The Volokh Conspiracy

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Issue-Voting and Impeachment

Why Republican Senators can vote on the merits of Trump's impeachment even if they believe the Seante has no power to impeach ex-officers.


I have long been fascinated by the "voting paradox" in multi-member adjudicative bodies (including, but not limited to, appellate courts), cases in which there is a majority preferring one outcome (plaintiff wins, say), while there are, simultaneously, separate majorities on each issue in the case leading, logically, to the opposite outcome (plaintiff loses).

Here's a simple example.  Imagine a 3-member tribunal (Doe, Jones, and Smith) at your local soccer club, which meets to review all disciplinary actions occurring during games in your league.  This past weekend, a player on one of the teams was given a red card and ejected from the game, and the tribunal is considering whether the foul was so flagrant that the player involved should be suspended for the entire season.  There's a threshold question: Does the tribunal even have the power to issue such a suspension order? Jones and Smith think it does; Doe does not.  As to whether the foul would merit a suspension, Smith and Doe think it would; Jones does not.

Power to suspend?                 Suspension Warranted Here?

DOE          NO                                         YES

JONES       YES                                        NO

SMITH       YES                                        YES

A majority of the panel (DOE + JONES) would not issue the suspension. At the same time, a majority of the panel believes both that it has the power to issue the suspension (JONES + SMITH) and that a suspension is warranted on the facts of this case (DOE + SMITH).

So what should they do? What's the right result here?

This problem turns up with some frequency in decisions from multi-member appellate courts, including the Supreme Court, and I've blogged about it on a number of occasions (here, here, here, and here).

I recalled all of this last week, when the Senate, by a 55-45 vote (with five Republican senators joining the 50 Democrats), rejected a motion introduced by Sen. Rand Paul (R-KY) which declared that is unconstitutional to hold an impeachment trial for an individual who no longer holds federal office. [My co-bloggers have exhaustively analyzed the constitutional arguments pro and con—see here, here, and here]

Some commentators have suggested that this necessarily—logically—means that the Senate will acquit ex-President Trump at next week's trial.  As Senator Susan Collins put it: "Do the math."  Conviction requires a 2/3 supermajority, and if 45 Republican Senators believe that the proceeding is constitutionally impermissible, that gives ex-President Trump the votes that will ensure his acquittal.

That may indeed be true for the political calculus; the final votes of the 45 Republican senators may turn out to be entirely fore-ordained, dooming the forthcoming trial to return a judgment of acquittal. Indeed, some or all of those 45 might, I suppose, refuse to participate at all in the proceedings, and abstain from a final vote, on the grounds the proceedings are not constitutionally authorized.

But it's not some kind of logical or legal imperative; it is neither unreasonable nor illogical nor hypocritical for those 45 senators, once the Senate as a body has decided the threshold question of its power and determined that it can proceed, to participate in the deliberations at trial, to weigh the evidence, and to vote on the merits of the charge.

It's a simple case of "issue-voting."  In my hypothetical above, if the tribunal meets on Monday to consider the threshold question of its jurisdiction to proceed, and after deliberation it decides in the affirmative, it is not illogical or unreasonable or hypocritical for DOE to vote, on Tuesday, in favor of a suspension. "I don't believe we have the power to do this, but the tribunal of which I am a part has decided otherwise, and it would serve no purpose for me to sit out the deliberations on the merits."

Courts, of course, do this all the time. A 3-judge panel might hear an interlocutory appeal on the question of whether the lower court has personal jurisdiction over the defendant; if it decides 2-1 in the affirmative, the judge in the minority is not thereby disabled somehow from participating in a review on the merits should that come up at a later date.

So a vote in favor of Sen. Paul's motion does not foreclose any senator from considering the merits of the case when it is formally presented next week.  (Interestingly, the top two Republican leaders in the Senate—Sens. McConnell and Thune—both of whom supported the Paul motion, have both dropped hints that this is in line with their own personal views on the matter, and that they will participate fully in the upcoming trial and consider the evidence presented and base their votes accordingly).