Last month, the American people elected a new Congress. And Flytrap was an issue. Nevertheless, it's the old Congress--including members who were defeated or didn't run this year-- that decides whether to impeach the president. Is this legal? Is it fair?
Lame-duck Congresses go about their business and enact legislation all the time. It may not seem fair, but it's clearly legal. The 20th amendment to the Constitution (which reduced the maximum allowed time between a congressional election and the start of the new Congress from 13 months to two months) explicitly allows it. No one has seriously argued that impeachment is different.
However, if the House impeaches President Clinton next week, there is no chance the Senate will finish--or most likely even start--the trial before the old Congress dies on January 3. Bruce Ackerman, a Yale Law School professor who testified on Tuesday, argues that the Constitution does not allow the old House to impeach and the new Senate to convict.
It is widely accepted that the constitution does not allow ordinary laws to be enacted this way. If the current House approves an ordinary bill, and the Senate hasn't approved it by Jan. 3 when the new Congress takes over, then the bill dies. Ackerman argues that "[l]ike all other bills, a lame duck bill of impeachment loses its constitutional force with the death of the House that passed it." This is the controversial part. As Ackerman admits, there is no direct precedent telling us whether impeaching the president is really "[l]ike all other bills." (President Andrew Johnson was impeached by the 40th Congress and tried by the 40th Senate.)
The rule about ordinary bills, Ackerman argues, is obviously designed to limit the power of a lame duck House. Specifically, it is meant to prevent the following scenario: (1) the old House approves a bill; (2) the new Senate approves it; and (3) the new House would not have passed it but can't repudiate it. So it becomes law, even though one of two houses of Congress is opposed to it. That's not allowed. Why shouldn't the same logic apply to something as important as impeachment of the president?
Not everyone agrees with Ackerman's analysis. The Library of Congress has documented several instances of a lame duck House impeaching a Federal judge and the trial being held by a subsequent Senate. This doesn't necessarily invalidate Ackerman's analysis (these historical examples could just have been mistakes), but precedent is important.
At any rate, it's a difficult question. Who will decide it? Next year's Senate has the responsibility of conducting the president's trial. Therefore the Senate's presiding impeachment officer--the Chief Justice of the Supreme Court, William Rehnquist--will make the final decision. Rehnquist happens to be the author of a book on impeachment.
A final fillip: If the House impeaches Clinton, it must appoint some of its members as "impeachment managers" to present the case in the Senate. Ackerman also notes--and the Library of Congress does not disagree--that these members must be chosen by the new House. So it's possible that the old House could vote for impeachment and the new House could refuse to appoint "impeachment managers". This scenario would permit the new House to effectively derail the impeachment process, albeit in a sneaky way.