This op-ed originally appeared in the Los Angeles Times, January 7, 1999.
Return Impeachment Articles to Sender
by Jack M. Balkin
IT MIGHT SEEM that the impeachment process has moved on to the Senate. But it easily could, and should, wind up back in the House.
Here's how: When the House managers arrive at the Senate to present their articles of impeachment, Vice President Al Gore will be sitting in the presiding officer's chair. Immediately, a senator should rise and offer three objections:
The so-called articles of impeachment have no legal effect because they were not passed by the current House. (This is the"lame duck"objection popularized by my colleague Bruce Ackerman).
The House managers have no authority to present the articles or to prosecute the case because they were appointed by a body that has gone out of existence. A new set of managers must be reappointed by the new House.
The articles are defective because they don't spell out which of the president's statements were perjury and which of his acts obstructed justice. Moreover, the articles haven't been separated into counts like an ordinary indictment. They lack the procedural guarantees that every criminal defendant in the United States receives. If the president shouldn't be above the law, he shouldn't be below it either.
If Gore accepts any or all of these arguments, he is perfectly within his rights as presiding officer to refuse to receive the articles. At that point, a senator will surely ask for a vote overruling his decision. But then the Senate faces a straight up or down vote on the validity of the articles of impeachment.
EVEN IF Gore thinks refusing the articles would be politically dangerous, any senator can raise the same three points once Chief Justice William H. Rehnquist takes over as presiding officer. Eventually the senators will face a vote on these objections. How should the Senate rule on them?
The argument that lame duck impeachments are constitutionally invalid is a stretch. An impeachment is like a grand jury indictment, and indictments survive even after the grand jury is dissolved. As a matter of political fairness, the House probably should have waited until the new House took over in January, because the voters rejected the impeachment agenda of the old House last November. Legally, however, the old House can impeach until it leaves office.
Nevertheless, the House must reappoint its managers if it wants to prosecute the case. The decision to prosecute an impeachment requires the approval of the body that is going to do the prosecuting, which is the newly constituted House. Also, the indictment must spell out the charges in detail and separate them into individual counts. There's precedent for this, too: The defense lawyers in the impeachment of a federal judge, Walter Nixon, a decade ago demanded and received a bill of particulars.
If the vice president or chief justice accepts either of these last two objections, the impeachment process moves back where it properly belongs: the new House of Representatives. That House resulted from a popular election in which Americans told political elites they wanted a return to normal politics, a politics that focused on legislative achievements rather than scandal. They did not arrive at this judgment lightly; the Lewinsky scandal monopolized news coverage for months, and the charges against the president were fully aired by his opponents.
BY FORGING AHEAD after the November election, the 105th Congress acted in defiance of the considered judgment of the American people.
Sending the matter back to the new House asks whether it wants to authorize the previous House's actions and prosecute the case. There is no guarantee that it will do so, especially if the new body better reflects popular will. There are 38 new House members who have to be convinced.
A decision not to appoint House managers or redraft the articles is effectively a decision not to prosecute. There is no shame in this.
Prosecutors often decide that it's not worth wasting public resources on cases if they would be difficult to win or if prosecuting them would be contrary to the public interest. Indeed, if independent counsel Kenneth Starr had acted like an ordinary prosecutor, he might never have continued so long and spent so much money in his quest to catch the president. If the Senate decides properly, the House may have a second chance to do the right thing. Let's hope they get that chance.