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Case against Clinton should 'die' with Congress, law professor says Democrats say new House would have to start again; GOP sharply disagrees; THE IMPEACHMENT HEARINGS


WASHINGTON -- A potential new complication -- a constitutional issue that may or may not be settled -- arose yesterday in the debate over whether the House will vote to impeach President Clinton.

The question: If the lame-duck House approves one or more charges against the president next week shortly before its term ends, will those charges simply become a dead letter, forcing the newly elected House to start all over again in January?

A Yale law professor, Bruce A. Ackerman, dropped the constitutional question into the proceedings of the House Judiciary Committee, arguing bluntly that once the current House "dies on Jan. 3, all its unfinished business dies with it." That, he said, would include an impeachment resolution.

He argued Clinton could use this point to try to block a Senate trial unless the new House casts a fresh vote on impeachment. The point would have to be decided by Chief Justice William H. Rehnquist, who would preside at a Senate trial of Clinton.

The issue arises, it appears, because of the long-standing tradition -- nowhere explicitly spelled out in the Constitution, but implied there -- that an end to one Congress wipes out pending legislative business, necessitating a new start when the next Congress assembles.

Diminished majority

A new start in January 1999 would be an even more chancy proposition for impeachment than action this month, since the Republicans will then have only a six-seat majority in the House ++ compared with their 11-vote margin today. The loss of only a handful from their ranks would turn the outcome to favor Clinton.

While Ackerman's point that an impeachment resolution would die as of Jan. 3 was disputed, he had a second argument that is not challenged, even by Republicans. That, too, might pose a complication for impeaching Clinton.

Even Republicans conceded that the new House that takes office Jan. 3 would have to cast at least one vote -- to choose new House "managers," or prosecutors, to plead the impeachment case at a Senate trial. It might be possible, GOP sources said, for impeachment opponents to frustrate a Senate trial by indefinitely blocking the naming of the House prosecutors.

Ackerman's argument that an impeachment resolution could not remain alive into the new Congress was swiftly embraced yesterday by Democrats on the committee. Republicans, however, hurried to denounce it. GOP lawmakers produced a quick contrary argument -- based on a study done in October by the Congressional Research Service -- that any House impeachment resolution adopted this month will stay alive without being put to a new vote in January.

The Hastings precedent

Three times before, the GOP lawmakers said, an impeachment resolution adopted by a House on its way out of office was held over and formed the charges for a Senate trial in a new Congress. The latest episode: the House vote in August 1989 to impeach U.S. Judge Alcee L. Hastings, followed by a layover of the resolution for trial in the Senate in a new Congress in 1989.

The Hastings incident was the only one involving a carry-over impeachment resolution to occur since the 20th Amendment was added to the Constitution, advancing the starting date from March to January, to make sure the newly elected members take over as soon as possible.

Ackerman relied heavily on that amendment in arguing that a "lame-duck House" should not be allowed to impeach an official, then have the trial delayed until a new Congress comes in.

The House majority that exists now, he noted, will be reduced as a result of the November election, and it would be "an abuse" for it to take away from the new House "the most solemn obligation it could have, to act upon an impeachment resolution." It was that kind of "abuse," Ackerman said, that led to the adoption of the 20th Amendment.

Ackerman dismissed the Hastings precedent, saying the issue of a carry-over resolution was examined by the Senate in only a "perfunctory" way, without resolving "any of the key issues raised by the present case."

The voice of experience

But the professor was strongly disputed on that point, and on his whole argument, by a source who was personally involved in the Hastings impeachment -- one of the precedents relied upon by Republicans and the CRS research team.

"He is flat-out wrong," said Terence J. Anderson, a University of Miami law professor, who defended Hastings in the Senate trial that led to the judge's conviction.

While Anderson said he agreed with Ackerman that the Constitution should require a fresh vote in the House, rather than have a previously passed impeachment resolution carry over, he said the Constitution does not require that. "The precedents are all against him," Anderson said.

Hastings (who later was elected to the House, and remains a member) was impeached by the House in August 1988, but the resolution was carried over into a new Congress for Senate trial in 1989.

The Senate, Anderson recalled yesterday, was troubled about whether the resolution would remain alive, so it asked Anderson and House prosecutors to study the issue. After "thorough" research, Hastings' lawyer remembered, everyone -- he, the House and the Senate Rules Committee -- agreed that the resolution would remain intact without a new House vote.

Pub Date: 12/09/98

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