On February 24, 1868, three days after President Johnson dismissed Secretary of War Edwin Stanton without Senate concurrence, the House voted 126-47 in favor of a resolution “[t]hat Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors.” For a while, exactly what Johnson had done to merit impeachment remained (at least formally) unknown. Yet the Senate went about organizing itself to try Johnson’s impeachment, adopting on March 2 a set of “Rules of Procedure and Practice in the Senate when sitting on the Trial of Impeachments.”
On March 4, Chief Justice Salmon P. Chase dashed off a letter to the Senate, “submitting some observations in respect to the proper mode of proceeding upon the impeachment which has been preferred by the House of Representatives against the President now in Office”:
Article I, Section 3 of the Constitution says the “Senate shall have the sole Power to try all Impeachments,” but it’s unclear when the Senate may organize itself to try impeachments (when it’s been informed of an affirmative impeachment vote, or only after it’s received detailed articles of impeachment?) and whether it must wait until “sitting for that purpose” to establish rules and procedures for the trial.
Chase’s chief “observation” addressed the timing question. In his view, the Senate could not organize itself under oath as an impeachment court until it had received concrete articles of impeachment. (The articles actually arrived in the Senate later on the afternoon of March 4.) Furthermore, “no summons or other process should issue except from the organized Court, and . . . rules for the government of the proceedings of such a Court should be framed only by the Court itself.” Chase knew the Senate had “proceeded upon other views.” Rather than purport to nullify what it had done, he set out to convince posterity that the Senate’s premature issuances should not be repeated in the event that, God forbid, the chronology of this first presidential impeachment should ever need to be consulted as a precedent.
Here’s page one of the letter Chase wrote to the Senate:
Here’s the full text of Chase’s letter:
- Inasmuch as the sole power to try impeachments is vested by the Constitution in the Senate, and it is made the duty of the Chief Justice to preside when the President is on trial, I take the liberty of submitting, very respectfully, some observations in respect to the proper mode of proceeding upon the impeachment which has been preferred by the House of Representatives against the President, now in office.
- That when the Senate sits for the trial of an impeachment it sits as a Court, seems unquestionable.
- That, for the trial of an impeachment of the President, this Court must be constituted of the members of the Senate, with the Chief Justice presiding, seems equally unquestionable.
- The Federalist is regarded as the highest contemporary authority on the construction of the Constitution; and in the sixty-fourth number the functions of the Senate ‘‘sitting in their judicial capacity as a court for the trial of impeachments’’ are examined.
- In a paragraph explaining the reasons for not uniting ‘‘the Supreme Court with the Senate in the formation of the court of impeachments’’ it is observed that ‘‘to a certain extent the benefits of that union will be obtained from making the Chief Justice of the Supreme Court the President of the Court of Impeachments, as is proposed in the plan of the convention, while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was, perhaps, the prudent mean.’’
- This authority seems to leave no doubt upon either of the propositions just stated.
- And the statement of them will serve to introduce the question upon which I think it my duty to state the result of my reflections to the Senate, namely, At what period, in the case of an impeachment of the President, should the Court of Impeachment be organized under oath as directed by the Constitution?
- It will readily suggest itself to anyone who reflects upon the abilities and the learning in the law which distinguish so many Senators, that besides the reason assigned in the Federalist, there must have been still another for the provision requiring the Chief Justice to preside in the Court of Impeachment. Under the Constitution, in case of a vacancy in the office of President, the Vice President succeeds; and it was doubtless thought prudent and befitting that the next in succession should not preside in a proceeding through which a vacancy might be created.
- It is not doubted that the Senate, while sitting in its ordinary capacity, must necessarily receive from the House of Representatives, some notice of its intention to impeach the President at its bar; but it does not seem to me an unwarranted opinion, in view of this constitutional provision, that the organization of the Senate as a Court of Impeachment under the Constitution, should precede the actual announcement of the impeachment on the part of the House.
- And it may perhaps be thought a still less unwarranted opinion that articles of impeachment should only be presented to a Court of Impeachment; that no summons or other process should issue except from the organized Court, and that rules for the government of the proceedings of such a Court should be framed only by the Court itself.
- I have found myself unable to come to any other conclusions than these. I can assign no reason for requiring the Senate to organize as a Court under any other than its ordinary presiding officer, for the later proceedings upon an impeachment of the President, which does not seem to me to apply equally to the earlier.
- I am informed that the Senate has proceeded upon other views; and it is not my purpose to contest what its superior wisdom may have directed.
- All good citizens will fervently pray that no occasion may ever arise when the grave proceedings now in progress will be cited as a precedent; but it is not impossible that such an occasion may come.
- Inasmuch, therefore, as the Constitution has charged the Chief Justice with an important function in the trial of an impeachment of the President, it has seemed to me fitting and obligatory, where he is unable to concur in the views of the Senate, concerning matters essential to the trial, that his respectful dissent should appear.