CLAIM: “Never in history has a president been accused of crimes with the target constantly changing.” Rep. Louis Gohmert (R-TX)
VERDICT: Partly true. There is no recent precedent, but the Trump impeachment repeats the abuses of the House in the impeachment of President Andrew Johnson in 1868.
Rep. Gohmert argued in the House Judiciary Committee markup hearing on articles of impeachment Thursday that President Donald Trump had been the victim of an unfair process in which the “crimes” alleged kept changing, and disappearing. First there was Russia “collusion,” which was not found; then there was “bribery,” which Democrats dropped; and so on.
Gohmert was correct in the context of recent precedents. Both President Richard Nixon and President Bill Clinton faced impeachment inquiries after a special prosecutor or independent counsel completed a lengthy investigation of specific crimes. The crimes under investigation did change along the way: Clinton, for example, was investigated for the Whitewater real estate deal before the affair with Monica Lewinsky consumed the investigation. But by the time the investigations reached the House Judiciary Committee, it was reasonably clear what the topic would be.
Not so with the Trump impeachment, which is proceeding after Special Counsel Robert Mueller cleared him of Russia “collusion” and declined to recommend prosecution for obstruction of justice. The only precedent is the impeachment of Andrew Johnson.
Historians and legal scholars consider the Johnson impeachment an example of what not to do. George Washington University Law School Professor Jonathan Turley warned the House Judiciary Committee last Wednesday that it was following the Johnson precedent: “It is not a model or an association that this committee should relish.” But Saturday’s House Judiciary Committee staff report actually embraced the Johnson impeachment as a precedent.
And the similarities are striking.
Like the Trump impeachment, the Johnson impeachment was motivated by extreme political animus. Like the Trump impeachment, it began in secret. And like the Trump impeachment, the Johnson impeachment inquiry pursued one conspiracy theory after another in search of any impeachable act.
As historian David O. Stewart noted in his 2010 book, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy, the House Judiciary Committee, meeting in secret, first considered an accusation that Johnson had colluded with the Confederacy; then considered claims that he was linked to prostitution; then looked at a conspiracy theory that implicated him in the assassination of President Abraham Lincoln, whom he succeeded.
Stewart’s account of the inquiry is worth quoting, since it parallels the Trump impeachment inquiry so closely:
The House committee began formal (though secret) hearings on February 6 [of 1868, an election year]. The famous detective Lafayette Baker, who had tracked down John Wilkes Booth after the Lincoln assassination, testified first. Baker described a wartime letter he supposedly carried, but no longer possessed, on a date he could not recall, from Johnson to Confederate President Jefferson Davis. The detective did not know the contents of the letter but thought it implied that Johnson would “go with them.” Baker declined to state from whom he received the letter.
All the now-familiar elements are there: secret hearings; hearsay testimony; a patriotic witness, but with no direct evidence; subjective interpretations of a text; and a determination to shield the identity of a “whistleblower.”
As Stewart summarized: “The hearings never recovered, careening from unsupported allegations to nefarious innuendos, all at numbing length.”
In the end, the Judiciary Committee declined to draft articles of impeachment; those would await Johnson’s willful violation of the Tenure of Office Act, a trap the House created for that purpose.
(Gohmert later referenced that part of the Johnson impeachment in discussing the Democrats’ charge against Trump of “obstruction of Congress,” noting that the courts later found the Tenure of Office Act to be unconstitutional.)
Ultimately, Johnson survived the first articles of impeachment in the Senate by one vote. The House, stung — and partly chastened — by its surprising failure, soon withdrew the remaining articles, realizing that it had gone too far.
What makes the Trump impeachment different is that the House Judiciary Committee will have approved the results of a three-year witch hunt, without any pretense that the president has violated any law at all. Even the radical Republicans who pursued Andrew Johnson with such vengeful, partisan hatred had the good sense not to do that.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.