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If the vice president is the subject of an impeachment, does the vice president have a vote in the senate trial of which they are the subject?


Note: The constitution only mandates that the Chief Justice preside over impeachments of Presidents, but not necessarily of others. (When the President of the United States is tried, the Chief Justice shall preside.) Hence, this question isn't a duplicate of Does the Vice-President retain their tiebreaking vote during an impeachment trial of the President? as that question explicitly asked about the impeachments of Presidents.

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    It appears the constitution only mandates the Chief Justice to preside over impeachments of Presidents, not necessarily of others. (When the President of the United States is tried, the Chief Justice shall preside) Hence, this question isn't a dupe of Does the Vice-President retain their tiebreaking vote during an impeachment trial of the President? as that question explicitly asked for impeachments of Presidents. // cc @JJJ apologies for the confusion – Panda Jan 16 at 17:31
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    @Panda that's a good observation. I think it would be best to include that in the question body so it's clear how the answer to that question doesn't apply to this question. – JJJ Jan 16 at 17:34
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    It also doesn't say that the VP presides over any impeachment. I don't think they would intend for the VP to preside over their own trial. – Joe W Jan 16 at 18:06
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    How could there be a tie-breaking vote on impeachment? Doesn't it require a two thirds majority? – Alex Jan 17 at 20:08
  • @Alex The final vote on removal from office requires a 2/3s majority, but votes can come up before then that only require a simply majority, as mentioned here politics.stackexchange.com/questions/48797/… – suchiuomizu Jan 18 at 2:36
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Does a vice president retain their tie breaking vote in the senate during an impeachment trial if it is the vice president being impeached?

It depends, in part, on whether the vice president is acting president at the time of impeachment.

Though not mentioned in the Constitution, Senate impeachment trial Rule IV provides that the Chief Justice presides when the vice president, as acting president, is impeached.

When the President of the United States or the Vice President of the United States, upon whom the powers and duties of the Office of President shall have devolved, shall be impeached, the Chief Justice of the United States shall preside; ...

In that case, the Chief Justice will preside and cast tie breaking votes.

When the vice president is impeached in any other case it is unclear and may require a court decision to determine whether the vice president can preside at their own impeachment trial. In Can the Vice President Preside at His Own Impeachment Trial?: A Critique of Bare Textualism, Professor Joel K. Goldstein critiques the argument given by Professor Michael Stokes Paulsen.

Professor Michael Stokes Paulsen recently imagined a scenario like this, examined the text of the Constitution, and, in a clever article, suggested that the Constitution would permit the Vice President of the United States to preside over his own impeachment trial. "Now that’s stupid," concluded Professor Paulsen, in nominating this result for a coveted spot on the list of "Constitutional Stupidities." Professor Paulsen is not the first prominent scholar to express this conclusion. In 1983, Professor Stephen L. Carter concluded "that the Vice President could preside at his own impeachment trial, should he choose to do so," a conclusion he described as one of "a few glaring errors" the founders made. Seven years later, he confidently repeated his claim that "[t]he founders designed a Constitution in which the Vice President presides at his own impeachment trial" as evidence of the interpretation of the document. Michael Gerhardt, a leading authority on impeachment, endorses this conclusion,11 as did Richard M. Pious, a foremost expert on the Presidency.

Were these analyses applied as given, that the vice president could preside over their own impeachment trial, then it would follow that the vice president could cast tie breaking votes for all questions except for the final "shall be impeached" question.

Goldstein then argues there are different "Modes of Interpretation" that allow for a different conclusion. Later, in "A Critique of the Vice President-Presides Thesis", he says,

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 [the vice president] can preside over his own trial simply by reading the text; we must invoke other tools of constitutional analysis.

After analysis of the framers' actions during the writing of the Constitution, Goldstein says,

To the extent Professor Paulsen believes that the “omission of any such exception [to the Vice President presiding over his impeachment] can scarcely have been accidental,” he is, I believe, mistaken. It is inconceivable to imagine James Madison and the other founders consciously considering with equanimity the prospect of an impeached Vice President presiding over his own trial and concluding that it was good, especially given Madison’s opposition to self-judging. Its omission does not reflect a conscious intent to distinguish between the situation of the President and the Vice President. Had they thought of it, the framers surely would have provided that either the president pro tempore or the Chief Justice would preside over the Vice President’s impeachment trial.

Or perhaps they thought they had, in fact, specifically so provided, at least for most occasions. The framers conceived the Vice President as a legislative officer. As such, it was unlikely that occasion would arise to remove him by impeachment and conviction. The time when the Vice President would be at risk would be on those occasions when he exercised the office of the President. The weight of the evidence suggests that the framers did not intend the Vice President become President upon the death, resignation, removal or inability of his predecessor; they intended him only to exercise the powers and duties of the office. Thus, the framers conceived that when the Vice President acted as President, and accordingly would be most vulnerable, he could not preside over the Senate! It would be odd to conclude that the framers intended the Chief Justice to preside when the President was tried for impeachment but not if the Vice President acting as president was. More likely, the framers’ intent was that the President pro tempore preside whenever the Vice President acted as President but that the Chief Justice would preside over the impeachment trial of the President or Vice President acting as President. The Vice President has evolved into an officer of the Executive Branch. He rarely presides over the Senate, except on ceremonial occasions or to break ties in favor of the Administration. In view of this ongoing history, it would be anomalous if he sought to preside over a substantive event as momentous as his own trial!

Given this analysis of "intent", the vice president would not preside, leaving the president pro tempore of the Senate as the presiding officer. It would then be the president pro tempore who would cast tie breaking votes.

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The senate has rules that would give the Chief Justice of the Supreme court tie-breaking vote privileges during a presidential impeachment taking them away from the Vice President. It should go to follow that something similar would happen if the VP was getting impeached.

Although I am unable to find documentation to back it up I remember reading in the past that if a Senator is being impeached they are unable to take part in votes in their own trial. The only way the VP could participate is as a defendant as allowed by the senate.

https://www.legbranch.org/can-the-vice-president-vote-in-a-presidential-impeachment-trial/

The Senate’s rules and precedents permit the Chief Justice to cast tie-breaking votes when presiding in presidential impeachment trials. In 1868, Chief Justice Salmon P. Chase cast two tie-breaking votes while presiding in President Andrew Johnson’s impeachment trial. (The Chief Justice declined to vote on a third occasion later in the trial.) At the time, senators approved, albeit implicitly, the actions of the Chief Justice when they refrained from reversing them on appeal.

While the Constitution does not give the Chief Justice the power to cast tie-breaking votes in presidential impeachment trials, it does give the Senate plenary power over its rules of procedure. Specifically, Article I, section 5, clause 2 (the Rules and Expulsion Clause) stipulates, “Each House [of Congress] may determine the Rules of its Proceedings.” The Senate uses this authority to sanction its rules and precedents which, by extension, permit the Chief Justice to cast tie-breaking votes while presiding in presidential impeachment trials.

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    "It should go to follow that something similar would happen if the VP was getting impeached." What do you mean by "something similar"? The Chief Justice only presides over presidential impeachments; so who would preside over an impeachment trial of a VP? And who (if anyone) would have a tie-breaking vote? – user102008 Jan 16 at 18:20
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    It is doubtful that Senators can be impeached. !799, Blount was impeached but the Senate refused to hear the trial. Instead they voted to expel Blount from the Senate. – James K Jan 16 at 18:21
  • @user102008 As in someone other than the VP would be presiding over the trial and making the tie breaking vote – Joe W Jan 16 at 18:55
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    @JamesK Blount was already out of office when the Senate had the chance to hear the trial. They didn't believe they could convict someone who had already left office. – Ryan_L Jan 16 at 19:34
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    @JamesK To be fair the last time they actually expelled a senator was in 1862 and 14 of the 15 senators that have ever been expelled all happened because of the civil war. 18 more attempts have been made that did not succeed and only 9 have ever been censured. – Joe W Jan 16 at 21:56

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