I am absolutely enthralled by Stephen Carter’s new novel, The Impeachment of Abraham Lincoln. The story provides an alternate history: Abraham Lincoln survives the assassination attempt, and instead Vice President Andrew Johnson is killed. A large portion of the novel is dedicated to the impeachment trial, at which Lincoln is represented by amazing attorneys.

There are a number of fascinating constitutional issues that are presented as matters of first impression. Mind you, in 1867, the Constitution was largely a blank slate.

First, the managers of the impeachment argued that Lincoln “violated the liberties of the people” by “order[ing] the seizure of copies of every telegram sent in the United States.” Lincoln’s attorney countered, and argued that “telegraph messages aren’t private.”

“A message sent by telegraph is read by the man who transcribes it at the telegraph office, the man who sends the code, the man who receives the code at the other end, and the man who writes out the words. The  man who delivers the message might read it, too. So might the man to whom we give the assignment of carrying our message to the telegraph office in the first place . . . . So the President’s order did not violate anybody’s privacy. Besides, there is no right to privacy in the Constitution. A right to property, surely. But the message forms–the actual papers seized–well if they constitute the property of anybody at all, I suppose they would be the property of the telegraph company. Let the Western Union Company, if it chooses, come to the Capitol to seek damages. Let the company go into court. The company will lose. In wartime, the government has a call upon the property of the people if that property is necessary to the war effort. The president and his advisers judged that seizing the telegraph form was necessary. I should think that would be the end of the debate.”

First. it is interesting how this argument presages the Third Party Doctrine, whereby communications shared with a third party lose any expectation of privacy under the Fourth Amendment. I would have liked to see a floor debate about privacy for the mails, but none was present in the book. In fact, after the lawyer made this argument, everyone else was dumbfounded in silence.

Second, and perhaps more importantly, this argument countenances expectations of privacy decades before Warren & Brandeis’s seminal article, The Right to Privacy, and a century before Katz (of course, Stephen Carter is writing with a century of hindsight, but the arguments made at the trial were those that could have been imagined based on the concepts known at the time).

Third, even assuming that the Fifth Amendment did not yet contain a right to privacy (no 14th Amendment yet, in this world), the Fifth Amendment still has a right to property–a right that protects the transmissions. However, the only party with standing would be the Telegraph Company. The person sending the message has no standing to complain about the seizure.

Fourth, the general resort to the Executive’s inherent wartime power rings true through all Presidencies. Just substitute seizing telegraphs with intercepting electronic communications via the Patriot Act.

One other constitutional issue that I had never considered concerns Article I, Section 3 and the role of the Chief Justice during impeachment trial.

When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

During the impeachment of the President, the Chief Justice of the United States presides. Should the Chief Justice be counted among the 2/3 of Members present to convict? It says “Members.” Not “Senators.” In other words, should the Chief have a vote? If the Senate is operating as a Court, with the Chief presiding, and each member acting as part of the court, would it really be that strange for the presiding officer to also vote? On our own Supreme Court, all 9 justices participate as a court, and the presiding officer also votes for the final disposition. I think in the impeachments of Clinton, and Johnson, the Chief did not cast a vote. But textually, is this foreclosed?

Interestingly, during Lincoln’s impeachment, Chief Justice Salmon Chase–whom Lincoln appointed to replace Roger Taney–had aspirations for the Presidency. So his calculations regarding the trial are fascinating.

Relatedly, how should evidentiary issues be resolved? In this trial, appeals from the Chief’s evidentiary rulings went to the body as a whole, and could be overturned by a majority vote of the members present. Is this textually permitted?

Another issue has to do with who would become President in case Lincoln was removed. In the book, Vice President Andrew Johnson had been assassinated. At the time, the President Pro Tempore of the Senate was next in line to the presidency after the VP. Could the President Pro Temp–the member of the Senate who would become President–vote to remove the President. Is there some inherent conflict of interest there? That is, you are voting to remove the person whose office you would ascend to? Not sure if this was ever resolved, but a fascinating issue.

I am about 2/3 of the way through the book. The trial part is riveting. I may write about it again.