Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky.
THE CASE AGAINST LAMEDUCK IMPEACHMENT is a small book both physically -- measuring only six and 7/8ths inches down and four and 1/4 inches across -- and in length, just 77 pages long. Bruce Ackerman, the Stirling Professor of Law and Political Science at Yale, wrote the book in the last two weeks of 1998. He argues that the two articles of impeachment the House of Representatives voted against President Bill Clinton on December 19, 1998, should have expired fifteen days later on January 3, 1999, when the life of the 105th Congress ended.
Ackerman was trying to persuade President Clinton to instruct his attorneys to challenge the validity of the articles of impeachment, and to convince Senators that they should proceed to trial on the articles unless they were readopted by the new House elected in November, 1998, and convening on January 3rd. He was, of course, also trying to influence the public as to the correctness of this position. Ackerman's argument is framed in terms of constitutional interpretation. But, as he readily acknowledges, it is set in the political context that both articles were approved by close votes and the new House of Representatives would have more Democrats than its predecessor had.
As we know, he did not succeed in this effort. The Senate accepted the articles and tried the president on them. Neither Clinton's defense team nor the Senate Democrats urged that carrying over the articles of impeachment from one Congress to the next was unconstitutional, so there was no serious discussion about the issue. Nonetheless, Ackerman makes some interesting constitutional arguments against lameduck impeachment that are worth describing here. He also believes that the resolution of the lameduck impeachment issue has major consequences for the future of our national political structure; this belief warrants a brief analysis.
Ackerman's most powerful argument is that lameduck impeachment is contrary to the intentions of the framers. The relevant framers were the members of Congress who drafted the 20th Amendment in 1932. This amendment advanced the demise of an existing Congress after an election to January 3rd instead of the traditional March 4th date. Because Article I of the 1787 Constitution called for Congress to convene annually in December, that body began a lameduck second session in even numbered years after the November election. The 20th amendment eliminated the lameduck session by having Congress begin its sessions in January. Quoting chief sponsor Senator George Norris and others, Ackerman convincingly shows that a major rationale of the amendment was to abolish the lameduck session because it was undemocratic to have a Congress whose views may well have been repudiated by the voters still making laws and adopting budgets.
Ackerman concedes that the 20th amendment does not in so many words preclude an impeachment voted by the House in a dying Congress from being considered by the Senate of a new Congress. But such an event, in addition to imposing the undemocratic burden of a repudiated past on a new Senate, is not consonant with the ancient and otherwise general understanding that all pending bills and resolutions expire with the life of a Congress. If further consideration is warranted, they must be introduced and considered anew by the next Congress. In a bit of an inferential leap, Ackerman concludes that the history of the 20th amendment's adoption "establishes beyond all reasonable doubt that lameduck bills of impeachment are not entitled to some specially privileged status in our Constitutional law" (p. 41).
A broader look at history, however, is not so supportive of Ackerman's argument. Lameduck impeachments are specifically allowed by Senate Rules, a practice that Jefferson took from the rules of the British Parliament when he wrote the first Manual of Senate Procedures in 1800 while serving as Vice President of the U.S., the Senate's presiding officer. Ackerman believes that Jefferson did not really mean to do this. He was rewriting the rules to give them a republican flavor. The impeachment rule was the last of the Parliament's rules and thus the last one Jefferson took up. By this time it was late in the year and Jefferson had become distracted by his presidential campaign. Had he been more alert, he would not have put this undemocratic practice into the Manual. Indeed, when he wrote the impeachment carryover rule, Jefferson did not even change the British wording, using the word Parliament instead of Congress in the text. Ackerman's speculation here is plausible but not compelling. And even if true, how important is it in light of 200 years of acceptance of lameduck impeachments?
Three lameduck impeachments have in fact taken place, all involving federal district judges. Two occurred before passage of the 20th amendment, in 1803 and 1933. The third involved the House's impeachment of Judge Alcee Hastings of Florida (now, ironically, a member of the House) by the 100th Congress in 1988 and his Senate trial (and removal) in the 101st Congress in 1989. Ackerman responds by noting that the lameduck issue was never raised in the 1933 case and that both sides consented to carrying Hastings's trial over. Thus, Ackerman argues, neither is a precedent in the sense that the Senate specifically ratified the practice.
The 1803 impeachment presents more difficulty. Like the impeachment of Clinton, it had a partisan flavor (Jeffersonians trying to remove a Federalist judge), so, according to Ackerman, it "is just the sort of precedent we want to avoid inflicting on our posterity" (p. 60). While most of us would deplore partisan impeachments, THE CASE AGAINST LAMEDUCK IMPEACHMENT is arguing at bottom that there is no real historical support for lameduck impeachments regardless of their motivation. The 1803 case, however, clearly shows that historical support exists. Ackerman rejects a very real-- and analogous--precedent solely because it points to an outcome that he wants to avoid. Bad logic.
Should we even care about the case against lameduck impeachment? After all, when its relevance was most crucial, the argument was largely ignored by the president, the Senate and the public. But Ackerman sees big trouble ahead. By allowing impeachment to be carried from one Congress to the next "a terrible new precedent will be created that will threaten the Republic for generations to come" (p. 67). "Make no mistake," Ackerman warns (p. 67), a future lameduck House will strike out at a president who may not be as popular as Clinton is and succeed in pushing him out of office. The stability of the presidency is at stake; we are in danger of sliding into a parliamentary system and, even worse, one where an unrepresentative parliament initiates the vote of no confidence.
I am not convinced or even particularly worried. If the past 200 years are any guide, it will be a very long time before an article of impeachment is voted against a future president, and an even longer time before this is done by a lameduck House of Representatives. And if it does occur in some distant future, it may be because a rapid impeachment of an out-of-control president is quite necessary. Only a catastrophic change in the fundamental nature of American politics will produce Congresses willing to use the impeachment process willy-nilly to drive presidents from office. If such a sea change does occur, a differing interpretation of the 20th Amendment is not likely to save the republic.