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11/04/2012

Michael Stern and Seth Barrett Tillman on the Vice President's Impeachment Trial
Michael Ramsey

Regarding my debate with Mike Rappaport on whether the Constitution prohibits the Vice President from presiding over his own impeachment trial, here are a couple of insightful comments (that agree with me, of course):

First, from Seth Barrett Tillman:

This position -- that the VP presides at his own impeachment -- is put forward as a valid example of a constitutional defect. It is not. There are good examples of defects in our Constitution, but this is not one of them.  The moment the House brought articles of impeachment against a VP, the Senate would either: (a) declare the VP constructively absent (even over the VP's objections), or (b) go into the Committee of the Whole House -- which would have the effect of excluding the VP (as the presiding officer even if otherwise admitted to the proceedings). All trial proceedings would go through the Committee. If the Committee could not get 2/3 for conviction, then the proceedings would never return to the full Senate (where the VP might preside).  If the Committee could get 2/3 for conviction, then proceedings would go forward to the full Senate -- and even if the VP did preside, his vote would not matter. He would be convicted and removed from office. Once removed, the Senate would proceed to vote on disqualification, but the VP would already be gone -- so he could not preside or vote (even if the Senate were evenly divided). This is not an example of a constitutional defect. This is pretty close to constitutional perfection.

The only defect would be if the original motion to put the proceedings into the Committee of the Whole led to an evenly divided Senate. I am not going to lose any sleep in regard to that potential minuscule problem. Let's get real here. It is very unlikely that a VP will be impeached; it is also unlikely that an impeached VP will attempt to preside; and it is also unlikely that an impeachment VP who demands to preside will have the benefit of an evenly divided Senate (and attempt to vote on a motion that he has a direct interest in). …

But let's say … that this is a sound example of a constitutional defect. And let's go further, let's say that there are also sound normative reasons -- consistent with the constitutional design -- for ignoring the VP Presides Over the Senate provision in this context. So what? The fact that there may be normative justifications in hard cases to put aside express constitutional text is not a warrant to put aside express constitutional text in every case.  (It remains to be shown that this is a difficult/hard case.)

Note: this is a slightly edited version of Professor Tillman's post to the ConLawProf listserve, available here (in which he responds to Mark Scarberry, Sanford Levinson and others); thanks to Professor Tillman for permission to reprint it substantially in full.

Second, from Michael Stern of the Point of Order blog:

I was going to post something on your debate with Mike Rappaport regarding the VP presiding at this own impeachment trial, but your latest post [ed: here] largely covers what I planned to say. I agree with you that it would not be "absurd" for the framers not to have specifically prohibited the VP from presiding.

As you note, there are reasons why the framers would have provided for the chief justice to preside only at the President's trial. Although your initial post suggested that this provision was designed to remedy the VP's conflict of interest, I am not sure that is right. In Federalist No. 65, Hamilton explains the chief justice's role not as a means of ousting the VP, but as a way of securing a degree of judicial impartiality in the proceedings. He does not explain why this was done only for the President's trial, but perhaps, as you say, the framers thought that only the President's trial was important enough to warrant it. Moreover, if they thought about the issue at all, the framers might have been concerned that the chief justice, as a presidential appointee, could be perceived as biased against the VP.

The most obvious alternative to having the chief justice preside at the VP's trial would be to have the President pro tempore do so. Article I provides that the President pro tem acts "in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." One might wonder why the framers did not explicitly provide for the VP's impeachment trial as another exception.

It is entirely possible that the framers never thought about this, but there are non-absurd reasons why they might have rejected the idea. For one thing, if they explicitly addressed the issue of the VP's presiding at his own impeachment trial, wouldn't they also need to address a host of analogous conflict of interest issues, such as the Speaker of the House presiding at his own expulsion proceeding or an election contest involving his own seat? (or, as you suggest, a federal judge presiding over cases in which he is a party or has a direct interest). They might also have hesitated about specifying the President pro tem as the presiding officer for fear he could have his own conflict of interest. For example, they might have anticipated that he could be in the line of presidential succession (although this gets into the question of whether they thought Members of Congress could be "officers" within the meaning of Art II, sect 1, cl. 6.)

It doesn't seem unreasonable for the framers to have left this issue for the VP and the Senate to address. If the VP were to be impeached, the first question would be whether he would recuse himself. Certainly nothing in the Constitution requires him to preside at his own impeachment trial. If he were to decide not to do so, the Senate would have to determine whether this was a proper decision. For example, it might decide that the VP's status as defendant makes him "absent" in the constitutional sense. Or it might permit him to preside, but reserve the right to remove him if he were to make obviously biased or improper rulings. In any event, any rulings by the VP are subject to reversal by the Senate. So it cannot be said that the VP's presiding makes it impossible for him to be fairly tried by the Senate.

And, speaking of Vice Presidents, here is Michael Stern at Point of Order on a similar topic: Could Biden Vote under the 12th Amendment?  (Stern says no, and I agree).