The rules and precedent for impeachment trials are scant. There have only been two impeachments of Presidents that have gone to trial in the Senate–and the rules were an issue both times. Here’s all the Constitution says about the impeachment trial of a President:
Article I (concerning Congress), Section 3: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
The House, under Nancy Pelosi, is holding on to the articles of impeachment to force agreement on the Senate the rules for the trial. More evidence accumulates each day. Now Lisa Murkowski (R-Alaska) offers a thin crack in Senate Republican stonewalling and a threat to McConnell’s vow of a speedy trial with no witnesses. Despite all the Republican partisan condemnation of the impeachment process (and total avoidance of the facts), the American people actually want to hear the evidence and the witnesses, not just experience a sham trial pushed through on some power trip by Mitch McConnell colluding with the President.
Few Republicans in the Senate or the House of Representatives dare offer a peep of criticism of Donald Trump for fear of ending their political career. After all, where does an establishment Republican go, a Republican disgusted with the energized white nationalist base but with little hope of votes from Democrats or middle of the road independents? (See Fear and Loyalty: How Donald Trump Took Over the Republican Party)
So what if just three Senate Republicans, listening to their constituents, demand a real trial with witness testimony? What’s to keep them from offering a secret ballot to the Senators voting as the jury? Farfetched you say? Rule making for this trial only requires the rebellion of few Republican Senators looking for a place of respect in history to scotch McConnell and reach 51 votes. (McConnell understands he cannot dodge having a trial in the same manner that he simply declines to take up all other House legislation.)
Secret ballot? The idea was floated on November 12 by Juleanna Glover, a former advisor to a number of Republican politicians. The very same day Jim Geraghty wrote a rebuttal in the National Review, “A Secret Ballot for Impeachment Would Be a Terrible Idea.” Remember that the National Review is the mouthpiece for the Republican/Libertarian establishment. The swiftness of the response is testimony to the nervousness Glover’s column produced among some Republicans.
The idea is far from dead. “The case for letting senators vote secretly on Trump’s fate” popped up on CNN on New Year’s Eve, written by Robert M. Alexander. It’s a compelling read.
Precedent for a secret ballot? There’s quite a lot of it. After all, juries typically make their decisions in secret. Mr. Alexander:
Anonymous juries are sometimes used in high-profile cases when retribution toward jurors is a possibility or past efforts to obstruct justice have occurred. They have been used, for example, in the cases of crime bosses such as John Gotti and Joaquin “El Chapo” Guzman. At the outset of the impeachment inquiry, California Rep. Adam Schiff likened Trump’s behavior to that of a “classic mafia-like shakedown.”
Secret ballots have occurred in Congress before. In 1800 and in 1824 the House voted by secret ballot (within each state delegation) to elect Presidents. The Electoral College had failed to produce a winner of an absolute majority of the Electoral College voting, so the election was thrown to the House. In such a case the Constitution says each state gets a single vote. The votes cast by the individual Congressmen within each state delegation were not made known.
We are, as a country, in a crisis of governance a point at which the rules we thought were so solid are failing us. In crises we re-examine the rules previously agreed to, the Bylaws, the Rules of Order, precedent, or The Constitution. We find the rules are here are pretty skinny–and certainly open to debate. It is time to pay attention. This is not a time to simply back down in the face of a looming strong man autocracy.
Share the idea of a secret ballot. If there are Senate Republicans who have not swallowed Trumpism hook, line, and sinker perhaps they’d vote according to their moral convictions and their oath of office if Trump and McConnell couldn’t know the color of the ballot they cast.
Keep to the high ground,
Jerry