Law Professor Challenges Validity of Panel’s Vote

A lone law professor roiled the House Judiciary Committee on Tuesday by suggesting a novel way for President Clinton and his supporters to forestall impeachment.

Bruce Ackerman of Yale University, testifying on Clinton’s behalf, argued that any articles of impeachment approved by the House in this post-election, lame-duck session might not be legally valid in the Senate when the new Congress convenes in January.

Ackerman’s theory challenges a view widely shared by House and Senate officials of both parties that an article of impeachment--unlike regular legislation--would still be in force in the new Congress and that the Senate could proceed with a trial.

Since the November elections, the GOP’s impeachment strategy has hinged on that view, given that the Republican majority in the House will narrow in the new Congress.

Republicans on the Judiciary panel seemed ready for Ackerman’s argument, with Rep. Asa Hutchison (R-Ark.) immediately producing a report from the nonpartisan Congressional Research Service supporting the legitimacy of impeachment articles passed by a lame-duck House.

Still, Ackerman’s interpretation suggested a potential new legal avenue for those who would like to stop the impeachment drive.

For its part, the White House was noncommital about embracing Ackerman’s theory but pleased to hear about it. “Obviously, Professor Ackerman raised an interesting constitutional issue that deserves further study,” spokesman Joe Lockhart said.

Ackerman identified two opportunities that Clinton allies would have in the next Congress to throw a procedural wrench into the works, assuming the House approved one or more impeachment counts. The president’s defenders could challenge the validity of the act by the lame-duck House or block appointment of a new team of House managers to prosecute any impeachment 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 trial in the Senate in the upcoming year,” Ackerman said. “Nothing could be further from the truth.”

Other congressional experts challenged his view, saying that the procedural maneuvers he outlined would be unlikely to succeed.

“Clinton’s defenders are resorting to more and more esoteric legalisms,” said Ross K. Baker, a Rutgers University political scientist.

The congressional procedure manual makes clear that “impeachment is a continuing judgment that carries over to the next Congress,” said Michael J. Gerhardt, law professor at the College of William and Mary and an expert on impeachment process. “It is an exception to the normal rule.”

The report produced by Hutchison identified three cases--all involving federal judges--in which the House voted impeachment articles in one Congress and the Senate trials occurred in the next.

But Ackerman said those examples were not relevant because the House actions did not tale place during a lame-duck session.

Ackerman maintained that--just as legislation dies if it has not been passed by both chambers at the time of adjournment--articles of impeachment should be considered dead at the end of a Congress if they have not gone to trial. On that basis, he contended, a member of the next Congress could make a motion to quash any article of impeachment approved by the current House. According to Ackerman, the question would be resolved by Supreme Court Chief Justice William H. Rehnquist, who would preside over a Senate impeachment trial.

Ackerman also noted that, when the new House convenes, it will have to reauthorize the appointment of a team of managers to prosecute the case in the Senate. If the resolution does not pass, the case would die for want of a prosecution team. The GOP’s House majority shrinks from 21 seats to 12 seats in the new Congress--meaning that a swing of only six Republican votes could defeat the resolution.

Democrats doubt that they could prevail in blocking a new prosecution team because such procedural votes typically fall along strict party lines.

“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 [impeachment] process now,” Ackerman said. “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 if it becomes evident that its slender pro-impeachment majority has vanished over the Christmas recess.”

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Times staff writers David Savage and Elizabeth Shogren contributed to this story.