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11/12/2012

Eliminating the Absurdity in the Vice President's Impeachment Trial: Part 2
Mike Rappaport

Having argued that the absurdity rule should apply to the situation where the Constitution allows the Vice President to preside at his own impeachment trial, let me now address more precisely what I think the effect of the absurdity rule on this issue is.  For my earlier posts on this issue see here and here.

As Mike Ramsey says, the Constitution discusses the issue with three related sentences of Article I, Section 3.  (1) “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.”  (2) “The Senate shall have the sole Power to try all Impeachments.”  (3) “When the President of the United States is tried, the Chief Justice shall preside.

Before applying the absurdity rule, one must determine how the constitutional text (without the absurdity rule) applies to the issue of the Vice President presiding at his own impeachment trial.  It would seem that the Vice President being President of the Senate means that he would always have the power to be the presiding office.  (At the time of the Constitution, the office of president usually was the presiding office of a multimember group of some kind.)

At the time of the Constitution, there was a principle – universally affirmed – that a person should not be a judge in his own case.  See, e.g. Federalist 10.  What was disputed, however, was in what situations it applied.  But while the principle arguably might not apply as to voting on legislation that affected your interests (such as taxes), one can strongly argue that this principle must apply to an impeachment trial – which the Constitution literally treats as a trial.  In particular, one might argue that what was historically meant by a trial does not involve a proceeding where the defendant is also the presiding officer.  Under this view, the constitutional text (without the absurdity rule) would exclude the Vice President from presiding at his own trial.  There is more force to this argument than people normally admit.  In fact, the more I think about it the more I am attracted to it.  But I still think that most originalist textualists would not accept it as the best reading of the meaning of trial and so let's move on to applying the absurdity rule.

As I have said, Chief Justice Marshall’s statement of the absurdity rule asks whether all or virtually all people would reject the apparently textual result in a case.  If we are confident that all would reject it, then the absurdity rule should apply.  I believe that all would reject having the VP preside at his own impeachment trial both at the time of the Constitution and now, especially because the wide acceptance of the principle of not being a judge in one’s own case.  Remember, the question is not whether everyone favors departing from the text, but rather whether everyone rejects the result.

How then to apply the absurdity rule here?  This is always the hardest part of the matter, because there is usually more than one possible way to depart from the text.  There is support, I believe, for departing from the text as little as possible to avoid the absurd result.  Here the smallest departure would involve interpreting the term trial as excluding the defendant from presiding at his own trial.  The argument here is not that this is the correct textual reading of the term (although as I argue above it might be).  Instead, the argument is that the absurdity rule indicates reading trial in this manner.  This is the smallest departure because it takes a textual term, that might have meant this but probably does not, to mean this.

This understanding would also be consistent with the Constitution’s decision to specifically provide that the Chief Justice should preside at the President’s impeachment trial.  The Constitution needed to specifically replace the Vice President as the presiding office during the impeachment of the President because having the Vice President preside would not precisely involve being a judge in  his own case.  (The Vice President would not be on trial.)

I hope that I have not gone on too long about this matter.  Although it does not currently involve an important political issue, it raises important matters of constitutional interpretation.

(Cross Posted at the Liberty Law Blog)