President Andrew Johnson Impeachment Trial: 1868

Johnson's lawyers attempted to introduce evidence showing that Johnson's opposition to the Tenure of Office Act was no more than a legitimate desire to test the constitutional validity of the act in the federal courts. The defense offered to produce witnesses who could testify that Johnson's opposition to the act on constitutional grounds had long preceded his quarrel with Secretary of War Stanton. Chief Justice Chase ruled that this evidence was admissible. Although a two-thirds vote of the Senate was necessary for a conviction of impeachment, it took only a simple majority vote to decide procedural matters. Therefore, despite Chase's rulings, the Senate repeatedly voted to prevent the defense from producing its witnesses concerning Johnson's legitimate opposition to the act.

The second prong of the trial managers' attack concerned Johnson's public statements. But the defense argued that the Senate could hardly impeach Johnson for exercising the right of freedom of speech that the Constitution gave to every American. Butler's retort made little legal sense but was good rhetoric and played well with the anti-Johnson public of the North:

Is it, indeed, to be seriously argued here that there is a constitutional right in the President of the United States, who, during his official life, can never lay aside his official life, can never lay aside his official character, to denounce, malign, abuse, ridicule, and condemn, openly and publicly, the Congress of the United States: a coordinate branch of the government?