Impeachment by Secret Ballot?

Donald Trump's Impeachment hearings have begun at a TV channel near you, and based on the evidence already available in the public domain, it appears that the US House of Representatives is very much likely to impeach the 45th President. That would make him the 3rd of that select group to have faced this ignominy - Andrew Johnson, who took over at the helm after Abraham Lincoln was assassinated, being the first back in 1868; Bill Clinton being the 2nd, in 1998. (Richard Nixon resigned in August 1974, 3 months after his impeachment hearings commenced, but before the House could vote). 

Both Johnson and Clinton were impeached by the House, Johnson by a vote of 128-47 (for intentionally violating an Act of Congress) and Clinton on two counts, by votes of 228-206 (perjury) and 221-212 (obstruction of justice). The subsequent Senate trials of those impeached Presidents - the second step in the process - did not go as per plan however.

Johnson had faced impeachment after he tried to get rid of his Secretary-of-War Edwin Stanton, in defiance of the Tenure of Office Act. The Act, later repealed, prevented the President from removing office-bearers without the approval of the Senate, if those office-bearers had been appointed with the advice & consent of the Senate. Johnson had vetoed the Act when it came before him, and Congress had promptly overridden the veto by passing it with a 2/3rd majority. Johnson went ahead and fired Stanton anyway, giving Congress the opportunity to impeach an unpopular President. The then 54-member Senate voted 35-19 for his removal, 1 short of the requisite 2/3rd majority.

Clinton's impeachment wasn't remotely close. The first count was actually defeated, 45-55, and the second ended at an impasse: 50 for and 50 against, way short of the 67-33 or higher that would have removed the President. The verdict was split almost exactly along party lines: no Democrat voted in favour of his removal (though Republicans, respectively 10 and 5, did cross the aisle to find Clinton not guilty).

Republicans enjoyed a 55-45 majority in the Senate in 1999 when Clinton's trial came before the US Congress' Upper House. Their majority is a thinner 53-45 today (there are 2 independent Senators currently: Angus King from Maine and Bernie Sanders from Vermont). And the US polity is much more entrenched and partisan than it was two decades ago. It's almost impossible, therefore, that if Trump is impeached by the House of Representatives and then tried by the Senate, 20 of the 53 Republicans will vote against him. Not publicly, anyway.

This is where the possibility emerges, expressed by Juleanna Glover in The Politico Magazine earlier this week, that the Senate could consider voting on the removal of Donald Trump by secret ballot. It would appear that this is a political rather than a legal strategy, but it has nonetheless caught the otherwise phlegmatic TDL's attention.

The logic is straightforward: The US Constitution does not specify the manner or the rules of the removal vote - this is left to the Senate to decide for itself, on a case-to-case basis. The rules for the Johnson and the Clinton removals had accordingly been decided by the Senate's of the day, through simple majority, as they will for the Trump removal. So, if 51 Senators decide to include in the rules a stipulation that the final vote on the impeachment article(s) shall be by secret ballot, such a rule would probably withstand a legal challenge. It is believed that this would free up many Republican Senators to vote as per their conscience rather than as per their support bases, whom they would have to face for their re-election campaign. Or because they'd rather have Vice President Pence take over. Or because they detest Trump as much as most Democratic Senators. And since this is after all a trial by jury, it follows that a secret ballot would not be anomalous, since a federal jury also always votes in trials in secret.

While all this seems fine in theory, one wonders whether matters of such consequence should ever be decided by secret ballot. The representatives of the people should do precisely that - represent the people. They should reflect the views and opinions of their constituents, and should be answerable for their choices made on the behalf of the people. Or, as Jim Geraghty argues over on the National Review, such a secret ballot "would represent senators trying to avoid accountability for their votes, during an exercise that is supposed to be a legislative effort to hold the president accountable for his actions."

It must be remembered that the Constitution of India, for example, stipulates voting by MPs and MLAs by secret ballot in the election of the President of India. But not for the impeachment and removal of that President.

Of course, The Dormant Lawyer is only going into this sort of sanctimonious conjecture because there is no precedent for this. The US Constitution does allow its Senate to vote by secret ballot on "questions" such as passing a Bill, adopting an amendment to a Bill and agreeing on a motion or appeal, unless 20 Senators oppose this, but the definition of "questions" does not include removals. As far as TDL has researched, no actual secret ballots have ever been held, but this was very limited research indeed. Either way, any such occurrences would hardly constitute a precedent, given the significance of this matter. Nor are there precedents of abstention in removal trials (30 Republican abstentions would bring the 2/3 threshold from 67 down to 46.67, which would be achieved by the 45 Dems and 2 Independents. Constitutionally, only 67 senators need to be present for the vote).

Which brings us to what sparked off Glover's opinion piece in the first place. Glover, who Wikipedia calls "one of the most powerful Republican lobbyists in Washington", has been a strategist and adviser to several Republican politicians (including President George W. Bush and his VP Dick Cheney), cites Mike Murphy, a fellow-Republican strategist, in her column. It was Murphy who said that 30 Republican Senators would vote to convict Trump if the ballot was secret, according to his source (another Republican senator). Later, former Senator Jeff Flake (Republican from Arizona) said that the number would be 35. Perhaps this is all just bombast, or a strategy to replace Trump with Pence, whom Glover et al might prefer, due to his traditional Republican stance. If there indeed are 35 Republican Senators who would convict Trump if they were promised immunity as it were, perhaps Glover et al are using this gambit to entice those Senators to, instead, abstain. Even that lesser evil would suffice.