Should impeachment votes be cast in secret?
This week marks the one-year anniversary of Donald Trump’s second acquittal. The anniversary has been overlooked as war looms in Europe and the former president remains in legal jeopardy. But remember Trump’s 2021 trial and acquittal. The third impeachment in the past 25 years set several records: the first time a president has been impeached twice, the first presidential impeachment in which all members of the majority caucus voted unanimously for impeachment. It was the first US Senate trial of a US president who had left office. It was the first indictment from office in more than 100 years that included a charge of violating Section III of the Fourteenth Amendment, denying office to those who took up arms against the United States.
There’s a fascinating question left over from Trump’s second impeachment that Congress should consider now before it faces another president on trial: Should we have a secret ballot for impeachment. Would a secret Senate vote have led to Trump’s conviction?
There is no way of knowing what might have happened if the Senate had voted in secret. It has been widely claimed that a clique of Republican senators, many of whom were still publicly furious with Trump during the January 6 attack, wanted to condemn but did not do so out of fear – not just out of political concern, but out of anxiety about physical retaliation after the near-death experience of the Capitol attack. If 10 more Republicans had joined the 57 senators (all 50 Democrats, including Joe Manchin of West Virginia, and seven Republicans) who voted “guilty,” Trump would have been impeached and barred from running again in federal office. Democratic Sen. Ed Markey of Massachusetts, who publicly advocated for a secret ballot at the time, speculated that more Republicans would have joined the vote. Republican Senator Jeff Flake of Arizona, who was no longer in office at the time, suggested as many as 35 Republicans may have offended Trump. In the House, Liz Cheney, the Republican from Wyoming, said she believed a majority of Republicans would have joined her and 10 other GOP conference members in impeaching Trump if there had been a ballot. secret.
She has good reason to think so. Weeks later, after 94% of House Republicans voted not to impeach Trump, 70% voted to keep Cheney, arguably the most pro-impeachment voice in the GOP, in the House leadership position that she occupied then. In particular, this vote took place by secret ballot.
Weeks later, as Cheney stepped up his criticism of Trump, not just voting for but joining the Jan. 6 Commission as a House Speaker Nancy Pelosi appointee, House GOP Leader Kevin McCarthy held a second vote, this time to oust Cheney from the party leadership. After a hasty vote, the House Republican Caucus kicked the three-term lawmaker out of her position as conference chair. (Party member votes, away from the House and Senate floors, are often held in secret.)
I think impeachment votes should be held in secret. They are too mature for bullying, too heavy for regular rules. Changing the rules is tricky but not impossible.
Let’s see where the secret ballot is.
We did not have a secret ballot for the impeachments of Presidents Andrew Johnson, Bill Clinton or Trump himself.
But nothing in the Constitution prohibits it. The Constitution explicitly gives both houses the right to set their own rules of procedure for making impeachment secret. The Constitution specifically states that “each chamber may determine the rules of its procedures”. This clause is why we have destructive filibuster rules requiring supermajorities even when the Constitution says only a majority is needed to pass legislation. Each chamber could adopt a rule making impeachment votes secret.
But this is where there is some ambiguity. The Constitution also says: “Each chamber shall keep a journal of its deliberations and publish it from time to time, with the exception of those parties who, in their judgment, demand secrecy. This gives each chamber the ability to keep votes shrouded in mystery. Quite simple. But a few words later, it would seem to undermine that line about “judgment demands secrecy.” The Constitution states that any senator or member of Congress can demand a public reading of yeses and noes. As long as one-fifth of each house agrees to the motion, the votes will be made public. Some scholars believe that the rule of fifths could be rendered moot. And it’s up to Congress to decide when the votes on this secrecy might come: before or after a ballot? During or before the debate? Norm Ornstein, the great scholar of Congress, told me he thought a secret ballot could survive any legal challenge.
At present, no chamber holds a secret ballot on any measure, although voice votes, if not followed by a roll-call vote, may allow members to hide amid the shouting. (If members so request, the Chair may order a roll-call vote and usually the Chair consents.)
So it’s an interesting paradox. Does secrecy, often considered the enemy of democracy, guarantee democracy? It depends. While the secret ballot is your right when voting for, say, city council, it is not, say, a juror’s right, as they can be asked in open court how they voted. When legislators vote, it’s almost always open because we’ve decided as a society that’s the most critical thing a legislator does, more than less important tasks like voter services or holding polls. hearings.
As a journalist and a citizen, I’m glad we know how Representatives and Senators vote on big and small issues. The recorded vote is the most important means of accountability. Imagine if we didn’t know who voted for war or tax breaks? I instinctively recoil at the thought of a shroud of secrecy over something as serious as impeachment.
But there is a case for a secret impeachment ballot that is paramount. It’s not necessarily because it would change the outcome. In the case of President Clinton, a secret ballot in 1999 might have allowed a few Democrats and perhaps one of the three Republicans who voted for general acquittal to change votes without fear of reprisal. Surely there wouldn’t have been 67 votes to eject Arkansan from the White House.
In the case of Trump’s second impeachment, the humiliation of additional votes against Trump, even if never enough to reach the two-thirds mark required for a conviction, would have been good for the Republic. It would have been good to see not just Trump critics like Republican Sen. Ben Sasse of Nebraska vote to indict the former president, but a more honest account of Republican sentiment.
Overall, I would say that Congress should vote for impeachment under the protection of a secret ballot. The risk of intimidation – political, physical and otherwise – is simply too great, especially for party members to turn against their president. There are worse things than secrecy, and mob rule is one of them.