AHC: The U.S. Vice President casts tie-breaker vote in their own impeachment trial

Sabot Cat

Banned
From the U.S. Constitution

Article II, Section 4. "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Article I, Section 3. "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. [...] The Senate shall have the sole power to try all impeachments."

So let's see if I'm understanding this correctly: if the Vice President is being tried for impeachable offenses by the Senate, and the Senate is split on whether or not to remove the Vice President from office... the Vice President can vote for themselves?

Well, if I'm reading this right: your alternate history challenge is for the VPOTUS to cast a tie-breaking vote in favor of themselves at their own impeachment trial.
 
It seems strange to me that this could happen (it's an obvious conflict of interest so I would have expected there would be formal rules against it), but the best way for this to happen would, I imagine, involve Agnew.
 

Sabot Cat

Banned
Wait, I think I messed up reading this. It takes a two-thirds majority to convict in an impeachment trial, and the Vice President only has a tie-breaker vote with an "equal" split. Or is it only in a Presidential trial that a two-thirds majority is required?

"When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."

So does that colon imply that clause only applies to presidential impeachment trials with the Chief Justice presiding? Precedent suggests otherwise, so eh, I don't think this is actually a plausible scenario. ^^"
 
Impossible, if not, irrelevant. The only way the Vice-President (as ex-officio President of the Senate) would vote would be if the Senate were deadlocked (50-50, 26-26, any number of equal votes). The Senate needs to have a two-thirds majority to remove anyone (in modern context that's 67 for and 33 against, at a minimum), after the House Impeaches them (which only requires a simple majority).

If the Senate voted 50-50, then the Vice-President is off scot-free. He doesn't need to do anything to escape removal from office, and because Removal explicitly requires a two-thirds majority, I don't think the Vice-President would have anything to do in this situation.
 

Sabot Cat

Banned
Impossible, if not, irrelevant. The only way the Vice-President (as ex-officio President of the Senate) would vote would be if the Senate were deadlocked (50-50, 26-26, any number of equal votes). The Senate needs to have a two-thirds majority to remove anyone (in modern context that's 67 for and 33 against, at a minimum), after the House Impeaches them (which only requires a simple majority).

If the Senate voted 50-50, then the Vice-President is off scot-free. He doesn't need to do anything to escape removal from office, and because Removal explicitly requires a two-thirds majority, I don't think the Vice-President would have anything to do in this situation.

Yeah, sorry, I just noticed that. Darn, no wacky constitutional hijinks for me! :p

Although it's still amusing to imagine the Vice President presiding at his own trial: "With 67-33 concurring, I hereby remove myself from office..." :D
 
Well, that's what it says in the constitution (essentially). (From my understanding.) (...maybe... >>')

Correct, Article I, Section 3 says, "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

Right under that it then says, "The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States."
 

Sabot Cat

Banned
Correct, Article I, Section 3 says, "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

Right under that it then says, "The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States."

Right, but theyould could/would/should be present at their own trial, right? They're not absent if they're right there.
 
Right, but theyould could/would/should be present at their own trial, right? They're not absent if they're right there.

"Absence of the Vice President" in the sense of "absence of the vice president acting in capacity as president of the Senate," I would presume.
 

Sabot Cat

Banned
"Absence of the Vice President" in the sense of "absence of the vice president acting in capacity as president of the Senate," I would presume.

Hm, I guess although the Vice President still could preside over their own trial, constitutionally, it's another matter as to whether they would.
 
Hm, I guess although the Vice President still could preside over their own trial, constitutionally, it's another matter as to whether they would.

Per the Constitution, yes. The Constitution also allows each legislative house to make its own rules, and the Senate says the chief justice of the Supreme Court shall be presiding officer over the Senate trial of an impeached vice president.
 

Sabot Cat

Banned
Per the Constitution, yes. The Constitution also allows each legislative house to make its own rules, and the Senate says the chief justice of the Supreme Court shall be presiding officer over the Senate trial of an impeached vice president.

That seems unconstitutional absent an amendment.
 
What seems to be the previaling rule is expressed by John D. Feerick, *The Twenty Fifth Amendment: Its Complete History and Applications*, p. 30:

"While the Constitution provided that the Chief Justice would preside at any impeachment trial of the President, no presiding officer was specified for a trial of the Vice President. Presumably, the President pro tempore of the Senate would preside, since it would be incongruous for an impeached Vice President to preside over his own trial, and since the Constitution provides for the President pro tempore to serve as President of the Senate in the absence of the Vice President." http://books.google.com/books?vid=ISBN0823213730&id=xf2QOEm9wHIC&pg=RA1-PA30

At least one person has expressed a dissenting view: Michael Stokes Paulsen of the University of Minnesota Law School in *Constitutional Stupidities, Constitutional Tragedies,* (edited by William N. Eskridge and Sanford Levinson), pp. 75-6:

"Under Article I, Section 3, Clause 4 of the Constitution, the vice president of the United States is 'president of the Senate.' Clause 6 of the same section specifies that the Senate 'shall have the sole power to try all Impeachments.' Thus, the vice president of the United States is the presiding officer at his own impeachment trial. Q.E.D.

"There is no way around this one. Nowhere does the Constitution say that the vice president is stripped of his power as presiding officer of the Senate just because the business at hand is his own impeachment trial. Article I, Section 3, Clause 5 specifies that the Senate's chosen 'President pro tempore' serves "in the *Absence* of the Vice President or when he shall exercise the office of President of the United States' (emphasis mine). The vice president is not 'absent' when he is before the Senate for his own impeachment trial, and he certainly is not exercising the office of president of the United States.

"The power of each house of Congress to make its own rules of proceedings pursuant to Article I, Section 5, Clause 2, cannot be used to strip the vice president of his specific constitutional prerogative--one of the few he has--as president of the Senate, or to accomplish the same thing by deeming the vice president 'absent' if he is impeached. Unlike the House, which has unrestricted power to choose its speaker and other officers (and thus can strip the speaker of his powers if they like), the Senate is stuck with the vice president. Its rules-of-proceedings power is bounded by the fact the vice president of the United States must remain the presiding officer of the Senate..."

Paulsen argues that under any different interpretation, the Senate could strip the vice president of power to preside in a wide range of other cases, and in fact could make the title of "President of the Senate" virtually meaningless. Paulsen concludes that the President of the Senate Clause forbids any action by the Senate depriving the vice president of the power to preside over the Senate--"under *any* circumstances." (Paulsen's emphasis.) Indeed, the omission of any exception for the vice president's own impeachment trial

"can scarcely have been accidental, for the Impeachment clause specifically provides that the chief justice, not the vice president, presides when the president of the United States is impeached. Applying the principle of *expressio unius est exclusio alterius* (the inclusion of one thing implies the exclusion of all others), it is clear that if the Framers had meant to disqualify the vice president in the case of his own impeachment, they would have said so.

"But they did not. Now *that* is stupid."

Paulsen entitles his chapter "Someone Should Have Told Spiro Agnew."
http://books.google.com/books?vid=ISBN0814751326&id=QRTzWM9VVWMC&pg=RA1-PA75

For one reviewer's comment, see http://www.h-net.org/reviews/showrev.cgi?path=6225922884135

"Michael Stokes Paulsen (pp. 75-76) identifies the sole example of 'sheer stupidity': If the Vice President is impeached, he presides over his own trial, according to a plain reading of the Constitution. This stupid result is easily explicable (though Paulsen does not do so) by noting that the Convention devised the Vice Presidency at the last minute, and thus failed to integrate the office fully into the constitutional system."

The review also notes that "Philip Bobbitt dismisses the stupidities symposium as a 'parlor game' (pp. 18-21) and cogently indicts the whole enterprise. (Carter's essay seconds Bobbitt's position, though more mildly.) Most constitutional historians will be drawn to his essay, for Bobbitt persuasively insists that such inquiries take place in a self-imposed vacuum, detached from the history that gave rise to the Constitution and that shaped its development as a system of government."

A few others have made the same argument as Paulsen--but only incidentally, in the course of discussing other things. For example, Stephen L. Carter, "The Political Aspects of Judicial Power: Some Notes on the Presidential Immunity Decision," 131 U.Pa. L. Rev. 1341, 1357 & n.72 (1983): After stating in the main body of his article, "Despite a few glaring errors, 72 the document reflects an obsessive concern for the minutiae of government operation" he adds in footnote 72 "A good example concerns the role of the Vice President. The Vice President serves as President of the Senate. U.S. CONST. art. I, § 3. When the President of the United States is tried in the Senate following impeachment by the House of Representatives, the Chief Justice of the United States presides. Id. That is the only provision in the Constitution requiring the Vice President to turn over the gavel to another individual. Yet the Vice President himself is also impeachable, and if impeached by the House, he would be tried in the Senate. It appears, therefore, that the Vice President could preside at his own impeachment trial, should he choose to do so."

For a critique of Paulsen, see Joel K. Goldstein, "Can The Vice President Preside at His Own Impeachment Trial? A Critique of Bare Textualism," 44 Saint Louis University Law Journal 849 (2000). A summary of Goldstein's article:

"Surely most of us would agree that it would be tres stupide to let Spiro Agnew, or any Vice President, conduct his own trial. Indeed, we would probably find that assessment not sufficiently severe. For the nation to face the trauma of an impeachment trial of a bribe-accepting Vice President as a prelude to a similar proceeding concerning a justice-obstructing President would be bad enough. To allow the alleged crook preside over his trial would test our faith in the wisdom of the founders.

"But, before we tag the founders with this blunder, it is worth asking whether the Constitution does, in fact, so provide. One cannot lightly dismiss the conclusion of four such eminent scholars, even if it is a judgment on a question on which they did not set out to build their reputations. 13 Is the Carter-Paulsen-Gerhardt-Pious verdict the most compelling constitutional conclusion? Would the Constitution really sanction such a procedure, which they, and we, would agree is asinine?

"Now I know what you're thinking, even those of you who may share my confidence that the Constitution does not mean what Professor Paulsen et al. suggests. 'Take a deep breath, Joel,' you counsel. 'Before you spin out 150 footnotes that 250 million Americans will never read, answer me one question: Who cares? Who cares whether the Constitution would let the Vice President run his own trial? Certainly not Carter, who devoted a mere footnote to it seventeen years ago; not Paulsen, who gave only two pages to the topic in a forum he occasionally uses to advance witty constitutional interpretations. 14 And why should they? Even if they're right, so what? As a practical matter, what Vice President would ever have the chutzpah, not to mention bad judgment, to try to run his own inquest? All it shows, even if Carter et al. are right, is that the framers were fallible; like the rest of us, they made mistakes. [*852] But who ever could have thought they were perfect? Fortunately, this "mistake" is one that won't come home to roost.'

"Now I agree with most of this. (After all, I wrote it). Whether Agnew could have presided is not one of the two or three most urgent topics in constitutional law. Historical circumstance has never forced us to address the question, and propriety and common sense make it unlikely that we will. The republic will not fall if the Vice President-Presides thesis stands unchallenged.

"But this thesis does raise another, and a rather basic, issue in American government - how should one go about interpreting the Constitution? Both Professors Carter and Paulsen rely exclusively on textual arguments to reach and defend their conclusion here under discussion. 15 But what is the proper role of textual analysis in searching for constitutional meaning especially where, as is the case here, the text speaks only indirectly to a subject and the conclusion it might support, is, as Professor Paulsen aptly put it, 'stupid?'...

After outlining the Paulsen-Carter arguments, Goldstein addresses the argument that this is a "political question" so that the courts could never review a Senate's refusal to let the Vice President preside anyway. Indeed, in Nixon v. United States, http://laws.findlaw.com/us/506/224.html "the Supreme Court held that at least some issues relating to impeachment are political questions which courts cannot decide on the merits. Judge Walter L. Nixon, Jr. had challenged a Senate rule which allowed a Senate committee, instead of the whole body, to listen to and observe witnesses and issue a report to the Senate pertinent to his impeachment. Judge Nixon complained that this procedure violated the Impeachment Trial Clause which provides that 'the Senate shall have the sole Power to try all Impeachments.' 27 What 'try' meant in the Senate impeachment clause was a political question, the Court held."

Goldstein argues that the does-the-vice-president-preside case might be different from Judge Nixon's case, partly because different parts of the constitutional text are involved, and partly because the *Nixon* case involved a *judicial* impeachment: "some considerations regarding checks and balances, which influenced the Court in Nixon do not apply so forcefully here. There the Court concluded that judicial review of judicial impeachments was contrary to the basic system of checks and balances, since 'impeachment was designed to be the only check on the Judicial Branch by the legislature.' 36 It would not do to leave the checkee power to review checkers. But here that constraint would not arise..."

In any event, even if the Court *did* deem the issue political and unreviewable, "the fact that a court deems an issue a political question does not mean the Constitution does not address it. It simply may mean the Constitution speaks in a language judges cannot or will not interpret. The Constitution speaks to Congressmen as well as to judges; they, too, are duty bound to act consistently with its directions...The Vice President-Presides analysis, therefore, requires consideration on the merits....

After discussing the roles of text, the framers' intent, precedent, and "structure and relation" in constitutional interpretation, Goldstein argues that

"The Agnew-Could-Preside argument suffers from the fact that it rests entirely on a textual argument. To be sure, the text is not a bad place to rest if the props are sturdy and not easily shaken. When the support does not enjoy that advantage, textual arguments need reinforcement...

"The textual argument here is not dispositive as its proponents suggest. The Paulsen et al. thesis is a clever interpretation of textual fragments. But it is not the only viable reading. The Vice President-Presides thesis clashes with the conclusions other types of arguments suggest. It is worth considering other data to interpret the Constitution even for a question as remote from actual experience as whether Agnew could have presided (had he sought to) at his impeachment trial (had he not resigned and been impeached).

"To be sure, Professor Paulsen is right when he points out that 'nowhere does the Constitution say that the Vice President is stripped of his power as presiding officer of the Senate just because the business at hand is his own impeachment trial.' 49 Although the text does not say the Vice President cannot preside, it does not say that he can preside at his own trial either. On the contrary, the text does not speak specifically to the subject of who presides when the vice president is tried. It is, in essence, silent. Accordingly, we cannot determine whether Agnew can preside over his own trial simply by reading the text; we must invoke other tools of constitutional analysis.

"Now Professor Paulsen et al. might contest this point by arguing that since the text names the Vice President as President of the Senate it is not totally silent regarding whether the Vice President can preside at his own trial. The Vice President is entitled to preside unless some specific text withdraws that power. The President of the Senate clause tilts the scale in favor of the Vice President; he should benefit from a presumption.

"[*860] This swing does not quite ring the bell. There are several answers. First, the President of the Senate Clause may be understood simply as conferring an office on the Vice President without defining the scope of his duties. In other words, that clause may simply designate the Vice President as the Senate's president without specifying the full scope 50 of his authority. 51 Under this approach, Congress, under the Necessary and Proper Clause, or perhaps the Senate, would retain authority to structure the vice president's powers..."

Moreover, writes Goldstein

"the President of the Senate Clause is not the only textual fragment pertinent to this issue. The President Pro Tempore Clause empowers the Senate to choose a president pro tempore to preside 'in the absence of the vice president or when he shall exercise the office of president of the United States.' 52 Clearly Agnew was not exercising presidential powers. But if he was absent during his impeachment trial the Constitution would specifically authorize the president pro tempore to preside.

"Of course, the Vice President presumably would attend his impeachment trial, and accordingly Professor Paulsen argues he would not be 'absent' when he's before the Senate for his impeachment trial....' 53 Since he is not absent, the president pro tempore cannot preside. Whether Professor Paulsen is right depends on from what absence is measured. If 'absent' means 'not present in the chamber,' then the Vice President under impeachment would not be absent if he attends the proceedings. But alternatively absent may refer simply to absence from the presiding chair. In that case, Vice President Agnew's presence in the chamber would not necessarily mean he was entitled to preside. There might be situations when the Vice President were in the room but [*861] necessarily absent from the chair. The Constitution does not, on its face, resolve this question; it speaks simply of 'the absence of the Vice President' as necessitating a president pro tempore, without specifying absences from what...

"Moreover, the Vice President's physical presence, in the chamber or chair, and desire to preside cannot be the sole criteria of her right to preside. Let us suppose that a Vice President entered the Senate chamber but was physically or mentally unable to preside. Although she would be present at the Senate's place of business, she would be incapable of conducting its business. Surely the Senate would not be expected to dispense with functioning simply because [*862] a deranged Vice President showed up each day to preside even though too infirm or irrational to do so...

"To be sure, as Professor Paulsen points out, the Constitution specifically provides that the Chief Justice is to preside at the President's trial but is silent [*864] regarding the Vice President's. Invoking expressio unius, Professor Paulsen argues that the textual silence means the Vice President can preside.

"Yet this argument credits expressio with more oomph than it has. The principle of expressio unius is hardly an absolute; it is honored in the breach...In many modern applications, expressio unius appears to be a weak principle of constitutional law, something of a makeweight. Courts invoke it typically when some other modes of constitutional argument support it.
Thus, the inferences drawn are not dependent simply on textual silence but rest on other supports.

"Finally, expressio unius is inapplicable here because so many alternative, more plausible theories explain why the Constitution does not specifically disqualify the Vice President from presiding. That the framers made provisions for the impeachment trial of the President but not of the Vice President does not mean they did not intend that the Vice President be disqualified from presiding over his own trial. They may have thought the principle that no man would be judge of his own trial so firmly embedded in law as to require no constitutional restatement. Alternatively, they may have focused on the presidency because of its importance. The Vice Presidency, which was an after-thought contrived in the convention's closing days, attracted less attention. Congress or the Senate could work out appropriate principles at a later time.

"Surely the text should be taken seriously. But it cannot always be read literally when so doing leads to silly results that would frustrate its apparent purposes. The Constitution provides that the Chief Justice will preside over the President's impeachment trial. Suppose there was no Chief Justice when the President was impeached. Would that mean the Senate could not try the President? Could the President prevent his own removal by refusing to appoint a Chief Justice when the job fell vacant? Suppose the Chief Justice died or [*865] resigned during the trial; would the proceedings grind to an immediate halt? The text does not provide that anyone else can preside at the President's impeachment trial and accordingly expressio unius would suggest the Chief Justice's entitlement to be exclusive, but I would feel pretty confident that the senior justice would discharge that function even though the text specifically requires the Chief."

"The textual argument is accordingly hardly persuasive. This frailty is fatal to the Vice-President-Presides thesis, for the textual argument is its only support. The notion that Agnew could preside at his own impeachment is not simply stupid, as Professor Paulsen suggests. We view it as misguided because it wars with basic structural ideas implicit in the Constitution.

"Fundamental structural principles preclude a Vice President from presiding over his own impeachment trial. First, such a practice would offend ideas intrinsic to the notion of the rule of law, one of the fundamental concepts of our Constitution. 59 Agnew presiding at his trial would violate the injunction against being judge in one's own cause. The principle, which dates to Dr. Bonham's case, 60 is deeply embedded in our common law tradition and is central to our jurisprudence. James Madison articulated the aversion to self-judging in Federalist No. 10, 'no man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improperly, corrupt his integrity,' he wrote....

***

Anyway, I am rather sympathetic to the argument that in view of the conflict of interest, the vice-president must *necessarily* be "absent" from presiding over his own trial. (Paulsen would reply that this would leave the Senate free to deem the vice-president "absent" on any other occasion as well, and thereby to undermine the President of the Senate Clause; but I think that the legal tradition against being a judge in one's own case makes this a special situation, analogous to situations where the vice-president--even if present in the chamber--is physically or mentally unable to preside.) This, in my view, would leave the president pro tempore the presiding officer.

In any event, as Goldstein notes, as a practical matter no vice-president is likely to be crazy enough to insist on presiding over his own trial; such behavior would simply guarantee his conviction. It is extremely unlikely the courts would overturn the Senate's refusal to let the vice-president preside; either they would find in favor of the Senate on the merits or--more likely IMO--they would find it an unreviewable "political question." It is true that there are various grounds, as Goldstein notes, why *Nixon v. United States* http://laws.findlaw.com/us/506/224.html might be distinguished, but as he also notes, of the reasons the Court gave for its decision "at least four would seem to preclude judicial review of a decision regarding who would preside over Agnew's impeachment. First, based on the historical record, the Court found no evidence the framers intended judicial review of impeachment. 28 Second, the Court deemed questions regarding impeachment nonjusticiable, because finality was required for presidential impeachment. It simply would not do to have the nation endure a protracted period in which the courts adjudicated whether a President had been wrongfully removed from office. The Court seemed to imply that since the Constitution does not distinguish between impeachment proceedings for the President and federal judges in this respect at least, the same concerns which would preclude review of a presidential impeachment would inhibit judicial review of Judge Nixon's trial. 29 If that consideration prevented review of an impeachment of a district court judge it would apply all the more so to impeachment of a Vice President, especially one only an impeachment-and-conviction-of-Richard-M.-Nixon away from the Presidency. Moreover, the court feared judicial review of impeachments would slide it down a slippery slope. Certain remedial problems could arise. Could a court order a removed federal judge reinstated? Could it direct Congress to create another judgeship if Judge Nixon's spot was filled? 30 Finally, the court concluded that it would be inappropriate for the [*855] judiciary to review an impeachment conviction since it might later preside over a criminal prosecution of the same officer. 31 In Agnew's case, that would hardly have been a hypothetical concern. Indeed, a full scale investigation was underway and the Department of Justice was prepared to seek an indictment..."
 
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Perhaps we should be grateful that this never came up before 1886, ie while the President Pro Tempore was next in line to the Presidency, thus in effect "Acting Vice President" should a vacancy arise.

In such a case, whether the VP ot the PPt presided, you'd have a presiding officer who was "judge in his own cause", since conviction of the VP would, for all practical purposes, transfer his office to the President Pro-tempore.
 
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