Bribery, Courage, and Cowards—Reflections on Impeachments Past

You wrote: “Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single[d] out, one of those [courageous] 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.” That seems pretty bold: Do you have good sources for that?

I thought the standard claim against Ross was that he feared that his already-in-office patronage would be removed by the Senate President Pro Tem should President Johnson be removed and replaced by the SPPT (who was next in the line of succession). Andrew Johnson [if not convicted and removed] would just leave [Ross’s] people in the federal offices they already held. That’s hardly a “promise[] [of] lots of federal patronage.” And I am pretty confident that behavior (or, in this case, inaction) does not amount to being “bribed.” Even that more limited claim—that Ross voted in order to keep his people in the Executive Branch and on the federal payroll—has (as far as I know) only threadbare support. What is the support you have for your position? Is it just David O Stewart’s book? What exactly was his support?

You also wrote: “These senators [who voted to acquit Johnson] were, in fact, cowards.” I don’t see how you can say that about W.P. Fessenden—the chair of the Joint Committee on Reconstruction. He, and the other 6 Republicans who voted to acquit Johnson, committed political suicide against the will of rank-and-file Republicans back in their home states. Everyone knows that. Are you really saying that each and every of the 7 Republican senators who voted to acquit did so because they were bribed or otherwise self-interested? That is hard to square with the fact that each committed political suicide. Do you actually have support for that statement—in regard to each of the 7 seven?

Again, you wrote: “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.” I think your statement is something akin to a non sequitur. The opposition Bingham faced in regard to the 14th Amendment was in the House and Senate—where he needed to reach 2/3—and in parts of the country which opposed slavery, but did not support broader moves toward civil [and political] equality across racial lines. Johnson opposed the Amendment, but his support was not necessary to it, as the President does not have a veto power over proposed amendments. This particular partisan fight—the fight over the 14th Amendment—was not the same as the partisan fight over the impeachment of President Andrew Johnson. Kennedy’s book addressed the latter partisan fight. I do not see how you can make your point stick (about courage and cowardice) by pointing to evidence involving the former. And I think it telling that this is the first evidence you offer in support of your point.

Johnson did things that I think were bad: very bad. Whether his actions warranted impeachment—is another matter. And whether the 7 Republicans voted to acquit him had decent publicly spirited motivations for doing as they did, or did so for self-interested or illegal reasons, or had motivations which were more in a zone of twilight—is something we should carefully consider. Painting one’s claims with over broad brush strokes about groups of people—who took their decisions separately—asserting that they were bribed or cowards...I just don’t see how that can be the right approach.

Why not put your cards on the table? What precisely do you think Johnson did wrong that warranted his impeachment such that the House managers acted rightly in trying him before the Senate? Was it just his naked opposition to the 14th Amendment? That would be odd.

Seth

Seth Barrett Tillman, Bribery, Courage, and Cowards—Reflections on Impeachments Past, New Reform Club (Jan. 17, 2020, 10:17 AM), <https://reformclub.blogspot.com/2020/01/bribery-courage-and-cowardsreflections.html>;

Responding to Gerard N. Magliocca, Profiles in Cowardice, Balkinization (Jan. 17, 2020, 8:59 AM), <https://balkin.blogspot.com/2020/01/profiles-in-cowardice.html>;

Letter to the Editor at the New York Times, Responding to Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?

Letter to the Editor

letters@nytimes.com

January 10, 2020

Re: Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?, The New York Times (Jan. 7, 2020), <https://www.nytimes.com/2020/01/07/opinion/john-bolton-testify.html>.

Katyal and Conway ask: Why the Republican-led Senate and its leadership have expressed an unwillingness to call John Bolton as a witness in the yet-to-be-held impeachment inquiry? But the better question remains why the Democratic-led House has not done that very thing. Because impeachment proceedings have not yet begun, there is still an opportunity for the House’s would-be impeachment managers to call Bolton as a witness and to add his testimony to the record which (one anticipates) will be sent to the Senate. If the Democratic-controlled House is unwilling to exercise its subpoena powers, then there is no cause to fault the Republican-controlled Senate.

It has always been the House’s duty to establish a complete record justifying its decision to impeach the President.

Seth Barrett Tillman

Seth Barrett Tillman, Submitted as a Letter to the Editor at The New York Times, Responding to Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?, New Reform Club (Jan. 10, 2020, 5:52 AM), <https://reformclub.blogspot.com/2020/01/letter-to-editor-submitted-only.html>; 

An E-mail to Professor Hathaway

I remain somewhat puzzled by your reticence and the reticence of other critics of the President. The AP quoted you as saying: “Trump’s threat amounted to ‘a pretty clear promise of commission of a war crime.’” See <https://apnews.com/8d3385ab6c29c3da3ab9b081bae53884>. And here <https://twitter.com/oonahathaway/status/1213924990254551046>, you wrote that Trump’s “tweet threatens to break several laws.” Does the tweet, which you characterize as a “threat” or “promise,” actually break any laws, including the law of land warfare and/or the 1907 [Geneva] Convention? Or, are you making just a slippery slope argument, i.e., the tweet puts one-and-all on notice that Trump will [or is likely to] break the law (even if he has not done so yet)? 

I don’t really understand your position.

Seth

Seth Barrett Tillman, An E-mail To Professor Hathaway, New Reform Club (Jan. 9, 2020, 4:22 AM), <https://reformclub.blogspot.com/2020/01/an-e-mail-to-professor-hathaway.html>. 

Second Thoughts About Religious Tests

You wrote that the members of the North Carolina legislature in 1809 who sought to enforce the protestants-only religious test against its Jewish member, Jacob Henry, “really do look stupid.”

They certainly look stupid to Americans today. And they were at risk of looking stupid to many of their more broad minded contemporaries. Still, I think you are being overly judgmental, if not harsh. They were placed in a position which required their enforcing a bad legal rule. That is always difficult. I could be wrong, but my sense from fairly extensive contacts with a broad range of Jews in the UK ... is that most are quite attached to the monarchy ... along with the monarch being head of the Anglican Church. Were the Queen to publicly and actively become an atheist/agnostic or to convert to a non-Christian religion (including Judaism) or to affiliate with a church not in communion with the established church, I think most Jews in the UK would expect (in the normative sense) her to abdicate, much like Edward VIII did. I am not expert in UK law, but if the Queen converted out, I think statutes would come into play displacing her from her position—even if she did not abdicate. If British government officials enforced those statutes on this point, I would think it would be a somewhat unfortunate result and a bad law to boot. I also think most British Jews would be loath to call those charged with enforcing settled-law (about which the enforcers might even personally disagree) bigots or stupid. Of course, such a result—based on a religious test—is wholly un-American, which is precisely the point. North Carolina in 1809 with its House of Commons and its two members for the counties and one member for the towns was modelled on Blake’s England: it was still midstream between an older British identity and now modern American identity.

Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat (submitted for 2020 publication), <https://ssrn.com/abstract=3498217>.

Seth Barrett Tillman, Second Thoughts About Religious Tests, New Reform Club (Jan. 6, 2020, 1:53 PM), <https://reformclub.blogspot.com/2020/01/second-thoughts-about-religious-tests.html>.