The Case for a Secret Senate Impeachment Trial Vote: A Reflection on Donald Trump’s Second Impeachment
Today's Senate is not the Senate the Framers originally designed. Photo taken by author.
In the lead-up to former President Donald Trump's first Senate impeachment trial, former Republican Senator Jeff Flake of Arizona caused controversy in conservative circles for his claim that “at least 35 senators” would vote to convict Trump if the vote were to be cast in secret. In the wake of Trump's second impeachment trial, Democratic Senator Ed Markey of Massachusetts shared a similar sentiment, posting to Twitter that “Republicans would convict Trump without question” if conviction was by a secret vote. The call for secret votes during Senate presidential impeachment trials is not new: spanning from the Clinton impeachment back in 1998 to Donald Trump's second trial this February, the argument in favor of allowing senators to vote in secret has been gaining traction. Those in favor of the secret vote argue that although it would lack the transparency Americans have come to expect from their governing institutions, it would relieve senators of possible political retribution if how they wish to cast their vote is incongruous with what their constituents want.
A Changing Senate
The United States Constitution lays out the impeachment process: the power to impeach is left to the House of Representatives, while the power to try and convict an impeached official is left to the Senate. Conviction requires a ⅔ majority of senators, or 67 senators, and would result in immediate removal from office. The Senate can then vote to disqualify that individual from holding public office in the future by a simple majority.
Alexander Hamilton explained the Framers of the Constitution’s choice to host the impeachment trial in the Senate in Federalist Paper 65, arguing the Senate would provide the “necessary impartiality” to adjudicate cases of public officials who violate the public trust. Yet, it is important to realize that today's Senate is not the Senate the Framers originally designed. Hamilton’s assessment of the Senate when writing Federalist Paper 65 in 1788 was reasonable at the time; senators were originally appointed by state legislatures to insulate them from public opinion more than the popularly elected House of Representatives. However, with the passage of the Seventeenth Amendment in 1913, the United States began electing senators by popular vote. This change has subjected senators to the same external political pressures from constituents, media, and political parties as members of the House of Representatives.
The constitutional and sociopolitical structure of the Senate has changed while constitutional impeachment proceedings have remained the same, creating a tension between how the Senate is intended to operate during impeachment and our current reality. Today, public opinion plays a formative role in how senators cast their votes to convict or acquit; they must consider how their votes may affect their political standing and ability to get reelected. Senators, and particularly senators from the party of the impeached president, are often driven—or restricted—by their own political agendas and reelection goals to vote a certain way given the visibility their vote has. This may be at odds with the true spirit of their beliefs.
This reality is illustrated by the discordant words and actions of Senate Minority Leader Mitch McConnell in the wake of this year’s January 6th insurrection. On February 13, 2021, Senator McConnell stated on the Senate floor that "there is no question—none—that President Trump is practically and morally responsible for provoking the events of the day.” Soon after, however, he voted to acquit the former president. Senator McConnell claimed his vote to acquit was a matter of jurisdiction: he argued that since the former president had already left office by the time of the trial, he was a private citizen and thus could not be tried by the Senate, despite the Senate voting 56 to 44 earlier that week that it is within the Senate’s jurisdiction to convict an official that has already left office. However, the fact that Senator McConnell represents a state that has reliably voted for Republican senators for the past two decades and had voted for Donald Trump 62.1% to 36.2% in the 2020 presidential election suggests his constituents’ preferences likely played a key role in determining his vote choice. If this tension exists for one of the leading members of the Senate, it is probable, and even to be expected, that the same tension exists for his fellow Republican members representing pro-Trump states.
History and Constitutional Rationale of Secret Votes
Logistically, members of the Senate can fairly easily hold an impeachment vote in secret. A secret vote would need to be established in the Senate’s rules for those specific impeachment proceedings, which are confirmed by a simple majority. In the context of February's impeachment vote, this means all Senate Democrats, including Vice President Kamala Harris casting a tie-breaking vote, could have voted to conduct it in secret.
A constitutional argument against the use of secret ballots is a clause in Article 1, Section 5 of the Constitution, which states ⅕ of present senators can request for a vote to be recorded in the journal of proceedings. However, considering the Republican Senators who may have desired the political cover to secretly vote to convict Donald Trump, and the Democrats’ desire to convict the former president (all 50 Senate Democrats voted to convict), it is plausible that fewer than 20 senators would have opposed voting in secret. Furthermore, while the clause requires the journal to be periodically published, it qualifies this as “excepting such Parts as may in their Judgment require Secrecy.” With a lack of precedent on how this clause may be interpreted in the context of secret Senate impeachment trial votes, it is possible that even if 20 senators called for the vote to be entered into the journal, it could still be made secret from the public. By and large, the clause is a constitutional safeguard for both transparency and maintaining secrecy in cases where it is deemed necessary. As we reflect on February’s impeachment trial and the apparent dissonance between Republican Senators’ beliefs and voting decisions, the Senate’s vote to convict impeached presidents has become one such case of necessity.
The Secret Vote Today
A secret final vote on conviction is a reasonable and plausible solution to the tension senators face during impeachment proceedings: it would create the kind of insulation from popular opinion that has been corrupted by new political pressures placed on senators and would provide them with the political cover they need to act fairly and objectively without fear of retribution. The secret vote has already been used in our own government: the House of Representatives decided the 1800 and 1824 presidential elections by secret vote. Furthermore, secrecy is not new to Senate presidential impeachment proceedings. Deliberations during President Andrew Johnson’s impeachment trial were closed and unrecorded, and the Senate held several days of closed-door deliberations before the final vote of President Bill Clinton’s trial.
Some may argue that even if the final vote to convict is conducted in secret, it will not prevent senators from being externally pressured to publicly share how they voted. Senators may also choose to publicly announce their vote to reap the electoral benefits of voting in line with their constituents. These are fair points. However, the potential for even one senator to change their vote because they have the protection of a secret vote can carry enormous weight in impeachment proceedings. The Senate fell ten votes short of convicting former President Trump in February. We may never know if a secret vote would have been enough to turn ten votes, but it might have turned some.
If we truly want to have an impeachment process that is fair and that effectively checks public officials who have committed crimes against democracy, we must provide senators with the security to cast their vote as they see fit. In an ideal political system and climate, votes to convict would be transparent—there would be no need for them to be conducted in secret. For now, a secret vote may be our best option for securing the Senate impeachment process as it stands today.
Aishlinn Kivlighn is a Staff Writer at CPR and a first-year student in Columbia College studying Economics and Political Science.