THE IMPEACHMENT TRIAL of President Andrew Johnson presented a strange phenomenon that has gone unnoticed in histories. Besides rebutting the specific charges against him, Johnson's counsel assailed the impeachment as a violation of the Constitution. By the nature of those charges, they contended, the proceeding violated the clause forbidding Congress to pass bills of attainder. Lawyer after lawyer hammered on that theme, but not once did a House Manager reply. The reason appears obvious: they regarded silence as a better strategy than unconvincing denials.
What is a bill of attainder? The Supreme Court defined it in the very year of the Johnson impeachment, when the Court struck down two laws passed at the close of the Civil War that required lawyers and clergymen to take loyalty oaths as a precondition to practicing their profession. Said the Court in Cummings v. Missouri, holding the oath for lawyers to be in violation of the Constitution:
"A bill of attainder is a legislative act which inflicts