Does a vice president retain their tie breaking vote in the Senate during an impeachment trial if it is the vice president being impeached?

Question

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?

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Note: The constitution only mandates that the chief justice preside over impeachments of presidents, but not necessarily of others. (Article I, Section 3, Clause 6: ... 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.

Answer 1

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 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, 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. As a senator, the president pro tempore could cast their own vote to break (or make) a tie.

In practice, the Senate resolution authorizing the impeachment trial would contain a rule regarding participation of the vice president (as presiding officer) during their impeachment trial.

Note that, by precedent,

The Vice President has no authority to decide constitutional questions. He has no rulemaking power over the Senate. The Vice President must apply the rules of the Senate as they are. [Riddick's Senate Procedure]

Thus, the vice president cannot question, on constitutional grounds, a rule adopted by the Senate prohibiting the vice president from presiding over their own impeachment trial. It follows that, if they cannot preside over their own impeachment trial, they cannot cast any tie-breaking votes.

Answer 2

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.

Answer 3

The Constitution does not say the Vice-President has any power to cast a vote when the senate is equally divided, it actually rather forbids the Vice-President to cast any vote in an unequally divided (or undivided) Senate:

The Vice President of the United States [] shall have no Vote, unless [the Senate] be equally divided. Art.1, S.3, C.40.

Any Senate Rule seeking to deprive the Vice-President of its limited voting right would thus be valid under (the text of) the Constitution. As other answers already noted, such a rule exists in the case of impeachment trials, and you can refer to them for the exact reference.

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Setting aside the question of the tie-breaking vote, as for the power of the Vice-President to preside over their own impeachment trial however, the question is more complicated. Basically, and except in the case of the impeachment trial of a sitting president:

• The text of the Constitution arguably implies a Vice-President's constitutional power to preside over the Senate (that is, if interpreting the role of President of of a body as implying the power to preside over that body)
• The intent of the drafters of the constitution did include that power as one of the Vice-President's (see the very end of this answer).

However, the question of what entity or body, if any, has the authority to (1) interpret the Constitution and state whether it actually includes that power or not, and (2) settle an alleged impediment of that power in the name of the Rules of the Senate, is more complicated.

That is because the Senate has a very large autonomy and independence in the determination and enforcement of its own rules. However, according to this comment, and assuming such power for the Vice-President were to be recognized as included in the Constitution, then the courts and the judicial branch would be able to rule against the application of the Senate Rule, and in the favor of a Vice-President demanding to preside over their own impeachment trial.

But even in that case, they wouldn't necessarily have the power to cast any (tie-breaking) vote.

Answer 4

Any of this is irrelevant. Impeachment trials in the Senate require 60 votes. A 50-50 vote, therefore, by the Constitutional mandate of 60 votes, automatically fails and the person is acquitted. There would be no need to break a tie, as a tie is not 60 votes.