Thursday, October 12, 2023

John Bingham on the President as an "officer of the United States"

Gerard N. Magliocca

Another issue in the Section Three debate is whether the President is an "officer of the United States." There are several angles to that discussion, but let me focus on one. How did John Bingham talk about that question at two high-profile moments during Reconstruction?

First, in 1865 Bingham gave the closing argument in the military trial of the conspirators to President Lincoln's assassination. Here is how he described the charges to the court:

"[C]onspiracy, in aid of a rebellion, with intent to kill and murder the Executive officer of the United States, and commander of its armies, and of the murder of the President in pursuance of that conspiracy."

Thus, Bingham equated "the Executive officer of the United States" with the President. He did the same thing in an 1868 speech in the House, where he said: "It is vain that gentlemen stand here and intimate that the President, because he is the executive officer of the United States . . . is above any statute."

Later in 1868, Bingham gave the closing argument in President Johnson's impeachment trial. Bingham argued that Johnson committed a "high crime and misdemeanor" by violating the Tenure of Office Act based on his view that the Act was unconstitutional. (Set aside what you think of that claim for purposes of this post.) Bingham explained that it was clear that a judge would not be "charged with usurpation" if he set aside a law as unconstitutional:

"And is it not equally clear that a mere executive official of the United States, clothed with no judicial authority, and bound by his authority to take care that the laws be faithfully executed, who should thus decide or attempt to set aside as null and void a law of the United States, would be guilty of usurpation?"

Again, Bingham said that the President was an "official of the United States." He was not alone in this usage, of course, as President Johnson and many others at the time made the same point.


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