Philip Bump, “Why a secret impeachment vote isn’t going to happen,” Washington Post, Washington Post, January 26, 2021 (3:51 p.m. EST).

The Senate Democrats have the power to establish by a vote of 50+1 that the vote on whether or not Donald Trump is guilty of “high crimes and misdemeanors” shall be taken BY SECRET BALLOT.

Democrats have this power. Will they use it?

The Democrats don’t have a good record of using their constitutional powers. For years, they were slow to subpoena Trump Administration witnesses who refused to appear in Congressional hearings, and to vigorously pursue the enforcement of such subpoenas in court.

Throughout 2019 they refrained from using their constitutional impeachment power to pursue a broad inquity into Trump’s abuses of power and crimes, and even the cases of obstruction of justice detailed with great specificity in the Mueller Report.

Democrats never evidenced that they had read the Mueller report closely, and that they understood that getting the Report out publicly was a tremendous achievement by Robert Mueller and his team.

Mueller could not call for prosecution of Trump because DOJ policy prohibited prosecution of a sitting president, and issuing a report that violated that policy would give Attorney General William Barr a perfect excuse for blocking publication of the Report.

Somehow, Mueller was able to thread the needle and get the report published, despite another Justice Department policy that information about a case should not be made public when there is no decision to prosecute a defendant. To be sure the press and commentators also failed to grasp and report on these essential points, often drawing erroneous conclusions from the fact Mueller did not recommend prosecution of Trump in his report.

What reasons could Senate Democrats have for not pushing through a SECRET BALLOT Rule for the vote on Trump’s guilt or innocence?

First, Philip Bump points out the most obvious reason. He writes:

It is true that the Senate can establish its own rules governing the impeachment trial. It would only take the entirety of the Democratic caucus (and the agreement of Vice President Harris) to implement a rule under which the final vote on Trump’s guilt would be cast in private. But there’s a catch, as Louis Michael Seidman, Carmack Waterhouse professor of constitutional law at Georgetown Law, noted in an email to The Washington Post.

Article I of the Constitution, he wrote, “provides ‘the Yeas and Nays of Members of either house on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.’ So I guess the question is whether it would be constitutional to have a secret ballot if fewer than [one-fifth] objected — a very unlikely hypothetical. I see no reason why not.”

So, the first reason is that the effort might not really provide for a secret ballot, since one-fifth of (Republican) Senators present could force a recorded vote.

Second, the Senate Democrats could want to get the vote of every Republican voting to acquit Trump on the record, to be used against them in future electoral campaigns.

The counter to this argument is quite simple. We already know that a large number of Republicans are likely to vote to acquit Trump. After a secret ballot, those Republican Senators who vote against Trump and who want to make that fact public can simply do so.

However, this counter-argument would only be relevant if there weren’t 1/5 of the Senators present willing to call for a recorded vote.

Third, Senate Democrats may be afraid of the propaganda onslaught to which they will be subjected if they overcome their fears and decide to use the raw power they have to impose secret ballot.

The howls of outrage are likely to reach fever-pitch levels. How dare they violate Trump’s “due process” rights, Repuublicans will argue, by ordering a secret ballot? (Let us ignore the inconvenient fact that juries decide on guilt or innocence, even in the most serious criminal cases, by secret ballot.)

The Republican record of Bad Faith

There is a deep irony here. Senate Republicans have a strong record of proceeding in BAD FAITH, as exemplified by their blocking Merritt Garland’s nomination to the Supreme Court from consideration. For over a year.

Eight Senate Republicans and 141 House Republicans voted to block ratification of the Electoral College vote on January 6, 2021–AFTER the insurrectionists had invaded the Capitol and threatened the lives of legislators and staff, and caused the deaths of five people, including a Capitol policeman killed by beating with a fire extinguisher.

The Republicans gave succor to Trump’s BIG LIE that he had won the election, providing the fuel for the January 6 insurrection.  Republican then-Majority Leader Mitch McConnell remained silent for two months after the November 3 election, and three weeks after the Electoral College had formally certified that Joe Biden had won the the election.

All through November and December, as Trump attempted to overturn the vote, pressuring election officials, Governors and legislators to ignore election results, McConnell and Republican Senators, Representatives and officials remained silent, or actively participated in Trump’s vast cospiracy to overthrow the election and the Constitution.

The Republicans have clearly acted in bad faith. They have become co-conspirators with and/or apologists for Trump.

Indeed, the Republican Party, and most but not all Republican Senators and Representatives, have become ENEMIES OF DEMOCRACY.

Given the fact that one-fifth of Senators present can force a roll-call vote, what can the Senate Democrats do to provide Republican Senators a chance to convict Trump in secret?

First, they can make the vote of whether or not to make the vote on Trump’s conviction secret itself secret.

Second, of course, they can make the main vote on Trump’s guilt itself secret.

These votes should be held at the end of the presentation of evidence and final arguments, which could conceivably change some votes.

It is conceivable that at that point fewer than one-fifth of the Republican Senators present would want to preventtheir fellow Senators from voting their conscience, in secret.

Another possibility, suggested by Professor Heather Cox Richardson, is that some Republican Senators might find some reason to stay home and not vote, lowering the the number of Senators required to reach a two-thirds majority for conviction.

Heather Cox Richardson, “Letters from an American,” February 7, 2021 (Substack).

Of course, if fewer Senators are in attendance, fewer will be required to meet the requirement of one-fifth of those present in order to force a recorded vote.

No one said any of this simple. Nonetheless, Democratic Senators need to figure these details out, and use them to their full advantage.

Conclusion

Democratic Senators need to overcome their fear of Trump and his supporters, and USE THEIR RAW POWER TO ENSURE A SECRET BALLOT on the vote to convict or acquit Trump.

A SECRET BALLOT could give Republican Senators an opportunity to rid their party of Trump, to redeem their party from its current position of being THE PARTY THAT IS THE ENEMY OF DEMOCRACY, and to start rebuilding a Republican Party based on principles of democracy and the rule of law.

The Trenchant Observer