The House should consider the president’s incendiary rhetoric as a separate offense, worthy of its own article of impeachment, as it was in 1868.
Over the weekend, in a rage over impeachment, President Trump accused Representative Adam Schiff of “treason,” promised “Big Consequences” for the whistle-blower who sounded the alarm about his phone call with President Volodymyr Zelensky of Ukraine and shared a warning — from a Baptist pastor in Dallas — that impeachment “will cause a Civil War like fracture in this Nation from which our Country will never heal.”
We’re already on to the next news cycle, but we shouldn’t lose sight of what happened with those tweets. The president was using the power and influence of his office to intimidate a witness and threaten a member of Congress with prosecution (of a crime still punishable by death), before raising the specter of large-scale political violence should lawmakers hold him responsible for his actions. If he had said this anywhere besides Twitter — in the Rose Garden or at a campaign stop — we would see it as a clear and unacceptable abuse of presidential rhetoric, his authoritarian instincts at work.
The House impeachment inquiry will almost certainly focus on Trump’s attempt to solicit foreign intervention in the 2020 election. If it goes beyond that, it might also include the president’s corruption and self-dealing. But in whichever direction the investigation goes, the House should consider Trump’s violent rhetoric as a separate offense, worthy of its own article of impeachment.There’s precedent for making transgressive presidential speech a “high crime or misdemeanor.” The 10th article of impeachment against Andrew Johnson in 1868 was about his language and conduct over the course of his term. Two years earlier, Johnson had taken a tour of Northern cities to campaign against Radical Republicans in Congress and build support for his lenient policies toward the defeated South.
At first, it was a success, with large crowds cheering the president during events in Baltimore, New York and Philadelphia. But his fortunes turned in Cleveland, where the stubborn and taciturn Johnson unraveled in the face of hecklers. “The president was frequently interrupted by cheers, by hisses and by cries, apparently from those opposed to him in the crowd,” William Hudson, a reporter for The Cleveland Leader, wrote. When a heckler yelled, “Hang Jeff Davis!” — referring to the former leader of the Confederacy, then held at Fort Monroe in Virginia — Johnson replied, “Why don’t you hang him?” When another shouted, “Thad Stevens” — the chief Radical Republican in the House of Representatives — a now angry Johnson responded with “Why don’t you hang Thad Stevens and Wendell Phillips?” Phillips had been a leading abolitionist.
Johnson continued to speak, struggling to gain the upper hand with the crowd. By the end, however, the president was unhinged. “Come out where I can see you,” he said to one heckler. “If you ever shoot a man, you will do it in the dark and pull the trigger when no one else is by to see.” After witnessing this disastrous performance, an aide urged the president to consider the dignity of the office. Johnson was dismissive. “I don’t care about my dignity,” he reportedly said.
The tour didn’t improve. In St. Louis, as in Cleveland, hecklers yelled “New Orleans” in reference to a massacre that summer in which white Democrats, most of them ex-Confederates, attacked a large gathering of black Republican marchers, killing nearly 50 people. In response, Johnson said the “riot at New Orleans was substantially planned.” But he blamed Radical Republicans who, he said, encouraged the city’s “black population to arm themselves and prepare for the shedding of blood.” At this point, someone in the crowd called him a “traitor,” which — as Garry Boulard recounts in “The Swing Around the Circle: Andrew Johnson and the Train Ride That Destroyed a Presidency” — Johnson angrily denounced with one of the strangest tirades of the tour: “I have been traduced! I have been slandered. I have been maligned. I have been called Judas — Judas Iscariot and all of that.”
By the time it was over, Johnson had been humiliated and his reputation was in tatters. In The Atlantic Monthly, the essayist Edwin Percy Whipple summarized elite opinion of Johnson’s tour:
Never before did the first office in the gift of the people appear so poor an object of human ambition as when Andrew Johnson made it an eminence on which to exhibit inability to behave and incapacity to reason. His low cunning conspired with his devouring egoism to make him throw off all the restraints of official decorum, in the expectation that he would find duplicates of himself in the crowds he addressed and that mob diffused would heartily sympathize with Mob impersonated. Never was a blustering demagogue led by a distempered sense of self-importance into a more fatal error.
All of this would resurface in 1868, when the House adopted its 11 articles of impeachment against the president. Among them was a reference to his summer swing through the North — to the idea that Johnson had sullied the office of the presidency with dangerous, demagogic rhetoric. In its 10th article of impeachment, the House of Representatives accused Johnson of being “unmindful of the high duties of his office and the dignity and proprieties thereof.” His behavior, they argued, was an “attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States” and to “impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof.”Article 10 was divisive. Not necessarily because the Congress or its Republican majority had any love for Johnson, but because it raised difficult political and constitutional questions. How could anyone actually prove that Johnson meant to “impair and destroy” the regard of Congress? And while it’s true the president has unique duties, it’s also true that the president is entitled to the same freedom of speech that any other citizen has. His rhetoric was offensive, but was it impeachable?
Johnson’s opponents in the Senate opted not to test the case. They tried the president on just three articles of impeachment. And if not for the last-minute (and arguably self-interested) defection of Senator Edmund Ross of Kansas, Johnson would have been cast from office, the first president to be impeached and removed.
This is all to say that Trump easily meets the Andrew Johnson standard for impeachable rhetoric. For nearly three years, he has used the presidency to stir anger and incite hatred. He has rallied crowds with racist demagogy and threatened opponents with violence from his supporters. “I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump — I have the tough people,” Trump said in an interview with Breitbart in March. “But they don’t play it tough — until they go to a certain point, and then it would be very bad, very bad.” On Tuesday, he accused his Democratic opponents of orchestrating a coup.
If impeachment is about a pattern of behavior — if it’s about the sum total of a transgressive, unethical and unlawful presidency — then this rhetoric must be part of the final account. And it is a difficult case; we don’t want to criminalize speech. But presidential rhetoric isn’t just speech — it is a form of power, and like most of his other powers, Trump has been abusing it.
In his testimony before the House Oversight Committee, Michael Cohen told Members of Congress that Trump speaks in a “code”, a way to communicate sensitive and potentially criminal information through meaningful looks, winks and nods. Trump’s “Art of the Deal” co-author, Tony Schwartz, breaks down the “code”, telling Ari Melber Trump would often “literally wink” while communicating information that Trump was always “aware of what the impact might be”. Schwartz also comments on Trump calling Michael Cohen a “rat”, telling Melber Trump “loves violence”.