Exerpt from James W. Grimes Opinion on the Trial of Andrew Johnson 1868It is clear to any mind that the proviso [of the Tenure of Office Act of 1867] does not include, and was not intended to include, Mr. Stanton's case. It is not possible to apply to his case the language of the proviso unless we suppose it to have been intended to legislate him out of office; a conclusion, I consider, wholly inadmissible. He was appointed by President Lincoln during his first term of office. He cannot hereafter go out of office at the end of the term of the President by whom he was appointed. That term was ended before the law was passed. The proviso, therefore, cannot have been intended to make a rule for his case; and it is shown that it was not intended. This was plainly declared in debate by the conference committee, both in the Senate and in the House of Representatives, when the proviso was intro duced and its effect explained. The meaning and effect of the proviso were then explained and understood to he that the only tenure of the Secretaries provided for by this law was a tenure to end with the term of service of the President by whom they were appointed, and as this new tenure could not include Mr. Stanton's case, it was here explicitly declared that it did not include it.
I come now to the question of intent. Admitting that the President had no power under the law to issue the order to remove Mr. Stanton and appoint General Thomas Secretary for the Department of War ad interim, did he issue those orders with a manifest in ten I to violate the laws and "the Constitution of the United States," as charged in the articles, or did he issue them, as he says he did, with a view to have the constitutionality of the tenure-of-office act judicially decided?
It is apparent to my mind that the President thoroughly believed the tenure-of-office act to be unconstitutional and void. He was so advised by every member of his cabinet when the bill was presented to him for his approval in February, 1867 . . . including the Attorney General, whose duty it is made by law to give legal advice to him, including the Secretary for the Department of War, also an eminent lawyer and an Attorney General of the United States under a former administration. . . . The question [is] whether Mr. Stanton's case is included in the provisions of that act. If it was not, as l think it clearly was not, then the question of intent is not in issue, for he did no unlawful act. If it was included, then I ask whether, in view of those facts, the President's gudiy in ten I to do an unlawful act "shines with such a clear and certain light" as to justify, to require us to pronounce him guilty of a high constitutional crime or misdemeanor? .
It is not denied, I think, that the constitutional validity of this law could not he tested before the courts unless a case was made and presented to them. No such case could be made unless the President made a removal. That act of his would necessarily he the basis on which the case would rest. He is sworn to "preserve, protect, and defend the Constitution of the United States." He must defend it against all encroachments, from whatever quarter. A question arose between the legislative and executive departments as to their relative powers in the matter of removals and appointments to office. That question was, Does the Constitution confer on the President the power which the tenure-of-office act seeks to take away? It was a question manifestly of construction and interpretation. The Constitution has provided a common arbiter in such cases of controversy-the Supreme Court of the United States. Before that tribunal can take jurisdiction a removal must be made. The President attempted to give the court jurisdiction in that way. For doing so he is impeached, and for the reason, as the Managers say, that-
He has no authority under the Constitution, or by any law, to enter into any schemes or plans for the purpose of testing the validity of the laws of the country, either judicially or otherwise.If this be true, then if the two Houses of Congress should pass by a two-thirds vote over the President's veto an act depriving the President of the right to exercise the pardoning power, and he should exercise that power nevertheless, or if he should exercise it only in a single case for the purpose of testing the constitutionality of the law, he would be guilty of a high crime and misdemeanor and impeachable accordingly. The Managers' theory establishes at once the complete supremacy of Congress over the other branches of government. I can give my assent to no such doctrine.
This was a punitive statute. It was directed against the President alone. It interfered with the prerogatives of his department as recognized from the foundation of the Government. It wrested from him powers which, according to the legislative and judicial construction of 80 years, had been bestowed upon him by the Constitution itself. In my opinion it was not only proper, but it was his duty to cause the disputed question to be determined in the manner and by the tribunal established for such purposes. This Government can only be preserved and the liberty of the people maintained by preserving intact the co-ordinate branches of it-legislative, executive, judicial-alike. I am no convert to any doctrine of the omnipotence of Congress.
I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an Unacceptable President.