It’s likely that there are a number of Republicans in the Senate who, if March 1 were guaranteed to be their last day in that chamber, would vote to convict former president Donald Trump after his upcoming impeachment trial. Yes, they’ll want to hear the evidence presented at the trial, as Sen. Mitt Romney (R-Utah) said Sunday, but it’s hard to believe that most minds aren’t made up. And for a number of Republicans, that probably means thinking that Trump deserves to be found guilty but — because they aren’t planning to leave the Senate anytime soon — voting to find him innocent anyway. Why risk a backlash from the Republican base to punish a guy who isn’t even in the White House anymore?
There are a lot of good answers to that question, of course, but few hold more sway than the simple consideration that opposing Trump will probably spur a significant political headache, at least over the short term. But this gulf — between what they would do were there no political repercussions and what they will do — has led to an effort to reduce the former to encourage the latter: to reduce the political risk of a guilty vote.
Leading to theories like this one, from former labor secretary Robert Reich.
It’s a nice idea. It also won’t work, for several reasons.
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.”
In other words, yes, there could be a secret vote — but only if there weren’t 20 Republicans, one-fifth of the chamber, who called for the vote to be made public. That is, in fact, a very unlikely hypothetical. There may be Republicans who’d like to vote to convict if the vote were conducted in private, but it is almost certainly not a group that constitutes 31 of the 50 Republicans in the Senate. If 20 senators, Democratic or Republican, want the vote to be public, the Constitution says they can make it public. The end.
What’s more, the idea that such a vote would remain private even if cast that way is highly unlikely.
“Politically it would be very difficult to pull off — to the point of it being pointless to attempt,” wrote Brian Kalt, Harold Norris faculty scholar at Michigan State University. Even if they somehow managed to avoid 20 senators demanding a roll-call vote, he said, “practically speaking, it’s hard to imagine anything other than every GOP senator being hounded by voters and the media into revealing how they voted.”
That’s also clearly true. Let’s say that, through some magic, an effort to force a roll-call vote yielded only 19 votes. You think that those 19 senators wouldn’t then quickly announce to the world how they’d voted, drawing attention to the senators who declined to do the same? The entire point of a secret vote is to avoid scrutiny over how the decision was made.
The system is built on the idea that elected officials will represent their constituents in good faith. That means, at times, making decisions with which their constituents will disagree, as a number of Republicans in the House did this month when Trump was impeached for the second time. It’s likely that a number of Republicans in the Senate will as well.
But it is also almost certain that a number of senators who think Trump deserves to be found guilty will instead vote to acquit out of fear of political — or physical — repercussions. There’s no secret ballot that can change that.