White House Lays Ground for a Lame-Duck Defense
Washington Post Staff Writer
Wednesday, December 9, 1998; Page A16
Even as it tried to fend off impeachment yesterday, the White House began preparing for the worst by laying out a possible constitutional challenge designed to invalidate any vote by the lame-duck House to impeach President Clinton next week.
As part of its defense presentation to the House Judiciary Committee, the White House introduced expert testimony asserting that articles of impeachment would expire on Jan. 3 along with the 105th Congress. Under this argument, the new House would have to vote again – this time with five more Democrats who could turn the outcome if next week's vote is as narrow as predicted.
"Like all other bills, a lame-duck bill of impeachment loses its constitutional force with the death of the House that passed it," Bruce Ackerman, a Yale Law School professor who has studied the 1868 impeachment of President Andrew Johnson, told the panel.
White House officials said they have no plans to cite this argument to reverse a House impeachment vote, but they did not rule it out. The president's lawyers called Ackerman as a witness knowing how he would testify – indeed, they highlighted his point in a letter to the committee Monday.
But Ackerman's theory conflicts with other constitutional experts, who maintain that congressional procedures and precedents make clear that impeachment is not like any other legislation and would survive the demise of this Congress. To rebut Ackerman, Republicans yesterday introduced a nine-page legal analysis from the Congressional Research Service concluding that "an impeachment proceeding may be continued from one Congress to the next."
Jefferson's Manual, which is used as a guide on Capitol Hill, says "an impeachment is not discontinued" by the end of a Congress. Several judges have been impeached by the House in one Congress and tried by the Senate in the next, including John Pickering in 1803-04, Harold Louderback in 1933 and Alcee L. Hastings in 1988-89.
But the situation has never come up with a presidential impeachment, and Ackerman contended that articles of impeachment approved by the House this month would be subject to a motion to quash next month, to be ruled on by Chief Justice William H. Rehnquist, who would preside over any impeachment trial in the Senate.
He based his interpretation on the 20th Amendment to the Constitution, which was ratified in 1933 to curtail lame-duck legislative activity by moving up the date a new Congress takes office from March to January. Ackerman noted that the Pickering and Louderback impeachments occurred before the 20th Amendment and that Hastings's subsequent impeachment did not occur during a lame-duck period.
Charles Tiefer, a former deputy House counsel who wrote the 1,000-page guidebook called Congressional Practice and Procedures, said no precedent requires that articles of impeachment be revoted by the next House, though he said he was "struck by the strength" of Ackerman's case.
Tiefer suggested the next House would have another vehicle for thwarting impeachment should it disagree with the judgment of its predecessor: It could refuse to appoint the "managers" for a Senate trial. If that happens, he said, "we enter a constitutional twilight zone where the Senate looks around and says, 'Where are the prosecutors of these articles?' Quite likely, the Senate would conclude the articles had lapsed."
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