He was a true “super lawyer,” one who tried more than thirty cases before the Supreme Court. He was also a passionate civil libertarian, with a national reputation.
And he felt the U.S. House-crafted impeachment against a president was a politically-motivated sham. To the surprise of many, he joined the defense team of the embattled president — even though he was affiliated with another political party.
Like Prof. Alan Dershowitz on Friday, Benjamin R. Curtis in 1868 made headlines worldwide by signing on as a defense attorney for the impeached president with whom he had little in common — Andrew Johnson was a Democrat, Curtis a Whig (although the party had morphed into the fledgling Republican Party years before).
Much as the news of Dershowitz’s joining “Team Trump” was a surprise to the political world, so, too, was the word that Curtis would be at the defense table for Johnson. The Boston lawyer was himself a former justice of the U.S. Supreme Court who, after six years, resigned in 1857 following his scathing dissent in the notorious “Dred Scott” case.
The high court had ruled 7-to-2 that slaves were not citizens but property. Curtis’s dissent countered that five states had granted them citizenship and thus living on free soil gave them freedom. A Boston newspaper published Curtis’s ruling before it became public, thus beginning a nasty feud between the justice and Chief Justice Roger B. Taney (who wrote the majority decision in “Dred Scott). Curtis finally resigned from the high court, although his publicly stated reason was a desire to earn more money for his family.
Curtis’s passion for civil liberties grew only stronger in the private sector. In October, 1862, he published “Executive Power,” a pamphlet that dissected and condemned President Lincoln’s suspension of the writ of habeas corpus. If the president had an “implied constitutional right” to suspend habeas, Curtis wrote, he would then have “the same right, for the same reason, to disregard each and every provision of the Constitution, and to exercise all power, needful, in his opinion, to enable him ‘best to subdue the enemy.’”
Arguments for growing executive power, he concluded, “must be fatal to a free society.”
In taking on Johnson as a client, Curtis was defending a Democratic president before a Republican-controlled Senate. Johnson had been impeached on 11 charges, the most serious of which was that he violated the Tenure of Office Act by attempting to fire Secretary of War Edwin Stanton. The Act (later found to be unconstitutional) forbade removal of presidential appointees without Senate approval.
As lead counsel, Curtis led off with an opening argument that lasted two days. He made a strong case that impeachment was a judicial act and not a political act and thus required a full hearing of evidence.
Curtis biographer Stuart Streicher concluded that the former justice’s opening argument “not only marked a turning point in the trial but also shaped the understanding of presidential impeachment.”
The Senate voted by 35 to 19 on May 16, 1868 to convict Johnson of “high crimes and misdemeanors.” But because the Constitution required a two-thirds vote to remove, the President dodged the political bullet and remained in office.
Curtis would go back to his thriving practice and at the time of his death in 1874, his estate was valued at $650,000 — a princely sum for the time.
Alan Dershowitz will be remembered for many things—as lawyer, professor, author, and TV personality — but, whatever the outcome in the coming trial, his name will be forever linked to the words “presidential impeachment.” Just like Benjamin Curtis’s.
John Gizzi is chief political columnist and White House correspondent for Newsmax. For more of his reports, Go Here Now.