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Constitutional scholars consider Clinton challenge of lame duck resolution
Updated December 22, 1998
7:15 p.m. ET
WASHINGTON (Court TV) — A White House legal challenge to the impeachment of the president by a "lame-duck" House would be a long shot but not constitutionally frivolous, scholars say.
"Do the two articles of impeachment voted by the House expire when the 106th Congress takes over in January? I don't think anyone really knows the answer," says Daniel Farber, a University of Minnesota law professor. At the same time, he said the Senate could legitimately ignore the issue.
White House Chief of Staff John Podesta said the president's lawyers will consider making such a legal argument.
"Our legal team will take a look at that in the days to come," Podesta said over the weekend on CNN's Late Edition. "Some of the constitutional experts who have reviewed that matter believe that it's not consistent with the Constitution to have done this in a lame-duck Congress."
That idea was suggested by Yale University law professor Bruce Ackerman when he testified Dec. 8 on the president's behalf before the House Judiciary Committee. Ackerman argued that the 20th amendment prevented a lame duck House of Representatives from imposing an unpopular impeachment resolution on the nation — the newly elected House would have to vote to approve the articles.
The theory is that impeachment votes, like bills and nominations, evaporate with the end of one Congress and must be renewed.
"It's very dubious," says Allan J. Lichtman, professor and chair of the history department at American University. He argues that while the 20th amendment was passed with the intent to stop lame duck House sessions, the amendment does not explicitly invalidate them.
John Nagle, a Notre Dame University law professor, says his "best analysis" is that a lame-duck House can pass articles of impeachment to be tried by the Senate in a succeeding Congress.
The lame-duck issue was not raised when House impeachment of three judges were tried by the Senate after a new Congress took office. "This could be cited as precedent although it's not dispositive," Nagle says.
However, Nagle notes that previous lame-duck Congresses have conducted important, binding business.
For example, the lame-duck Congress that met after the 1980 election — which cost the Democrats their majority in the Senate, but not the House — enacted 129 laws, including the Superfund law governing the cleanup of hazardous wastes.
The notion that the House impeachment vote would have to be renewed in the new Congress is "an interesting argument, whether or not correct," said Vanderbilt University law professor Barry Friedman. "There is some weight to it."
But Friedman finds more this question more fascinating: Who gets to decide?
Ackerman argued that the president could make a motion to quash the impeachment resolution adjudicated by Chief Justice William H. Rehnquist, who would preside over the Senate trial.
Lichtman argues, however, that the issue should be put to the entire Supreme Court before a trial begins, and furthermore, Rehnquist might have to recuse himself from voting precisely because he would preside over a Senate trial.
Rehnquist is a "stickler" about conflict issues, says Lichtman. The chief justice, who was appointed by President Richard Nixon, recused himself from the Nixon tapes case.
A 1993 Supreme Court decision in the case of a criminally convicted federal judge gave the Senate broad powers to fashion its own rules for impeachment. That ruling said the judge's challenge to his Senate trial raised a "political question" that courts were unauthorized to consider.
"The precedent would appear to be against the White House," says Farber of the University of Minnesota.
The Court, Lichtman says, also could opt not to consider the president's motion, or rule that it too presents a "political" question the Court can not answer. In that happens, the Senate must decide what to do. In fact, argues Lichtman, it's up to the Senate to decide just about every question related to this trial.
The only thing the Senate might be constitutionally obligated to do is initiate a trial, Lichtman says. Senate Majority Leader Trent Lott has said a trial in unavoidable.
But then, argues Lichtman, a majority of Senators could adjourn the trial five minutes later and then spend another five minutes on a censure resolution. Or they could vote on censure before adjourning a trial.
"There are no rules, really," Lichtman says. Any ruling made by Rehnquist can be overturned by a simply majority vote. There are procedural "rules" based on historical precedent, but the Senate can basically do whatever a majority will agree to, says Lichtman, as was the case when Andrew Johnson was tried in 1868. The Senate back then, for example, decided not to vote on eight of the 11 articles against Johnson.
The impeachment process is a political one, on that much all participants and scholars can agree, and any move must be considered in terms of political advantage more so than legal advantage.
Some political experts believe a White House attack on a lame-duck Congress' impeachment authority would be a strategic blunder.
"It would be politically unwise for the White House to proceed in that fashion," said Thomas Mann of the Brookings Institution. "With no drumbeat of resignation materializing, the White House would be better advised to show an appreciation for the constitutional process rather than defiance for it."
Political science professor Richard Davis at Brigham Young University agreed, saying, "The likelihood for any legal challenge is slim as long as the White House believes there are not enough votes in the Senate for conviction."
The Constitution requires a two-thirds vote — 67 senators — for conviction. The Republicans hold 55 seats in the 106th Senate while Democrats hold 45 — the same ratio held in the 105th Senate. Many Senators have said publicly that the votes to convict are not there.
Another interesting constitutional question is whether the trial managers selected by the 105th House need to be approved by the 106th House.
Ackerman said that, even if the articles of impeachment passed by the old House were allowed to stand, at the very least, the new House would have to vote on which managers would prosecute the president in the Senate.
A spokeswoman for the House Judiciary Committee said members are reviewing that question; she said she believes they do have to be reconfirmed. This is important because the 13 current managers —: all of whom were members of the Judiciary Committee that voted out the original four articles — are harsh critics of the president's actions. In theory, if the 106th House wanted to reign in the president's prosecution, it could choose managers less committed to conviction. New managers might even drop the matter, in theory. In the 105th House, Republicans enjoyed a majority of 11, but that dips to 5 in the new House.
Lichtman, however, says it would be "extremely unlikely" that the new House would vote to short circuit a trial, assuming a vote on managers ever took place. Theoretically the president could try to get the Supreme Court to order a manager confirmation vote in the House, but the probability of success would be very low.
The current 13 trial managers are: Judiciary Committee Chairman Henry Hyde, R-Ill.; F. James Sensenbrenner, Jr., R-Wis; Bill McCollum, R-Fla; George Gekas, R-Penn.; Charles Canady, R-Flo.; Steve Buyer, R-Ind.; Ed Bryant, R-Tenn.; Steve Chabot, R-Ohio; Bob Barr, R-Ga.; Asa Hutchinson, R-Ark.; Chris Cannon, R-Utah; James Rogan, R-Calif. Lindsey Graham R-SC.
Court TV's Aldina Vazao Kennedy and The Associated Press contributed to this report.
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