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Transcript provided by FDCH

 TIME on politics Congressional Quarterly CNN/AllPolitics CNN/AllPolitics - Storypage, with TIME and Congressional Quarterly

Transcript: Statement by Professor Bruce Ackerman

House Judiciary Committee hearing, December 8, 1998

HYDE: And now, by process of elimination, we're to you. Professor Ackerman.


ACKERMAN: Good morning, Mr. Chairman and the distinguished members of this committee. My name is Bruce Ackerman. And I am Sterling Professor of Law and Political Science at Yale.

I request the chair's permission to revise and extend these remarks.

HYDE: Do, indeed.


ACKERMAN: Since you have already heard so much on the subject of constitutional standards, I thought I would concentrate on two big mistakes that have characterized the discussion up to now. The first big mistake centers on the power of this committee and the president House of Representatives to send a case to trial in the Senate.

People seem to be assuming that once the present committee and the full House vote for a bill of impeachment, the stage will be set for a trial in the Senate in that coming year. Nothing could be further from the truth.

As a constitutional matter, the House of Representatives is not a continuing body.

When the 105th House dies on January 3rd, all its unfinished business dies with it. To begin with the most obvious example, a bill passed by the 105th House that is still pending in the 105th Senate on January 3rd cannot be enacted into law unless it once again is approved by the 106th House of Representatives.

This is as it should be. Otherwise, lame-duck congresses would have a field day in situations like the present, where the old House majority has a setback in the polls.

Recognizing that its political powers is on the wane, the dominant party will predictably use its lame-duck months to pass lots of controversial legislation on to the Senate in defiance of the judgment made by the voters.

This abuse was very common during the first 150 years of this republic. Until the 20th Amendment was passed in 1933, a newly elected Congress ordinarily waited 13 months before it began its first meeting in Washington, D.C.

In the meantime, lame ducks did the nation's business for a full session, often in ways that ran against the grain of the last election.

This is -- this might have been an acceptable price to pay in the 18th century, when roads were terrible and it took time for farmer (ph) representatives to arrange their business affairs.

But over the passage of centuries, the operation of lame-duck congresses proved to be an intolerable violation of democratic principles and they were basically abolished by the 20th Amendment to the Constitution of the United States in 1933.

This amendment aims to have the new Congress begin meeting as soon as possible after the elections. The text itself specifies January 3rd.

In enacting this amendment into our fundamental law, Americans believed they were reducing the lame-duck problem to vestigial proportions.

Perhaps some grave national emergency might require decisive action, but the old Congress was expected simply to fade away as the nation enjoyed a respite from politics between Thanksgiving and New Year's Day.

Generally speaking, lame-duck congresses have proved faithful to this expectation. For example, during the 65 years since the 20th Amendment became part of our higher law, no lame-duck House has ever impeached an errant federal judge, much less a sitting president of the United States.

Such matters have been rightfully left to the congresses that were not full of members who had been repudiated at the polls and who were retiring from office. These proceedings then are absolutely unprecedented in the post-lame-duck era.

Despite this fact, I don't question the raw constitutional power of the current lame-duck House to vote on a bill of impeachment, but I do respectfully submit that the Constitution treats a lame-duck bill of impeachment in precisely the same way it treats any other House bill that remains pending in the Senate on January 3rd.

Like all other bills, a lame-duck bill of impeachment loses its constitutional force with the death of the House that passed it. This point was rightly ignored before the election since everybody expected the new Congress to be more Republican than its predecessor.

On this assumption, it was perfectly plausible for this distinguished committee to proceed in earnest. If the 105th House voted to impeach, there was every reason to suppose that the 106th House would quickly reaffirm its judgment and send the matter on its way to the Senate. So it was perfectly reasonable.

But now that the voters have spoken, the constitutional status of lame-duck impeachments deserves far more attention than it has thus far been given.

Worse yet, we can't rely much on the past for guidance. The closest precedence -- precedent comes from the 1988 impeachment of federal district judge Alcee Hastings.

The 100th House had impeached Hastings, but both sides wanted to delay the Senate trial to the 101st session and the Senate Rules Committee granted their request.

The committee's perfunctory six-page report, however, does not resolve any of the key issues raised by the present case. Hastings was a judge, not a president. And he was impeached during a normal session of Congress, not by a Congress of lame ducks.

As a consequence, the Senate report does not even pause to consider the implications of the fact that the people themselves have decisively sought to limit the capacity of lame-duck congresses by solemnly enacting the 20th Amendment.

If we take this amendment seriously, it means that a lame-duck House should not be allowed to relieve its freshly elected successor of the most solemn obligation it could have to pass upon an impeachment resolution.

Moreover, if the next House of Representatives seeks to duck the -- this responsibility, the Senate will not be free to dispense with the problem of lame-duck impeachment by a simple reference to the 1988 decision in Judge Hastings' case.

Instead, the constitutionality of a lame-duck impeachment will be the first question confronting Chief Justice Rehnquist, the designated presiding officer at the Senate trial.

Following the precedent established by Chief Justice Chase (ph) before and during the trial of Andrew Johnson, the chief justice will rightly assert his authority to rule on all procedural issues, and the first of these should undoubtedly be a motion by the president's lawyers to quash the lame-duck impeachment as constitutionally invalid unless reaffirmed by the 106th House.

Now, Chief Justice Rehnquist is, in fact, a scholar of the impeachment process, having written an entire book on this subject. I'm sure that he'll be fully aware of the historical importance of his conduct in this proceeding and will quickly grasp the obvious dangers of lame-duck impeachment.

Moreover, there are many strands in the chief justice's jurisprudence which will lead him to give great weight to the idea that it is only a truly democratic House, and not a collection of lame ducks, that has the constitutional authority to proceed against a man who has been fairly elected to the presidency by the people of the United States.

Without any hint of partisanship, he would be well within his rights to quash the lame-duck impeachment and remand the matter back to the new House of Representatives.

Since the status of lame-duck impeachment has never been briefed and argued in the modern era, inaugurated by the 20th Amendment, it's impossible to make a firm guess as to the way the chief justice will rule on this matter.

Only one thing is clear: it would be far better for the country and the Constitution if the chief justice is never put to this test.

As Alexander Bickle (ph), my great predecessor in the Sterling chair at Yale, frequently reminded us: "The health of our constitutional system is not measured by the number of hard cases that have been resolved by clear rulings. It is measured instead by the number of statesmen in our history who, seeing hard cases on the horizon, act in sensible ways so as to avoid ever precipitating a constitutional crisis." And that's what we're going into.

If this committee in the present House choose to go forward and vote in favor of a bill of impeachment, I respectfully urge the new speaker of the 106th Congress to do the right thing and remit the matter, once again, for consideration by the new House.

Suppose, however, he doesn't do so. Suppose further that if pressed, the chief justice upholds the continuing validity of the lame-duck impeachment despite the expiration of the 105th Congress. Even then, the new House of Representatives will not be able to escape the need to consider whether a majority of the members newly elected continue to favor the impeachment of the president.

To see why, consider that the House must select a group of members called impeachment managers to present its case against the president at the Senate trial. Without the energetic prosecution of the case by the managers, the Senate trial -- I'm sorry; I'll end up here -- the Senate trial cannot go forward. No managers: no trial.

But only the new House can appoint managers. This was done in Judge Hastings' case, and it certainly should be required in the case of a sitting president facing a lame-duck impeachment.

Thus, even if the new House leadership chooses to rely on a lame- duck impeachment and refuses to allow another vote on a fresh bill before sending the matter to the Senate, there is no way it can avoid the need to test the majority sentiment of the new House.

By voting against a slate of managers, a majority of the new House will be in a position to stop the impeachment process dead in its tracks.

It is a big mistake, then...

SENSENBRENNER: Professor Ackerman, do you think you could wrap up?

ACKERMAN: This is the last paragraph here.

It is a big mistake, then, for the distinguished members of this committee and this House to suppose that they are the final judges of this bill of impeachment. To be sure, the recommendation of this committee and the vote of the entire House deserve serious consideration by the members taking office next month, but so do the judgments of the voters as expressed at the elections in November.

I respectfully urge you to consider this point as you determine your present course. To put my point in operational terms, if you don't believe that a bill of impeachment or the election of impeachment managers will gain the majority support of the next House, the wise thing to do is to stop the process now.

While it may be embarrassing to reverse gears after so much momentum has been generated in favor of a bill of impeachment, the leadership of the next House will confront a much more embarrassing situation...

SENSENBRENNER: Professor Ackerman, I do think you are abusing the committee's time, because you have gone much further than...

ACKERMAN: ... if it becomes evident that a slender pro- impeachment majority had vanished over the (OFF-MIKE)...

SENSENBRENNER: Professor Ackerman, could you please wrap it up? The red light's been on...

ACKERMAN: Thank you very much.

Investigating the President


Tuesday, December 8, 1998

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