Kate Shaw: Andrew Johnson Was Impeached for Being a Racist Demagogue

On this week’s Amicus, Dahlia Lithwick spoke with Kate Shaw, a professor of law at Cardozo Law School and co-director of the Floersheimer Center for Constitutional Democracy. The two discussed impeachment (what else) and assessed what impeachment inquiry is the best comparison for the current investigation—along with what the founders meant when they decided to include an impeachment process in the first place. Their conversation has been condensed and edited for clarity.

Dahlia Lithwick: There’s been a whole bunch of really great articles about Andrew Johnson in the last week or two that have helped illuminate the ways in which [Johnson’s impeachment] is in fact the best template for looking at Trump, in many, many ways more so than Clinton, more so than Nixon. That was an attempt to impeach someone for just an inchoate bundle of demagoguery, in addition to obviously discreet acts, but that there was this bucket of things that was just horrible use of words to threaten sitting members of the Senate, to incite violence in some instances.

And that seems like it’s the closest parallel in some ways, when you’re trying to gather all the strings here of what it is about Trump that makes people nuts. So many of the actions are just these speech acts that are appalling and they don’t, I mean I think there are speech acts at the heart of the Ukraine question too. But I just wonder if you could walk us through a little bit, the Andrew Johnson as parallel, only because here are our articles of impeachment for “Attempt to bring into disgrace, ridicule, hatred and contempt and reproach the Congress,” and then articles about the speeches that he was giving and the incitement involved. And I’m just wondering if you can help me understand if that’s closer to what we’re looking at and how to use Johnson, if at all, as a frame.

Kate Shaw: I struggle with whether Johnson or Nixon is a better analog. I think there are absolutely elements of both in the sort of cluster of allegations against President Trump. I think you’re right, that there are tons of parallels with Andrew Johnson. And so there were 11 articles of impeachment against Andrew Johnson. Nine of them focus on the violation of the statute, the Tenure of Office Act, which he did of course violate by firing his war secretary, in which it’s pretty clear was an unconstitutional statute.

But both the two articles that explicitly talk about things other than that statutory violation, the actual underlying motivation of the Republicans in Congress who were the architects of that impeachment, were not really about the violation of that statute at all. But much more exactly as you were saying: He was an unfit and racist demagogue. That was why he was impeached. And I do think that the historiography of Johnson for a long time, was very sympathetic to Johnson, partly because there were racist historians who believed that he was wronged. But they were also sympathetic partly because this idea that the unconstitutionality of this statute undermined the entire effort. (Several decades later, the Supreme Court strikes down a very similar statute.)