Most of us have been operating on one assumption since the entire impeachment hearing circus rolled into town. Sooner or later the Democrats in the House are going to impeach Donald Trump. (They’ve been itching to do it since the inauguration.) And following that, Cocaine Mitch and the Senate Republican Majority will schedule a trial and refuse to remove Trump from office. In fact, it’s not even clear that they’ll be able to convince all the Democrats to vote for removal.
But what if there was a way around the potential backlash Senators from swing states (and some Republicans) would face if they voted in favor of removal? That’s the subject of a think piece at Politico today from Juleanna Glover, a Republican strategist who has worked for Bush 43, Dick Cheney and John McCain, among others. And how does she propose that the Senators manage this seemingly impossible feat? By setting up the rules of impeachment in the upper chamber so that the vote would take place via a secret ballot.
By most everyone’s judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn’t have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?
A secret impeachment ballot might sound crazy, but it’s actually quite possible. In fact, it would take only three senators to allow for that possibility…
But, according to current Senate procedure, McConnell will still need a simple majority—51 of the 53 Senate Republicans—to support any resolution outlining rules governing the trial. That means that if only three Republican senators were to break from the caucus, they could block any rule they didn’t like.
Glover concedes that her plan “might sound crazy,” and for good reason. Because it is. Any attempt to push through a rule change allowing the details of the vote to be hidden from the public likely would (and should) result in an uproar from the public. This isn’t just a question of transparency. It’s a matter of accountability to the voters on what is likely the most momentous decision the senators will make while in office.
On top of that, Glover’s underlying assumption of this being not only a plausible but legal strategy are far from assured. It’s true that Article I, Section 5 of the Constitution states that “each house may determine the rules of its proceedings.” But she ignores the directions given in the very next paragraph. For those who may have skipped class on the day they covered this, here’s how that paragraph reads. (Emphasis added)
“Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.”
So the Senate may be able to set its own rules for any proceeding, including impeachment. But at the same time, removing the President from office still requires a vote. How can you have a rule barring the yeas and nays from being publicly reported when any twenty senators could legally call for the vote to be recorded and published?
Glover is hardly the first person to pitch such an idea. The Harvard Crimson published an editorial back in the 90s (when a different president was being impeached) calling for the same secret ballot theory. The idea went nowhere.
It’s true that the Senate can vote to handle the matter via a closed session, and that’s been done more than fifty times in the past century. But the session generally only involves the actual deliberation of sensitive matters, not the final vote. (That’s how it was handled with Bill Clinton’s trial.) And even then, the Senate is expected to offer some rationale for justifying the secrecy.
If they are discussing matters of national security, military intelligence or other such topics, a certain amount of secrecy can readily be justified. But in this case, they would be asking the public to simply accept that the results of a vote should be kept from them simply because a lot of them are too cowardly to stand by their own vote. Isn’t democracy awesome?
While this might pass constitutional muster under a twisted interpretation of the rules, it’s a horrible idea. And that means it’s probably one that the Democrats are already working on.