The 20th Amendment flat-out forbids it, argues a professor from Yale law school.
By Harvey Berkman
The possible technicality was explained to the House Judiciary Committee on Dec. 8 by one of the witnesses for the president's defense, Bruce Ackerman, a professor of law and political science at Yale University. Simply put, it is this: The fact that there are now lame ducks in the House may keep the president's goose from cooking in the Senate.
Devoting his testimony to describing the "three big mistakes" of the impeachment debate, Prof. Ackerman hit hardest on the first alleged blunder: the assumption that, if the current House votes for impeachment, the new House that gets sworn in on Jan. 3 will need do nothing before the new Senate can try the president.
"Nothing could be further from the truth," Prof. Ackerman said.
The problem the professor cites is the 20th Amendment, passed in 1933. It imposes a limit of only two months for old Congresses to remain in power after a national election. The amendment's purpose, Prof. Ackerman said, was specifically to limit the ability of lame ducks to take meaningful action, action that he said represents "an intolerable violation of democratic principles."
Republicans were ready for the man from Yale: Even as he spoke, GOP aides distributed an Oct. 7 memo from a staff attorney at the Congressional Research Service, an arm of the Library of Congress. It detailed the many impeachments that have crossed over from one Congress to the next; the first occurring early in the nation's history, between Congresses No. 7 and No. 8.
Still, the memo failed to address Prof. Ackerman's full argument. Most of the two-session impeachments that the paper discussed preceded the 20th Amendment, which the memo never mentioned.
And the paper noted that, in all of the previous two-session impeachments, the new House took "particular steps to facilitate [the] continuation" of the impeachment in the Senate. For example, the newly elected House has either reaffirmed the previous House's selection of members to go to the Senate to prosecute the impeached official or it has elected new ones. This indicates that the new House members thought that they needed to take some action before the matter moved to the Senate for trial.
That raises a question: What if they held an impeachment trial in the Senate but no one from the House came to prosecute it? It could happen. The new House will have five fewer Republicans to vote for the necessary manager and team of impeachment prosecutors.
Any procedural challenges to the legitimacy of the impeachment would be handled by the chief justice of the United States, whom the Constitution names to preside over the Senate trial. If a decision went against Mr. Clinton, the president would likely appeal to the U.S. Supreme Court -- which has recently spoken clearly on the question of appellate review of impeachment proceedings.
In 1992, impeached U.S. District Judge Walter L. Nixon argued that the Senate had used unconstitutional procedures in his trial when it used a committee, rather than the full Senate, to hear testimony against him. He lost 9-0, with the court declaring the issue a nonjusticiable political question.
There is no evidence "of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers," Chief Justice William H. Rehnquist wrote for the court in Nixon v. U.S., 506 U.S. 224 (1993).
The ruling rested largely on the Constitution's use of the word "sole" to describe the Senate's "power to try all impeachments." It is not a word used often or lightly in a document that constructed a government of checked and balanced power. When it appears in the context of another branch's authority, the court said, there is not much review for the court to do.
Not much, perhaps, but what about some? What about an act that violates an explicit constitutional provision -- such as the 20th Amendment?
The Justice Department brief opposing Judge Nixon indicated that the question could be answered in the affirmative, hypothesizing that "there could be judicial review of a claim that one of the [Constitution's] express limitations had been transgressed."
The brief was submitted by the then-solicitor general -- a 46-year-old legal wonder who had already served on the federal appellate bench and plainly still had places to go: Kenneth W. Starr.
This article appeared in the December 21 edition of The National Law Journal.