I'll probably say something tomorrow about why I think there's some reason to be a little skeptical about whether Democrats will take over the House of Representatives, but something occurred to me yesterday about the potential consequences of a Democratic takeover that I thought was worth blogging about.
If Democrats will occupy the majority of the seats in the House, it's most likely that Nancy Pelosi will become the Speaker of the House. It's possible that some other candidate will gain that position in an election among the Democratic representatives, but I don't find that extremely likely. As Speaker, she will almost certainly be inundated with requests from Democratic members of Congress to pursue impeachment hearings for President Bush and Vice-President Cheney. She has so far said that should would not pursue impeachment.
But she will surely be pressured to do so. What happens if she gives in or if her resistance is merely to maximize the chances of Democrats taking Republican seats in this election? What happens if the Democratic takeover of the House gives Democrats enough seats to succeed in issuing impeachment charges (since surely some Democrats will not support impeachment)? Two issues regarding conflicts of interest were worrying me. One turns out not to be an issue, but the other remains a worry for me.
My initial worry was that the Senate would have to vote on conviction, and with a divided Senate that could potentially lead to a tie vote. Would the vice-president cast that vote? I didn't remember anything about that in the Constitution, and it amazed me that they wouldn't have provided for such circumstances. My next thought was that maybe someone down the line of succession would cast the vote, but it would seem strange to have the person most responsible for the body that sent the impeachment charges to be a tie-breaker in the conviction. That's like having the head prosecuting attorney also serving on the jury. The next in line is just as bad, since the President Pro Tem is a member of the Senate and would then have two votes. That didn't sound like a good idea. Do you then go to the secretary of state?
Then it occurred to me that the vice-president has the tie-breaking vote as a result of being the president of the Senate. But the Chief Justice of the United States presides over the Senate during impeachment trials. So would John Roberts be the tie-breaking vote? That seemed much better to me, since it involves someone from another branch of government entirely.
But then I realized that there is no tie-breaking vote for impeachment trials. They need a two-thirds majority for both the issuing of impeachment charges in the House and for conviction in the Senate. There is no tie vote in a two-thirds majority. They either equal two-thirds or greater, or they fail to achieve that many votes. Even when the numbers in the Senate allow for exactly two thirds (which they do not when there are 100 senators, as there are now), exactly two thirds does not require a tie-breaking vote. It counts as a successful aye vote. So it turns out this issue just doesn't arise. There's a reason the tie-breaking vote by the vice-president never appears in the Constitution in the discussions of impeachment hearings. There's no such thing as a tie-breaking vote with a two-thirds majority.
The other issue that worried me, however, seems to me to be still a concern, even if the possibility of its occurring is pretty unlikely. The next person in line for the presidency after the president and vice-president is the Speaker of the House, who was the person first responsible for issuing the impeachment charges to begin with. It's true that the whole of Congress is responsible for issuing the charges, but in the case of impeachment of both the president and the vice-president it turns out that the impeachment comes under the leadership of the person poised to take over if the charges lead to a conviction. Doesn't that constitute a conflict of interest? Doesn't this seem to be a real weakness of the way the Constitution sets up these procedures given the line of succession? (Or rather, since I think the line of succession came later than the impeachment proceedings, isn't it a weakness of the way the line of succession is set up given the way impeachment proceedings had already been established?)
Now there are ways to avoid this result. If it's looking as if conviction is likely, the vice-president could resign, leaving the president to appoint a vice-presidential successor not involved in the proceedings in case of a conviction (pending a majority approval of both the House and the Senate). Or the president could resign, leaving the former vice-president to appoint a new vice-president as a successor in the event of a successful conviction (with the same majority approval needed). Either result is somewhat unsatisfactory, since it involves some uncertainty in whether there will be a conviction, and if the House or Senate refused to act on the nomination in time the conviction could take effect first. On the other side, the Speaker of the House could perhaps remove herself from any consideration, leaving it up to the majority leader to decide whether to pursue charges and then staying out of the debate entirely. There will always be concern that she's influencing things behind the scenes, however.
Most importantly, none of these actions would be guaranteed. I could see a president and vice-president stubbornly refusing to resign and then being ousted by Senate convictions, with the next in line then coming into the presidency. So the Speaker of the House who had been responsible for spearheading the movement to impeach to begin with would then ascend to the vacancy she had just led the way toward effecting.
That strikes me as a very bad result, and it isn't just a potentially strange outcome for unusual impeachment circumstances (as would be the case with a tie-breaking vote issue if it took a mere majority). This seems instead to be the expected result of the normal workings of our system. Isn't that a little disturbing? The Speaker of the House is constitutionally supposed to be both the leader of the body that issues impeachment charges and the next-in-line for the presidency if the president and vice-president are both convicted of impeachment charges.