by Bruce Ackerman

The problem of lameduck impeachment has taken the country by surprise. Before November, everybody expected the Republicans to gain seats in the off-year election. This mid-term surge by the party out of the White House is one of the near-universal laws of American politics. If the Republicans had run true to form and gained seats, it would have been nit-picking to observe that a House of lameducks was undertaking the task of impeaching a popularly elected President of the United States. If the lameduck 105th House voted to impeach in December, there was every reason to suppose that the more heavily Republican 106th House would quickly reaffirm this judgment in January, and send the matter on its way to the Senate for an early trial.

But the voters have transformed a legal technicality into a matter of high constitutional principle. Five fewer Republicans are returning to Washington, and there are 40 new House members in all. It is no longer obvious that the two articles of impeachment passed by the lameduck 105th House would gain majority support if put up for another vote by the newly elected members of the 106th.

One of the articles -- charging the President with obstruction of justice -- passed in December on a vote of 221 to 212. Since there will be five more Democrats in the new House, this article would probably fail to receive majority support from the 106th House. The fate of the other article -- charging perjury -- is less clear. It passed last time by a vote of 228 to 206, and so the net addition of five Democrats is not enough to deprive the article of its majority. Its fate will depend on how all 40 new Congressman sort out their constitutional responsibilities.

This amendment anticipates that new Congresses will begin meeting as soon as possible after the elections -- the text specifies January 3. As we shall see, Americans believed that the twentieth amendment basically reduced the lameduck problem to vestigial proportions. Perhaps some grave national emergency might require decisive action, but the old Congress would normally fade away as the nation enjoyed a respite from politics between Thanksgiving and New Year's Day.

So far as impeachments are concerned, Congress has proved faithful to this expectation. During the 65 years since the twentieth amendment became part of our higher law, no lameduck House has ever impeached an errant federal judge, much less a sitting president. Such matters have been left to the judgment of Congresses that were not full of members who had been repudiated at the polls or were retiring from office.

Like all other bills, a lameduck bill of impeachment loses its constitutional force with the death of the House that passed it. Before a Senate trial is allowed to proceed, the unprecedented lameduck impeachment by the 105th House must be confirmed by the newly elected representatives of the 106th. If the new House leadership seeks to evade this high constitutional responsibility, its decision should not be allowed to go unchecked. The Constitution expressly names the Chief Justice as the presiding officer over any Presidential impeachment trial in the Senate, and his first order of business should be the consideration of a motion by the President's lawyers to quash the lameduck impeachment as constitutionally invalid.

Much more is at stake than the fate of William Jefferson Clinton. If this lameduck impeachment is allowed to go forward, a terrible precedent will be created for the future. Whenever the opposition party controls the House, a setback on election day will tempt it to begin a lameduck impeachment process against its political opponent in the White House. Moreover, most Presidents are much less popular in the polls than Mr. Clinton. Unless we take the problem of lameduck impeachment far more seriously, we will be inadvertently creating a precedent that will destabilize the Presidency for a very long time to come.

The Constitution contains no specific instructions concerning the expiration of bills passed by one House, and pending in another, at the end of a Congressional session. The answer is left to the lessons of history and the teachings of fundamental principle. These yield an uncontested general rule: for more than two centuries, all pending bills have died with the Congress that considered them. The most elementary principles of democracy require full reconsideration by both Houses every time their membership has been renewed by the voters.

But is there an exception to this general rule for bills of impeachment? Many leading members of the Senate have been speaking as if the answer were obviously Yes. Some have even suggested that the Senate now has a constitutional obligation to begin the impeachment trial immediately upon the Senators' return to Washington in January.

Nothing could be further from the truth. Talk-show chatter dissolves upon serious legal analysis. Most discussions completely fail to consider the relevance of the most important source of law on this matter -- the enactment of the twentieth amendment by the People in 1933. The legislative history, and popular debate, surrounding this amendment represents the most solemn and self-conscious consideration in our history of the democratic dangers posed by lameduck Congresses, and the more particular threats to the Presidency posed by a lameduck House.

This solemn judgment, reached by the American People after a decade-long debate, demands respect as we confront our present interpretive problem. Recall that the text itself is completely silent on the question of expiration, and that all other bills uncontroversially expire at the end of the Congressional session. The interpretive question, then, boils down to this: shall we expand by implication the powers of a constitutionally anomalous body by carving out an exception for impeachments that offends the general rule, based on democratic principles, that consigns all other pending matters to death with the death of the Congress considering them?

There are, as usual, two sides to this question, but the scales are not in equipoise. My argument begins with the original understanding of the twentieth amendment. The Framers repeatedly and consistently represented to the American People that the ratification of the amendment would, in the language of the Committee Report, "abolish the so-called short session of Congress" that had regularly occurred after the elections, and inevitably contained lameduck members. They were especially concerned with the damaging role that lameduck Houses had frequently played in connection with the Presidency.

The Framers of the amendment resolved to correct this blunder once and for all. Indeed, the House Report put this aim at the top of its list of objectives that the amendment sought to achieve: (1) The newly elected Congress will count the electoral votes, and in case a majority has not been received, the newly elected House of Representatives will choose the President, and the Senate (including the newly selected Senators) will choose the Vice President; From our vantage point of view in 1999, it would have been nice if the draftsmen of the twentieth amendment had also turned their attention to the problem posed by efforts by a lameduck House to impeach, as well as elect, Presidents. But the fact is that no lameduck House, prior to the present one, has voted to impeach a President, and so history did not alert the Framers of the amendment to this problem.

A fair reading of the legislative history suggests, however, that the Framers would have taken action to make lameduck impeachment impossible if they had thought it was a serious possibility for the future. Since they believed that they were in effect abolishing lameduck sessions, it was understandable that they supposed that this supreme abuse of lameduck power would never take place.

Nevertheless, the language of the twentieth amendment does not specifically prevent the convocation of a lameduck session, and so the 105th House was within its textual rights to meet after the November elections and vote to impeach the President. I do not question the constitutional power of the 105th House to impeach. I simply urge you to distinguish this question from the one before us today: Granted that the 105th House had the constitutional power to impeach at a lameduck session, does this act expire like all other pending business on the termination date specified by the twentieth amendment: January 3, 1999?

Let us turn next to the opposing side of the argument, and consider the principal precedents invoked to support the claim that bills of impeachment, unlike all other pending bills, do not die with the House that sent them on to the Senate. These are remarkably weak and unpersuasive. There are only three cases of hold-over bills of impeachment in all of this country's 200 year history. None of them involved Presidents, and only one of them has arisen since the enactment of the twentieth amendment.

This single modern case, moreover, failed to resolve the crucial issues raised by the present proceeding. The House that impeached District Judge Alcee Hastings in 1988 was not an assembly of lameducks, but sat in regular session. Since Hastings wanted to delay the Senate trial until the next session, he did not even challenge the constitutionality of a hold-over bill of impeachment. Unsurprisingly, then, the Senate granted Hastings' request, without considering any of the arguments I have raised.

There is no blinking the fact that this is the first lameduck impeachment since the enactment of the twentieth amendment, and that there are no compelling precedents to support its continuing validity in the 106th Congress. The members of the House, the Senate, and the Chief Justice of the United States must squarely confront the fact that it is they, and nobody else, who are constructing a crucial precedent that may haunt Americans for many generations to come.

Imagine, for example, that the political wheel turns, and that a Democratic Congress confronts a Republican President in the year 2001; imagine further that the Democrats in the House suffer a reversal in 2002, but their party still remains in control of the Senate. Can there be any doubt that enterprising members of the lameduck House will be tempted to use the Clinton precedent to unseat the next Republican President before January 3rd 2003?

Thus far, the House leadership has refused to permit the newly elected members the confront their fundamental constitutional responsibility. Instead of allowing the representatives of the "People's House" to cast an up-or-down vote on articles of impeachment, the leadership has only allowed a procedural measure to move to the floor. On the first day of the session, after a brief debate, Henry Hyde gained consent for a procedural measure authorizing him and the other impeachment managers to prosecute the impeachment in the Senate. But this measure supposed the underlying validity of the lameduck bill, and cannot substitute for a formal and public vote by our representatives on the fundamental matter at issue: If 218 Members do indeed continue to support each of the articles of impeachment, what is the harm in demonstrating that this is so? If majority support has dissolved with the departure of the lameduck House, how can it be right to put the country through the agonies of an impeachment trial?

If the Senate proceeds to try President Clinton without express reauthorization from the newly elected House, future generations will look back with bewilderment at a constitutional crisis created by a narrow majority vote of a lameduck House split on party lines. It follows that President Clinton has a high constitutional obligation to instruct his lawyers to challenge the power of the Senate to begin its trial without demanding that the newly elected House vote anew on a bill of impeachment.

But, of course, politics may well intervene at this point. It may well be politically convenient for the President to agree to a quick trial and acquittal in the Senate, and ignore the fact that the Senate does not have the jurisdiction to try him on the basis of a lameduck bill of impeachment. But if President Clinton makes such a deal, he will be imperiling the position of all future presidents, who will predictably face lameduck impeachment under far more adverse conditions. Generally speaking, they will not have 70 percent approval ratings when the House managers insist on moving forward with a lameduck bill. Nevertheless, future Presidents should not be subjected to the threat of removal unless the newly elected House somberly and formally affirms the existence of "High Crimes and Misdemeanors."

Make no mistake. We are blundering our way to the creation of a damaging precedent whose full destructive force will only make itself clear over the next few decades.