two. one was weird. we needn't talk about it much, it was run by a crackpot. the second was the more serious one. it was in the fall of 1867. it was led by republicans, of course, who really thought his policies and his performance in office was a disaster.

they basically wrote that up as impeachment articles. it was reported by the committee that heard it. the judiciary committee. 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 are 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 thought about that when they wrote the clause. but that is what this fellow made, and it was a persuasive argument for the congressmen. by a prettyfailed wide margin. a heck of a majority of republicans opposed it. they had been to the well twice. when he fired stanton, stevens and others think ok, we have got him now. he violated the statute, now we

can move against him. brian: how long was that tenure of office act a law? david: in different guises, it was a law for about 45 years. it was amended significantly when grant becomes president. he says, you have got to change this law. i need to be able to fire my senior people, and they did, but they left some provisions of it and those remains in effect until the 1920's when they came before the supreme court under a challenge and the supreme court said it was unconstitutional. brian: reminder, april 15, 1855, johnson becomes president. you have the articles of impeachment in your book, 11 of them. when were those introduced?

80 by whom and the house of representatives? david: it is slightly out of sequence in the way it happens. they vote to impeach him and remove him from office without having the specific articles in front of them. everyone knows what they're going to charge, but they don't have them in front of them. everyone moves so fast and they are so angry. the articles are amended and he adds another one at the end. the house proceedings i think lasted no more than four days. it was very fast. 1868. this was right in february of 1868. brian: does andrew johnson think he is going to run again? david: he hopes to. he hopes to run as a democrat, he knows the republicans will not nominate him. he thinks he has done what

democratic voters wanted him to do. if you have the southern states back in the union, he thinks he has a shot during brian: who -- a shot. in and arounde washington at that time inc.'s they are going to be president? bethinks they are going to president? david: the republicans wanted grant. he is not a wildly politically ambitious guy. he has never been in politics. he has had a humble career until the civil war started. 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. brian: once those 11 articles are introduced, and the vote is taken, how long did they have hearings? or did they have hearings and discuss it all? david: no hearings. this is thaddeus stevens. [laughter]

david: he did stuff. went straight to the senate. brian: how did that work once it got to the senate? david: everything slowed down. and it should have. the house moves pretty fast. you have the house managers and johnson appoints a number of defense lawyers starting with his attorney general, henry stanbury. the senate gives them time to prepare their case. through this whole period, you have tremendous amount of publicity. as you can imagine. so, everything about the case is already in the press. i think it takes about six weeks before the trail actually begins. brian: you have got to tell the stanbury story. "congress responded in kind, when a vacancy arose on the supreme court in the spring of

1866, he nominated stanbury." when i read this, you envision today what would happen if this kind of thing would happen today. david: the republicans did not want johnson to have an appointment to the supreme court. a vacancy arose and he said he wanted to nominate stanbury who was a lawyer from i believe cincinnati, or ohio anyway. congress quickly enacted legislation eliminating the vacancy and saying the supreme court was only eight justices, no longer nine. just to make sure 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 size of the court will cut and shrink to seven. that was in case somebody else

died or left office, johnson would not get that appointment. brian: didn't johnson veto that bill? david: he vetoed most of the bills. brian: define a radical republican. david: it's a soft definition. i think they were the angriest republicans, the people who were most unhappy with johnson. they were the most devoted to helping the freedmen who had been slaves. within congress, they were obviously radical republicans, and then it is a spectrum. probably the hard core of what you would call radicals, for no -- 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. they were the true adversaries for johnson. their challenge was always to bring the rest of the

republicans along. brian: when they finally got to the trial in the senate, and you have been there and done that, what were those circumstances? i know one of the things you write about is that ben curtis, a former supreme court justice, defended andrew johnson. david: that was powerful. he was a supreme court justice. he left the court, but he had been a justice and was from massachusetts. everybody knows what that means during civil war times. that is an abolitionist stronghold. even more powerfully, he had been a dissenter in the dred scott case. that is one of the clauses 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 crazy proslavery 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 did not either. it you do not have to decide that. all you have to decide is, did he have good reason to think that? even if it was unconstitutional. even if you think it is the wrong decision, is it rational? is it possible? if it is just possible, then his actions were justified. brian: how long did the trial go on? david: about four weeks. brian: who led the house members on the floor of the senate to carry out the trial? david: it was most unfortunate. stevens was an old fellow at the time. in his 70's and sick. people watched him decline. the newspapers were sort of on a deathwatch, describing how bad he looked every day.

you really cannot perform in the courtroom. he was just too weak. so, the man who took control of the case with a first-term congressman from massachusetts named ben butler, who was a colorful character but not a great character. he had a checkered career as a political general during the war . he was known as "east butler" for the way he treated the occupation of new orleans. "beast butler" for the way he treated the occupation of new orleans. he was reputed to have stolen silver in the house that he occupied there. his military achievements were modest at best. he was a clever lawyer, but he was not a judicious lawyer. i think you tried the case badly, speaking as a trial lawyer. he was a bad choice. brian: how did they pass that first conviction?

they had 11 articles, and i think you describe here that they pass the 11 first. david: they addressed the 11th article first because is encased went on -- when of the weird things about a senate trial, having lived through one, is lawyers are used to, you don't chat with the off-line. you do not check with the jurors. everything is formal and everything is in the record. not, in congress they are like that. they are friends or at least colleagues. so they are chatting all the time. the house managers are colleagues of the senators, who are the jurors. they are talking all the time. 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. there was a tough thing to defend against, including the tenure of office claim including

-- 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 the southern states were not represented. that was challenged. so, they felt because it had multiple accusations that they might pick up the most support with it. they fell one vote short. brian: 35-19 was the vote. david: correct. brian: did they pass on 11? before it was over? david: they voted on two more. article two and then article three. brian: what was president

johnson's reaction to this? david: he was pleased. he wasn't ecstatic. it wasn't his makeup. he didn't go into public and trumpet it. he had to pull it in his forms a little bit. people let the time noted that s or so of three-month the impeachment process, the final votes are in may, not june, he was not anywhere near as aggressive or controversial as he had been. he was reassuring people, i am not going to do terrible things. he had appointed a very inappropriate guy to succeed stanton as secretary of war. he overruled himself and appointed a union general, john scofield, who was pretty acceptable and pretty reasonable. hise had been calibrating behavior in a way that made him

less threatening and less disturbing. the rest of his presidency, he became a lame-duck very fast. great for the hate the rest of it, but his powers were pretty limited by then. i think the impeachment receding had clipped his wings. impeachment proceeding had clipped his wings. brian: how much did he pardon the south? david: his principal activity was this process i alluded to, where in his first few months as president, in the fall of 1865, he set up 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. brian: directly to him?

david: not him, personally, but to the government. lots did. he spent a couple of months basically doing this all day. his room was described as just filled with southerners to pay court. he had been a poor boy. he always had a great class resentment to the aristocracy of the south. here were all of these people that he pretty much hated all of his life that were crawling to him. came to him on their knees. the accounts are that he enjoyed that tremendously. brian: why did he pardon jefferson davis? david: that is a different question. it comes later. i don't remember the timing exactly. at least two years after the war, maybe three. davis has been in prison. he is not a threat. i think the fury of the war and the resentment is beginning to ebb a bit. the case for prosecuting him involves precedents that i don't think he could take.

brian: this book was first published in 2009. is it available? is it in print? david: it is available wherever fine books are sold, and it is available in e-book and audio version as well. brian: it's called "impeached: the trial of president andrew johnson and the fight for lincoln's legacy." our guest has been david o. stewart. he is also the author of "the summer of 1787." we thank you very much. david: thanks for having me. ♪ [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2018]

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business forum hosted by the u.s. chamber of commerce. the senate returns to consider the nomination of britt grant to be a judge on the 11th circuit court of appeals. a debate set for 5:30. --ustice on the coming up on washington journal, groupon hatalsky from the third way talks about the divide within the democratic party between moderates and progressives. with president trump threatening to revoke security clearances of several former obama officials national security attorney mark zaid securityto discuss how clearances work, who receives them, and the process of obtaining them. forbes magazine senior editor stbe