Posted on 01/25/2021 10:18:35 AM PST by ChicagoConservative27
At the time of Andrew Johnson’s trial, the office of Vice President was vacant. So Benjamin Wade had to take the place of the non-existent Vice President.
I just read that the only reason Johnson survived that is because many thought Wade would be worse.
here is another interesting tidbit
Chase bank is named after the Chief Justice Salmon Chase that presided over Johnson’s impeachment. He was a descendent of a an impeached Supreme Court Justice Samuel Chase
This bit about the word “act” is funny
Of course he can. Who’s gonna stop him?
No connection to the MLB pitcher Wade Davis (who pitched the last few years for the Rockies but didn't do well in 2020 and apparently is headed for the minor leagues).
Not his call. As the court has found in the past, impeachment is a political process, not a legal one. "Not justiciable" in their terminology.
The Founders spent a lot of time justifying the process for impeachment that they came up with, and why specifically they didn't want them tried in the Supreme Court. To imagine then that they'd include a backdoor where the Chief Justice can just throw out the case for any reason at all is ridiculous. You're literally arguing that a process the Constitution says requires two-thirds of senators can alternatively be decided by one person.
Much thanks for that input PJ2. You cleared up a lot of the mystery about the process for all of us.
Is this the same guy that suddenly disappeared from the impeachment trial after claiming that a President can engage in quid pro quo if it helps him get elected in the public interest?
Btw, despite saying he would be part of this impeachment trial he now says he won’t be a part of the defense.
If there is a trial, I look forward to liberal frustration as Donald Trump continues to dominate the news and Congressional proceedings.
How does this withstand the separation of powers?
Wouldn’t this give the Executive Branch the same authority against Congress should SCOTUS similarly stand down?
No, he has intentions of taking it to the supreme court just after your friends in the senate get done with the trial.
BTW. Why are you around here? You need to go on a democrat site and spout your BS
Maybe you should pay more attention to the lawyers on this site
There is a name for you.
Republican in name only.
Besides that. I wouldnt trust anyone-especially LAWYERS that think they know more about the constitution than the likes of Dershowitz. Even Levin. Or Jonathan Turley..
Article I states that the power of impeachment and trial are shared by the two houses but limits the power of Congress by expressly stating that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”
shall not extend further than to removal from Office,
shall not extend further than to removal from Office,
shall not extend further than to removal from Office,
shall not extend further than to removal from Office,
shall not extend further than to removal from Office,
No, the name for me is one who can use discernment...just like I used with L Lin Wood and Sydney Powell.
I don’t march in lock step with the craziness.
Now you make up excuses?
Related to Mitt Romney are you?
I am not now nor have I ever been part of the radical right.
L Lin Wood is crazy, IMO, and those that are following his nonsense deserve to get looked at by the FBI, IMO.
In their attempt to do “so”.
They are in REALITY declaring Donald Trump the ONLY current legitimate President of the United States.
Thank you!!
At the time of Andrew Johnson’s trial, the office of Vice President was vacant. So Benjamin Wade had to take the place of the non-existent Vice President.
Accurate that the VP position was vacant, inaccurate to claim that Ben Wade "had to" take the place of the VP as the presiding officer. Ben Wade was not required to do so. It was a low point in American politics, for the reasons set forth in the Senate in objection to this unseemly act on the part of Wade and the Senate.
https://archive.org/details/trialofandrewjohn03john
Trial of Andrew Johnson, Vol III, Published by Order of the Senate, Government Printing Office, 1868
Pp. 388-401, In Senate, March 6, 1868, contains the verbatim debate over whether Sen. Ben Wade could be sworn in.
[excerpts]
In Senate, March 6, 1868.The CHIEF JUSTICE. The Senate will come to order. The proceedings of yesterday will be read.
The Secretary read the “proceedings of the Senate sitting on the trial of the impeachment of Andrew Johnson, President of the United States, on Thursday, March 5, 1868,” from the entries on the journal kept for that purpose by the Secretary.
The CHIEF JUSTICE. At its adjournment last evening the Senate, sitting for the trial of impeachment, had under consideration the motion of the Benator from Maryland, [Mr. JOHNSON,] that objection having been made to the senator from Ohio [Mr. Wade] taking the oath, his name should be passed until the remaining members have been sworn. That is the business now before the body. The senator from Connecticut [Mr. DIXON] is entitled to the floor on that motion.
[...]
And the question for this tribunal now to decide is, whether, upon the trial of the President of the United States, the person holding the office of President of the Senate, and in whom the office of President of the United States, upon the conviction of the accused, will immediately vest, can be a judge in that case. That, sir, is the question before us.
[...]
Before proceeding to the consideration of the articles of impeachment the presiding officer shall administer the oath hereinafter provided to the members of the Senate then present, and to the other members of the Senate as they shall appear.
[...]
When interrupted, I was saying that in the event of the conviction of the President of the United States upon the charges brought against him, and his removal from office, there was a direct, apparent interest in the senator from Ohio, the President pro tempore for the time being of this body, which rendered it improper for him to act as a judge.
[...]
Now, Mr. President, what is the question before this body? Is the senator from Ohio so interested in the result of this trial that he cannot properly, under the Constitution and under the rules, be sworn in as a member of the tribunal?
[...]
Mr. DIXON. I was upon the question of interest. The objection made to the honorable senator from Ohio, as I understand it, is that he is interested in the result of this decision. It became necessary for me, therefore, to consider what was his interest, and in order to ascertain that it was necessary to consider what was the advantage or disadvantage that he was to receive or to avoid by the result of his action. I was considering the'question, what is this office of the President of the United States, which is the matter in controversy? I was saying that it was an object worthy of the ambition of the highest and most distinguished senators in this body or of the most distinguished citizen of the United States, not because of its dazzling surroundings, its vulgar trappings; not because a man in that position breathes the atmosphere of adulation, so dear to human nature; not because he has an opportunity, which is still more dear to a generous mind, of doing favors to his friends, or even ( which might be equally dear to men of ignoble character) punishing his enemies, but because it is a position in which the occupant of this great office can do immense good to his country; he may benefit the human race; he may at this time imagine that he might restore a dissevered and disunited country to prosperity and to Union; and for that reason a man of the very highest character and of the purest motives might properly aspire to this lofty position; and I venture to say that with that motive operating upon a human mind it would be nothing short of miraculous if he could be impartial. Nothing short of the power of Omnipotence, operating directly upon the human heart, could, under those circumstances, make any human being impartial.
Then, sir, such being the interest, what is the manner in which this subject is treated by the Constitution of the United States! It maybe said that the objection does not come within the letter of the Constitution. Nor am I here to say that the Constitution of the United States expressly prohibits a member of the Senate, acting as presiding officer pro tempore, from sitting as a judge in this or a similar case. I am not prepared to say that there is within the letter of the Constitution an express prohibition. But, sir, is it within the spirit of the Constitution? I take it we are here to act, not merely upon the letter, but upon the spirit of that instrument. I take it, at least, that when we are under oath to act impartially, according to the Constitution and the laws, in a criminal proceeding, the spirit of that Constitution and the spirit of those laws are to govern our action. What is the language of the Constitution on this subject?
The Vice-President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided.
The Senate shall choose their other officers, and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the United States.
The Senate shall have the sole power to try all impeachments. When sitting for that purpose they shall be on oath or affirmation. When the President of the United States is tried the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy apy office of honor, trust, or profit under the United States, &c.
Now, sir, there is no provision in the Constitution of the United States that the acting Vice-President of the United States, the President pro tempore of the Senate, upon a trial of this kind shall not vote. It seems to have been, possibly, strictly speaking, an omitted case. The provision is, that the Vice-President of the United States, under those circumstances, shall not even give the casting vote which he is entitled to give when the Senate is equally divided. That is his sole power in this body; he can only give a casting vote; and be cannot proceed to give a casting vote in a trial of this kind. And why? What was the reason of that provision? The reason of that provision has already been discussed in this body. The senator from Massachusetts attempted to explain it. Other senators gave a reason. It seems to me the reason is obvious. It needs no explanation; and I might say, further, that it is not the custom and the habit of the Constitution to give reasons for its provisions. The senator from Massachusetts says that the Constitution gives no reason for this provision. The Constitution gives a reason, 1 believe, for very few, if any, of its own provisions. But in this case the reason was so palpable, so manifest, that it was not necessary, even in contemporaneous construction, to give a reason for the provision. The reason was perfectly plain. It was because there was so direct an interest in the Vice-President of the United States that it was deemed improper that he should act; or, in the language of the present presiding officer of this body, the Chief Justice of the United States:
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.
That undoubtedly was the reason of this provision. I have no doubt that the framers of the Constitution went further back. They acted upon principle. They knew that in the very nature of things, in common justice, a man could not be a judge in his own case. They knew that the provisions of the common law prohibited a man from being a judge in his own case. They probably remembered what has been said by one great commentator, (Blackstone,) that the omnipotence of Parliament was limited in this respect, and that body could not make a man a judge in his own case. Probably without that provision in the Constitution the Vice-President would have been prevented from acting under those circumstances. The Constitution provides that the two houses may make rules for their own action; and the House of Representatives has proceeded to make a rule that no member shall cast a vote in which he is interested. This body has not as yet made such a rule, I suppose, because it was thought impossible that any senator should offer or attempt to vote in a case in which he himself was interested. But, sir, this body has made particular rules applying to particular cases; and when the interest has arisen, this body has decided that the party having that interest could not act, as in the case of Mr. Stockton, of New Jersey.
This being the constitutional provision with regard to the Vice-President of the United States when he sits in that chair as the presiding officer of this body, and the President of the United States is tried for an offence which will deprive him of an office which will fall by his removal upon the Vice-President, what is the character and meaning and spirit of the Constitution in a case like that before us? Why, sir, the reasons exist as strongly in this case as in the other. If it would shock humanity, if it would violate every feeling of justice throughout the world, for a man to act in his own case in the first instance, would it not in the latter? I happen to have before me an extract from the speech delivered a few days ago by the honorable senator from New York, Mr. Conkling.] He gives in his own forcible and striking language the reason for the rule:
The reason in the case of the impeachment of the President for calling in some one to preside in lieu of the Vice-President is obvious. The Vice-President being next to the President in the line of succession, the impropriety of his doing anything in a trial which, in one event, would result in his own advancement, is clear.
It can hardly be said that such a case would be provided for by calling some senator to the chair, because the fact of a senator being selected to preside would tend in some degree to his advancement also in case of the conviction of the President.
And so careful, so particular, so scrupulous was the honorable senator from New York, that it seemed to him that the reason of the rule applied to any senator called to the chair of this body, being selected to preside, as that would tend in some degree to his advancement in the case of the conviction of the President.
He proceeds to say:
A senator made President of the Senate pro tempore even during a trial of impeachment might expect to continue such President in the event of the advancement of the regular presiding officer to supersede the President of the United States. These and other considerations of safety and decorum indicated the propriety of going outside the Senate for an officer to occupy the chair when the President should be brought to the bar, and nothing could he more natural or dignified than to select the head of one of the three branches of the government. The Chief Justice, being separated from both the political departments of the government, was deemed the person most fit, by reason not only of his disinterestedness, hut of his learning and the great consideration of his position. These reasons might well have suggested tiie propriety of asking of the head of the bench that he should discharge, upon a great and solemn occasion, duties with which the highest subjects of England have ever been invested.
It is impossible for me, in stronger language than the senator from New York has used, to depict the impropriety of a member of this body, under the rules and under the Constitution, acting as a judge in a case which, in a certain event, is to place him in the presidential chair.
But, sir, it is said that this is not the time to raise the objection; that the objection may, perhaps; be waived by the party accused. If a President of the United States, chosen by the people, was actually on trial, and the Vice-President was in the chair, and proposed to sit and give the casting vote, and we objected to his being sworn, could it be said that possibly the President of the United States on trial might waive the objection ? Can he waive the objection? He is not alone interested. The people of this whole country are interested in the decision of this question. The party nearest in interest cannot waive it. If he were the President of the United States, actually chosen as such, and the Vice-President, actually chosen, were sitting in that chair, he could not waive that interest. He could not say, as one senator has supposed he might say, “I prefer upon the whole that that distinguished officer, knowing his impartiality and his love of justice, should preside in this trial, and give the casting vote in my case; I think it would be for my advantage.” That could not be allowed. If it is decided at all it is decided by the law and the Constitution and the general rules of right. Therefore, the objection that this point is made too early does not apply. It is an objection which, if it can be made at all, can be made here at this period, and should, be made now, for it is perfectly evident that the distinguished gentleman now proposed to be sworn in as a judge, the moment he is sworn in, can decide important questions long before the accused party shall present himself here or shall be summoned to appear here. There is the question of notice, the question of time, and there are various questions on which he will be called upon to give a decision. If, therefore, the objection is to be made at all, it must necessarily or with great propriety should be made at this time.
But, sir, I do not desire to go further into this general question. I have attempted to look at this question as a judge. I have attempted, in considering in my own mind, whether it be proper for the honorable senator from Ohio to act as a judge in this case, to act myself as a judge, and it has seemed to me in the highest degree improper in every aspect of the case. Sir, if there is anything desirable in this great trial, it is, in the first place, that impartial justice should be done; and in the second place, that it should appear to be just that mankind should say that impartial justice was done. If it should so happen that, under the construction to be given to the rules of this body and under the Constitution of the United States, the Senate should decide that the honorable senator from Ohio should be a judge in the case, that the judge of the President is to be his successor in office, is there not danger that it may be said that there is doubt as to the fairness of this trial? If the future historian, in recording the fact that the President of the United States had been removed from his office by impeachment, should also be compelled to record the fact that his successor was his judge, such a record would violate the sense of justice of the nation and shock the heart of the civilized world.
Mr. HENDRICKS. Mr. President, with the indulgence of the Senate, I will add a very little to what I felt it my duty to say upon this question yesterday, and then, as far as I am concerned, I shall relieve the Senate from any embarrassment about it.
It was said by the senator from Nebraska [Mr. Thayer] and the senator from Ohio [Mr. Sherman] that the senator who now proposes to take the oath is, in all respects, the equal of any other senator, and that no objection can be made to his right to vote upon any question upon which other senators have the right to vote. The general proposition I do not question, that, as a senator, he is the peer of any other senator, but to both gentlemen my reply is this: that by his own act he has accepted an office above that of senator, if I may so express it, which disqualifies him from participating in this trial. It is his act, not the act of the Senate, if the State of Ohio upon this trial be not represented by two senators.
The objection is made by the senator from Missouri [Mr. Drake], that the Senate is not in a condition to consider the question, for the reason that it has not yet organized itself for the purposes of the trial, and, therefore, there is nobody competent to decide whether the senator from Ohio may participate in that trial. Sir, the question that is presented by me arises frequently in the organization of bodies composed of many persons. It must necessarily arise in the organization of such bodies. It frequently arises in the organization of the House of Representatives, and it matters not whether the question comes up on the call of the first or the last name. When an objection is made to the right of a representative or to the right of a senator when this body is being organized at the commencement of a new Congress, how is that question to be decided? If at the commencement of the 40th Congress it had been objected that some senator could not then take the oath required by the act of 1862, and that objection was made when the Secretary of the Senate was midway in the call, who would decide it? The Senate would not then be organized; and yet it is a question incident to the organization itself, and a question that must be decided before the organization can be completed. I say, therefore, as this is a question that may arise, that is likely to arise, in the organization of any body composed of many persons, it must be met here precisely as in other cases.
I am not going to discuss the question whether, organized for the purposes of this trial, the Senate be technically and in name a court. In substance, Mr. President it is a court. It is to consider questions of law and questions of fact. It is not to consider legislative questions at all; and it cannot indulge in the considerations of public policy which may be indulged in in the Senate. The judgment of each senator is controlled altogether by questions of fact and of law. A body, by whatever name known, that has to consider only questions of fact and of law, and upon that consideration to pronounce a judgment, is a judicial body in its very essence and nature. It is no longer a legislative body.
Then, Mr. President, we propose (calling the body what you may) now to pass from the consideration of legislative questions to the consideration of the impeachment question; to cease to be a body for the consideration of legislative questions and to become a body for the consideration only of judicial questions. The first step in passing from the one character to the other is the appearance in the chair of The Chief Justice of the Supreme Court. The next step is the taking of an oath unknown to ns as legislators, but binding ns as judges—as judges of the questions of law and of fact that may arise. This is the step which we are now taking. We are now taking the oath to qualify us to discharge a peculiar and extraordinary duty—the oath that as judges we will be fair and just. The question arises during the organization of the Senate in that character and for that duty whether a senator is competent to participate in the adjudication. That question is incident to the organization of the Senate in its new character. I have not changed my opinion that that question properly arises in the administration of the oath.
I am not going to discuss further the merits whether the senator from Ohio, being now the President of the Senate and the possible suceessor should there be a vacancy in the presidential office, can participate in the trial, except to say this: that at one time I held the opinion that a senator having an interest in the result of a question might vote. I held that view in Mr. Stockton’s case; but the Senate, by a deliberate vote, overruled that view, and established it as the law of the Senate that he who is to be benefited by the decision to the extent of holding an office or acquiring an office cannot help to decide that question. I was surprised yesterday that the senator from Massachusetts [Mr. Sumner] should occupy in regard to this question a very different position from that which he occupied when he helped to decide the Stockton case. Where is the difference? Mr. Stockton was a member of this body. He had credentials that prima facie entitled him to participate in our deliberations. He was entitled to cast a vote upon any legislative question that should come up to the very minute of the decision of the Senate against him. He was for the time being a senator from New Jersey. When the question was, shall he continue to hold that office, the Senate said, without an express rule on the subject and no general parliamentary law, but on a universal sentiment of justice, as it was claimed then, right, and propriety, that he could not vote when his vote helped him to hold an office. I amaiot able to see, when the vote of the presiding officer of this body may enable him to hold the highest office in the nation, the distinction in the two cases. The Senate deliberately decided in that case that the interest disqualified for the time being the party from voting in the Senate.
But, Mr. President, I find that some senators, among them the senator from Delaware, [Mr. Bayard,] who agree with me upon this question on the merits, are of the opinion that the question ought more properly to be raised when the court shall be fully organized, when the party accused is here to answer. I do not believe that he can waive a question that goes to the organization of the body; I believe it is a question for the body itself. But upon that I find some difference of opinion: and when I find that difference of opinion among those who agree with me upon the merits, upon the main point, whether he shall participate in the proceedings and judgment who may be benefited by it—while I find some senators, who agree with me upon that question, disagreeing with me upon the question whether it ought to be raised now or when the senator from Ohio proposes to cast a material vote in the proceedings, I choose to yield my judgment—my judgment, not at all upon the merits; my judgment not at all upon the propriety and the duty of the Senate to decide upon its own organization; but I yield as to the time when the question shall be made in deference to the opinion of others, and for myself, sir, I withdraw the question which I presented for the consideration of the President of this body and of the Senate yesterday.
Mr. POMEROY. The senator proposes to withdraw the point which he made, and I think it can be done by unanimous consent. I hope unanimous consent will be given, and let it be withdrawn, and let us proceed to swear in the other senators.
Mr. HENDRICKS. It does not require unanimous consent. I can withdraw it myself.
Mr. Sherman and Mr. GRIMES. The senator has a right to withdraw it.
The CHIEF JUSTICE. The Chair understands that the senator from Indiana has withdrawn his objection.
Mr. POMEROY. But an appeal has been taken.
Mr. GRIMES. That makes no difference.
The CHIEF JUSTICE. The senator from Ohio will take the oath.
Mr. HOWARD. I beg to inquire whether the withdrawal of this particular motion affects the motion that was made by the honorable senator from Maryland? [Mr. JOHNSON.]
Mr. FESSENDEN. That falls with it, of course.
The CHIEF JUSTICE. All the questions incidental to the main question fall with the withdrawal of it.
Mr. JOHNSON. My motion was founded upon the other motion. If the first motion is withdrawn mine fail as a matter of course.
Mr. HOWARD. Very well, if that is the understanding.
The Secretary called the name of Mr. Wade, who advanced and took the oath.
Define right. No matter radical or not.
And just how did L Lin Wood get involved in this discussion?
Another diversion of yours?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.