Impeachment Questions

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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.

8 Comments

This is an interesting discussion, Jeremy. But I guess I'm not too worried about it. Yes, you've described a plausible situation where a person can spearhead a process that will put him in power, but I think that whether that's unacceptable depends a great deal on just how much influence that spearhead has. Impeaching and convicting a President and Vice-President is not an easy thing to do; no Speaker could even come close to managing to do it alone. So that any such process would require lots and lots of people backing said Speaker, his role there doesn't bother me. (Think of this as another system of checks and balances.)

Well, I wouldn't say I'm worried in the sense that some breach of conduct could easily happen, but it disturbs me in that what seems to me to be a conflict of interest is enshrined in the Constitution as the normal method of impeaching a president/vice-president pair. It's the principle of it that bothers me.

There was a lot of discussion of this very idea when the Clinton impeachment proceedings were taking place in 1999.

But I'm pretty sure the series of checks and balances in place will take care of the problem.

First, I don't think the Speaker can make a motion to impeach or second that motion. For that matter, I'm pretty sure the Speaker abstains from voting unless absolutely necessary. S/he's certainly welcome to cast a vote, but I think it's a matter of House etiquette that the Speaker not vote or at least votes only in the most extreme circumstances (e.g., Constitutional amendments).

Second, there's no rule that Pelosi will be elected Speaker of the House. It is not inconceiveable that the Democrats may become the majority in the House but Hastert remains in his position as Speaker of the House. The Speaker does not have to be in the majority party.

Finally, I have two things more. (a) The House of Representatives begins impeachment proceedings, not the Speaker of the House. If the Speaker abstains from voting, does the conflict of interest arise? (side note: Isn't it the Clerk and some committee (???) that decides the voting docket?) (b) If it is a conflict of interest, it has nothing to do with the Constitution. The Constitution does not set out the full presidential line of succession (I'm pretty sure presidential succession is mentioned 3 (?) times in the Constitution: Article II, 20th & 25th amendment). It was the Presidential Succession Acts that determined the Speaker of the House would be third in line.

Perhaps it'd be best if we all write our representatives to say that we think there's a problem in the presidential line of succession.

I was only thinking of Pelosi because she's the one most people think is most likely to be Speaker. Whoever is the Speaker will be both in charge of the House during impeachment and third in line for the presidency, and those are the two things that count, not who the individual person is. If it's Hastert, the same would be true.

The Speaker of the House doesn't even have to be a member of Congress, as far as the Constitution goes. It's always been a member, but nothing requires that but tradition (and the sense that it's nice if the Speaker gets a vote).

I'm pretty sure the line of succession is in the Constitution, in one of the later amendments. I thought I had even looked at it earlier today, but now I'm not sure I did look at the whole line. Maybe it only went through the third and fourth spots. If not, then it would be fairly easy to change the line of succession.

My main issue has not been that the Speaker formally issues anything or formally votes anything but that the Speaker is in charge of the House of Representatives, which is the body that issues the impeachment. Since the Speaker is in charge, formal exclusion from ritual voting is not necessarily an exclusion from the behind-the-scenes running of the House that leadership will do. Influence is there.

Jeremy, you are right (and I hope that I didn't deny this) that a line of succession is mentioned in the Constitution. But the line of succession appearing in the Constitution only talks of the Vice-President taking over if the President is impeached or assassinated. That is as far as the Constitution goes.

Beyond the VP, nothing is mentioned in the Constitution. If it had been mentioned in the Constitution, then it would have been likely that the Secretary of State and not the Speaker of the House was the next person in line. This meshes well with the importance placed on the S of S in early American history.

What is meant by "in charge" of the House? I'm not sure I understand what it means for the Speaker to be "in charge." The Speaker is influential, but the Speaker is not the only person who creates the voting docket.

I think the Speaker of the House is generally taken to be responsible for the direction of the House and the things it does. Hastert is largely held responsible for the things the House has done under his leadership. That's all I mean. It's under the Speaker's watch when the Speaker can have a huge role in shaping the direction things go.

I was sure there had eventually been an amendment for the line of succession beyond vice-president. I guess not. Still, the normal succession according to law is this way, even if it's not presumed by the Constitution.

Interestingly, I found that something like this worry came up when Andrew Johnson was being impeached:

During the impeachment and trial of President Andrew Johnson in 1868, when the office of Vice President was vacant, it was apparent that the 1792 Act's placement of the President pro tempore of the Senate and the Speaker of the House in the line of succession created serious problems, especially when the President and these congressional officers came from different parties. Such placement injected partisan tensions into what should be a smoothly-functioning succession mechanism, and it opened the door to a congressional cabal's seizure of the Presidency by elevating one of their own through impeachment and removal of the President in the event of a vacancy in the Vice Presidency.

I think the concern here was not so much with the individuals in those positions in Congress but that it could easily be a political move by a party in control of Congress when the president and vice-president are of a different party. This led to a law specifying the cabinet officials as the line of descent without the Congressional officers at all. The Secretary of State became second in line instead of fourth. That was changed back more recently (and the Speaker of the House was switched with the President Pro Tempore of the Senate, who had originally been second with the Speaker third).

The article also has a much more substantial argument against having members of Congress in the line of descent. It argues that it's outright unconstitutional but also bad policy, and I think it's right on both counts. It undermines separation of powers. It puts someone in the line of succession who is not an officer of the United States, and there is reason to think the Constitution would rule that out. It puts someone in the line of succession who was not elected nationally or appointed by someone elected nationally (as at least Gerald Ford was, even if he was never elected nationally, and the same is true of cabinet secretaries). The Speaker of the House may never even have been elected to statewide office, as at least senators have been.

There's far too much damage to be undone from the last 5 years of GOP control to waste time on impeachment. Two or three dem house members may mention it, but it won't go anywhere.

JPE, I'm not going to take the flame-bait, but I will point out that I did say the impeachment possibility is extremely unlikely. I wasn't entertaining this as some likely scenario worth dreading. I was talking about it as a theoretical possibility worth considering because it reveals a problem in our laws as they stand.

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