On Monday, at the final public hearing of the House Jan. 6 committee, Representative Bennie Thompson said that any attempt to overturn the legitimate results of an American election, impede the peaceful transfer of power or foment an insurrection must never be allowed to happen again. To that end, Representative Jamie Raskin firmly announced that the committee was making four criminal referrals whose center, in each, was Donald Trump, the man who hatched a scheme that would, if successful, defraud Americans of their sacred right to have their vote count.
These unprecedented referrals suggest that Mr. Trump, who as president took an oath to uphold the Constitution, not only violated that oath but also committed a series of specifically indictable crimes. One of these referrals — for the crime of inciting an insurrection — is the most stunning, the most unpredictable and the most crucial, for its implications and its remedy, which includes barring the former president from holding political office.
In making these referrals, the committee was certainly considering the past as well. Representative Liz Cheney spoke movingly of her great-great-grandfather, Samuel Fletcher Cheney, who served in the Union’s 21st Regiment, Ohio Infantry, during the Civil War. After the war, he marched with his fellow soldiers in the Grand Review of the Armies, passing President Andrew Johnson in the reviewing stand. She might also have added that Johnson, the 17th president of the United States, would soon be impeached. Like Donald Trump. And like Donald Trump, he was acquitted.
Johnson then returned to office, almost as if nothing had happened. That’s a cautionary tale.
After Ulysses S. Grant won the election of 1868, Johnson went home to Tennessee, where he began to plot his comeback. Since he possessed a talent for uniting moderate and radical Republicans along with Democrats and former secessionists, many of whom either hated him or now wanted nothing more to do with him, it wouldn’t be easy. But it wasn’t illegal.
He hadn’t tried to overturn the election of Grant. He hadn’t impeded the peaceful transfer of power. (But like Mr. Trump, he refused to attend his successor’s inauguration.) He had abused power, usurping the function of Congress, which has the right to determine the qualifications of its own members — all the more critical after a civil war in which 11 states had been in rebellion.
As for inciting or aiding an insurrection, that was arguable. Though a staunch Unionist, in 1866 Johnson had stood by silently during the massacre in New Orleans that prevented a state convention from amending its Constitution to give Black men the vote. The mob included members of the New Orleans police department, which was largely composed of former rebels. They were supported by the mayor, a Confederate sympathizer, who had been jailed during the war as a traitor and elected even before he was pardoned.
An 1867 congressional investigation into that tragedy reported that more than 35 people, the vast majority of them Black, had died, and roughly 145 people were wounded. It also found that the massacre would never have happened without Johnson’s tacit approval. The abolitionist Wendell Phillips predicted that “what New Orleans is today, Washington will be” — “ruled by the president and his mob.”
In 1868, when he was finally impeached, the 10th article of impeachment accused Johnson of ridiculing Congress and setting aside its authority, and the 11th article involved his obstructing its laws. During the impeachment trial, when Representative John Bingham of Ohio argued for the president’s conviction, he reminded senators that “none are above the law; that no man lives for himself alone, ‘but each for all.’” With tears in his eyes, he concluded that “position, however high, patronage, however powerful, cannot be permitted to shelter crime to the peril of the Republic.”
But since the Senate did not convict Andrew Johnson, there was no way to disqualify him from holding office. He may have abused power, ridiculed Congress, arrogated to himself a form of Reconstruction that enshrined white supremacy, but the arguable criminal charge (violating the Tenure of Office Act) did not stick — and even if it had, it was an impeachment tribunal, not a court of law, that had charged him.
So a disgraced Johnson returned to Washington in 1875 as a senator from Tennessee. He did not believe he was disgraced. He believed he had done nothing wrong, and though he might have been a bit foul-mouthed, he wanted to know: Who wasn’t? Certainly no one had ever suggested a criminal referral. That is new. Until this week, nothing like it had happened. And the implications are far-reaching.
“So we are to have Andrew Johnson back again,” the Washington journalist Mary Clemmer Ames wrote with some surprise. Not only did he return to the Senate (though he died only a few months after he was sworn in), by the 20th century, history resurrected Andrew Johnson. He would be seen just as he saw himself, the persecuted victim of vicious political enemies.
Which brings us to the investigation into the Capitol riot and the Jan. 6 committee’s four referrals to the Department of Justice for obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and for inciting or assisting an insurrection or offering aid and comfort to its participants. The last is the most important. Violating 18 U.S.C. 2383, which derives from a law dating to the Civil War, carries the penalty that, if convicted, Donald Trump “shall be incapable of holding any office under the United States.”
Here, at last, is an accountability that goes beyond what the impeachment managers, regardless of their brilliant arguments, were able to do in 2021. Here is the uncompromising statement that while an insurrection is an impeachable offense — Mr. Trump was after all impeached by the House of Representatives — it is also unequivocally and horribly a criminal act.
This specific referral then holds out the hope that Mr. Trump will not be permitted to hold elective or appointed political office ever again. That was arguably the point of the impeachment: to make sure that his political career had ended.
Now, whatever the Department of Justice decides to do and whatever the special counsel Jack Smith discovers or determines, the Jan. 6 committee has achieved what the impeachment of Mr. Trump could not: a series of referrals that caps an expansive and heart-rending investigation into the abuse of power, the obstruction of Congress and the aiding and abetting of a rebellion, condoned, if not designed, by an American president. That president will be remembered as lawless, indicted or not, and will be disgraced in perpetuity, as Andrew Johnson should have been.
Brenda Wineapple is the author of “The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation.” She is at work on a book about the Scopes trial.
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