This week marks the first anniversary of Donald Trump’s second impeachment acquittal. The anniversary has been overlooked, with war looming in Europe and the former president remaining in legal jeopardy. But the 2021 trial and acquittal of Trump should be remembered. The third impeachment in the last 25 years set several records: The first time a president had been impeached twice, the first presidential impeachment in which all majority caucus members voted unanimously for impeachment. It was the first U.S. Senate trial of a U.S. president who had left office. It was the first impeachment of any 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 U.S.
There’s a fascinating question left over from the second Trump impeachment and one that Congress should consider now before it faces another president on trial: Should we have a secret ballot for impeachment. Would a secret vote in the Senate have led to Trump’s conviction?
There’s no way to know what might have happened had the Senate voted in secret. It’s been widely asserted that a clique of Republican senators, many still publicly enraged at Trump over the January 6 attack, wanted to convict but didn’t do so out of fear—not only political trepidation but anxiety over physical reprisals after the near-death experience of the Capitol attack. If 10 additional 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 forbidden from running again for federal office. Democratic Senator Ed Markey of Massachusetts, who publicly advocated for a secret ballot at the time, has speculated that more Republicans would have joined the vote. Republican Senator Jeff Flake of Arizona, who was out of office by then, has suggested as many as 35 Republicans would have offed Trump. In the House, Liz Cheney, the Wyoming Republican, has said that she thought a majority of Republicans would have joined her and ten other GOP Conference members to impeach Trump were there a secret ballot.
She has good reason to think so. A few weeks later, after 94 percent of House Republicans voted not to impeach Trump, 70 percent voted to keep Cheney, arguably the most pro-impeachment voice in the GOP, in the House leadership position she then held. Notably, that vote was by secret ballot.
Weeks later, as Cheney ramped up her criticism of Trump, not only voting for but joining the January 6 Commission as an appointee of House Speaker Nancy Pelosi, GOP House Leader Kevin McCarthy held a second vote, this time to oust Cheney from party leadership. After a hasty voice vote, the House Republican Caucus ejected the three-term lawmaker from her post as conference chair. (Votes of party members, away from the House and Senate floors, are often held in secret.)
I think impeachment votes should be held in secret. They’re too ripe for intimidation, too fraught for the usual rules. Changing the rules is tricky but not impossible.
Let’s review where secret balloting stands.
We did not have a secret ballot for the impeachments of Presidents Andrew Johnson, Bill Clinton, or Trump himself.
But there’s nothing in the Constitution forbidding it. The Constitution explicitly gives both chambers the right to set their own procedural rules to make impeachment secret. The Constitution specifically states, “Each House may determine the Rules of its Proceedings.” This clause is why we have the destructive filibuster rules requiring supermajorities even when the Constitution says only a majority is needed to pass legislation. Each chamber could pass a rule making impeachment votes secret.
But this is where there’s some ambiguity. The Constitution also says, “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.” That gives each chamber the chance to keep votes shrouded in mystery. Simple enough. But a few words later, it would seem to undercut that line about “judgment requires secrecy.” The Constitution mandates that any senator or member of Congress can demand a public reading of the yeas and nays. So long as one-fifth of each chamber agrees on the motion, the votes will be made public. Some scholars believe the one-fifth rule could be rendered moot. And it’s up to Congress when the votes on this secrecy might come: Before or after a ballot? During or before the debate? Norm Ornstein, the great congressional scholar, told me that he thought a secret ballot could survive any judicial challenge.
Right now, neither chamber holds secret ballots on any measure, although voice votes, if not followed by a roll call vote, can allow members to hide amidst the shouts. (If members ask, the chair can order a roll call vote, and generally, the chair consents.)
So, it’s an interesting paradox. Does secrecy, often seen as the enemy of democracy, guarantee democracy? It depends. While the secret ballot is your right when you vote for, say, the city council, it’s not, say, a juror’s right because 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 it is the most critical thing a legislator does, more so than lesser duties like constituent services or holding hearings.
As a reporter and a citizen, I’m glad that we know how Representatives and Senators vote on large 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 instinctually cringe at the idea of a shroud of secrecy over something so grave as impeachment.
But there is a case for a secret impeachment ballot that’s 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 couple of Democrats and maybe one of the three Republicans who voted for blanket acquittal to switch their votes without fear of retribution. There would surely not have been 67 votes to eject the Arkansan from the White House.
In the case of Trump’s second impeachment, the humiliation of additional votes against Trump, even if it were never a sufficient number to hit the two thirds mark required for conviction, would have been good for the Republic. It would have been good to see, not just Trump critics like Republican Senator Ben Sasse of Nebraska vote to indict the former president, but a more honest accounting of Republican sentiment.
On balance, I’d say Congress should vote for impeachment under the protection of a secret ballot. The risk of intimidation—political, physical, and otherwise—is just too great, especially for members of a party to turn against their president. There are some things worse than secrecy, and mob rule is one of them.
