Congressman Dennis Kucinich (D., Rigel Seven) is engaged today in a quixotic attempt to introduce an impeachment resolution against Vice-President Cheney that even his own party doesn’t support.
In connection with the resolution, Glenn Reynolds brings up a truly bizarre accident of the Constitution:
The Senate has the sole power to try impeachments. The Vice President is the President of the Senate. He presides. The Constitution provides for only one exception in cases of impeachment: “When the President of the United States is tried, the Chief Justice shall preside.” That’s because of the obvious conflict-of-interest of having the VP preside when the President is tried. But there’s no similar provision for having someone else preside if the Vice President is impeached.
Looking at the text of the Constitution, it seems that this would probably be the case. There is no provision providing for a replacement for the President of the Senate — the Vice-President — when it is the Vice-President being impeached.
Of course, Reynolds points out another interesting possibility:
[I]f the Vice President is a legislative official, then it’s not an error at all — legislative officials aren’t civil officers of the United States, and hence aren’t subject to impeachment. Instead, they’re subject to expulsion by the house to which they belong, which in this case would be the Senate. This makes the impeachment problem go away, and perhaps even suggests that the Framers thought of the Vice President as primarily a legislative official.
Which would mean that Cheney could be expelled from the Senate under the prevailing rules for such expulsions. Even then, though, exactly what would the Senate be expelling him from ? And what impact would that have on his position as a member of the Executive Branch and potential successor to the President ?
Just one of those weird anomalies that lawyers think about in their spare time.
Further thoughts in the form of a preliminary draft of Reynolds’ law review article on the subject can be found here.
November 6th, 2007 at 4:35 pm
maybe the senate would have to expel him from the Senate before he could be removed from the vice-presidency?
November 6th, 2007 at 4:58 pm
Heh, I needed a good laugh. Such an attempt by Kucinich could have many people scratching their heads looking over the Constitution for how to go about this possibility.
November 6th, 2007 at 5:57 pm
In a constitutional crisis such as a Dick Cheney impeachment (note the sarcasm on the alliterative phrase), the President Pro Tempore would probably preside.
November 6th, 2007 at 5:59 pm
ak62,
The President Pro Tem is not a Constitutional officer, and the Constitution clearly says that the President of the Senate shall preside.
It is a puzzlement.
Honestly, I think Reynolds’ point in the law review article about the Founders not conceiving of the idea that a Vice-President would ever do anything impeachment worthy (not because of virtue, but because the office is essentially powerless) may be closer to the truth than anything else.