- - Tuesday, January 21, 2020

As the impeachment trial of the president begins, fidelity to the U.S. Constitution demands the chief justice decline any invitation or inclination to break a tie vote should one occur; not only does the Constitution not grant him such power but, in fact, the Constitution grants that exclusive power and authority to a different constitutional officer.

Hypotheticals and wishful thinking currently abound in certain quarters concerning the role of Chief Justice John Roberts in presiding over the impeachment trial. Such speculation usually involves the chief justice being called upon to break a tie vote on a procedural matter (such as calling witnesses or which witnesses to allow), together with a certain desired outcome depending upon where one stands in the political spectrum.

Notwithstanding the siren songs of the Washington establishment and media hoping the chief justice will cast a tie-breaking vote against the president’s interests, the chief justice has a chance to demonstrate judicial restraint and the primacy of the Constitution if called upon to cast such a vote. Such action is not accomplished through impartially casting a tie-breaking vote in favor of one political party over the other, or in favor of the House managers or the president. Instead, to be true to the Constitution, the chief justice must refuse to cast any tie-breaking vote whatsoever.

With respect to an impeachment trial of the president, the only authority the Constitution grants a chief justice is to preside over the trial; the Constitution does not grant him any vote in the process. And if Chief Justice Roberts were to cast a tie-breaking vote in the Senate, not only would he be assuming a power not granted to him by the Constitution, but he would, in fact, be usurping and violating the right and prerogative expressly granted to another person by the Constitution. 

The Constitution is clear and unequivocal: The power to cast a tie-breaking vote in the Senate is explicitly granted to one and only one person, namely, the president of the Senate. Such grant of power and authority is without limitation or exception.  

The President of the Senate is a constitutional office within the Senate itself; who holds the office of President of the Senate and the power and authority that one possesses because of that office is explicitly set forth in the Constitution: “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”  

Thus, the power and authority of the vice president as president of the Senate to cast all tie-breaking votes in the Senate derives not from the fact that he presides over the Senate; the power and authority to cast all tie-breaking votes is vested in him because he holds the constitutional office of president of the Senate.

While the chief justice may “preside” over the impeachment trial as provided for in the Constitution, he has not assumed the office of president of the Senate. That constitutional office is and remains, throughout the course of the trial, vested in the vice president.  Nothing in the Constitution temporarily divests the vice president of holding the constitutional office of President of the Senate, nor does anything in the Constitution temporarily suspend the constitutional grant of power to the president of the Senate to vote in the Senate when the senators are equally divided.  

Concededly, during the impeachment trial of President Andrew Johnson in 1868, Chief Justice Samuel Chase cast at least two tie-breaking votes. And objections by Sen. Charles Sumner of Massachusetts to such action by Chief Justice Chase were rejected by a majority of the senators. But the Senate, through its rules or otherwise, cannot change or alter the Constitution, including the authority and power expressly given to the president of the Senate by the Constitution. In a situation involving a tie vote during the present impeachment trial, Chief Justice Roberts must, in the first instance, be captive to the Constitution, not the Senate or its rules.

The Constitution places no limitation or restriction upon the power of the president of the Senate to cast tie-breaking votes in the Senate. Any and all tie votes in the Senate can only be broken by the president of the Senate — that is to whom the Constitution expressly grants such power and authority. Thus, if called upon to cast a tie-breaking vote during the impeachment trial, the chief justice must refuse to do so. Such refusal is not to be undertaken for political expediency or consideration, or to avoid making a difficult or what will be inevitably perceived to be an unpopular decision in certain quarters; instead, the chief justice must refuse the invitation of casting any tie-breaking vote out of fidelity to the Constitution itself.  

• Curt C. Hartman, a constitutional lawyer and former state court judge in Ohio, served as special counsel to Sen. Mike DeWine during the impeachment trial of President Clinton.

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