The Lame-Duck Argument Jude Wanniski January 4, 1999

Memo: To Anthony Lewis, NYTimes
From: Jude Wanniski
Re: Impeachment by the 105th Congress

Your column today, "A Terrible Precedent" is Anthony Lewis at his best. Instead of getting down in the muck and mire as you did in your column a week ago, blasting Henry Hyde for high crimes and partisanship and smearing Trent Lott with vague charges of racism and bigotry, today you present sharp and clear scholarly arguments at the highest plane. By arguing the "constitutional illegitimacy" of having one Congress, the lame-duck 105th, impeach the President, for adjudication by the 106th, you now begin to re-establish your credentials as a serious student of the law. It is an argument well worth making, although my guess is that the President and his lawyers are not terribly interested in forcing Chairman Hyde to scrap its work and begin anew — solely on the slight possibility that a few more Democratic House votes in the 106th Congress would automatically go against impeachment. You note the White House is wary of making a challenge based on your reading of the 20th amendment, which passed in 1933 and required the President to be inaugurated in January after his election, not wait until March as had been the case from the republic's earliest days.

Prior to the amendment, the lame-duck Congress and the President would often legislate serious matters in the 13 weeks (your column says "months") between the November elections and new seating in March. The infamous Smoot-Hawley Tariff Act passed the House in March of 1929, only weeks after the new Congress convened. It had been drafted by the previous lame-duck Congress, which met to take it up immediately following Herbert Hoover's election in 1928. The new Congress rubber-stamped it, on the theory that the Senate would kill the beast, which it did not. The two-thirds opposition to the tariff in the Senate began to swing around in September of 1929 and coalesced into enough support for passage in the last week of October. This caused the Crash on Wall Street, as the Dow Jones Industrial Average stabilized at 230 after hitting 380 just prior to Labor Day — a 40% decline in equity values. As I explain in Chapter Six of my 1978 book, The Way the World Works, it was the Senate vote that triggered the Crash, not an inexplicable bursting of a speculative bubble, which has been the assumption of Keynesian and monetarist economists ever since. It is probably this "outrage" that gave momentum to the 20th Amendment.

When I wrote you last week in private correspondence, to take issue with your casting of Henry Hyde as a partisan bent on destroying the President in the lame-duck Congress, I made the point that Hyde had pledged to take up the Starr Report in the 105th Congress at a time when there was universal belief among political experts that the Republicans would gain seats in the elections, both in the Senate and in the House. I simply stated the fact that Hyde was true to his word, wishing to expedite the impeachment process in order to dispose of it before the new year. In your letter of response to me, you insisted his motive in proceeding was crass partisanship of the worst kind. Of course I totally disagree with you and suggest that you were hot under the collar when you made that assertion. Your own newspaper went into great detail to report, after the impeachment, that Hyde called his Republican committee members from Midway Airport, on a conference call, the day following the Republican losses in the November elections.

It was the darkest moment for the Republicans as they, and the White House, interpreted the GOP losses as a vote of confidence in the President that would end any possibility of impeachment. You must recall, Tony, that when Hyde told his committee that it had an obligation to proceed, it was universally assumed that there was no possibility the Republicans in the House would vote almost uniformly for impeachment. At the time, I was in the President's corner and also assumed that Rep. Peter King, the New York Republican, was correct in saying there were another 20 like him who would vote against articles of impeachment based on the President's private acts. Common sense has to tell you that Hyde's motives were as he said they were at the time, to bring the process to a speedy conclusion. It was only after the hearings, which altered my thinking as it did that of 15 of the 20 so-called moderate Republicans, that the lame-duck argument surfaced. Once it became clear the President was going to be impeached, having failed to defend himself on the facts of the case and thinking he could skate through by impugning the motives of Ken Starr, his defenders grasped at the lame-duck straw.

If the President's lawyers now were to challenge the impeachment, my guess is that he would fare worse in a second set of hearings. In December, as the nation was up to its ears in holiday planning, there was scant attention paid to the televised discussions of the impeachment hearings. It is only after the electorate has had a chance to put away the Christmas ornaments that we see it is taking up its civic responsibility to understand what is going on in Washington. Sen. Arlen Specter [R-PA] is right, I think, in his estimate that the Senate trial will be the most important in the history of the Anglo-Saxon universe. I can only compare it to the trial of Socrates on a scale of historic importance. In that regard, your enormous experience and training in the law should continue on the path you have selected today, putting the rule of law above any partisan considerations, becoming the reporter of record of the newspaper of record, the Times, for the most significant trial in our history.