Donald Trump will go down in history as the third US president to be impeached. Yet no president has ever been convicted and removed from office as a result of impeachment, and it appears unlikely that Trump will be, either.
While no Republican senator has indicated he or she will vote for Trump’s removal, prominent members of the GOP like former Arizona Senator Jeff Flake claim that at least 35 would do so if they were allowed to cast their ballots in secret.
Republican strategist Juleanna Glover has made the case for a secret ballot, arguing that it would be surprisingly simple to accomplish. (Steve Tidrick, then a Harvard law student, argued for a secret vote during the Bill Clinton impeachment.) Glover contends that it would take just a few Republican senators to demand a secret ballot on the condition that they would approve the rest of the rules governing the trial. Senator Brian Schatz, a Democrat from Hawaii, regularly points this out to his Twitter followers – stating that it only takes “four votes for a fair trial.”
The idea of a secret ballot, however, is contrary to the norm of transparency that would be expected for such a monumental decision. And it raises the issue of just how accountable elected representatives should be to American voters.
At the same time, members of the Senate have already stated the process will be highly partisan. South Carolina Sen. Lindsey Graham has said, “I will do everything I can to make it die quickly,” and added, “I am not trying to pretend to be a fair juror here.”
Senate Majority Leader Mitch McConnell went further, noting that he would be “in total coordination” with the White House. This, too, is at odds with norms associated with the rule of law, separation of powers and expectations articulated by the Framers of the Constitution.
In Federalist 65, Alexander Hamilton argued the Senate would be the proper venue to try the president because the House would lack the “requisite neutrality towards those whose conduct may be the subject of scrutiny.” Instead, the Senate would “allow due weight to the arguments” that produced the impeachment, Hamilton wrote. He could imagine no other venue that would be “sufficiently dignified, or sufficiently independent.”
Yet McConnell’s announcement that he would “not be an impartial juror” suggests Hamilton’s vision has not come to fruition in 2019 – and does not translate in the 21st century.
Why? Because the Senate of the Framers is not the Senate we have today. It was not conceptualized around a two-party system, nor was it to be popularly elected. Recall that until the 17th amendment was ratified in 1913, senators were selected by state legislatures, not directly voted into office by the citizens of their states. The original Senate was more detached from the citizenry, therefore enabling senators to exhibit greater freedom from retribution at the ballot box for making unpopular decisions. In short, the House would be the responsive body (reflecting the will of the people), while the Senate would be the responsible body.
In Federalist 65, Hamilton rightly understood that impeachment would undoubtedly “agitate the passions of the whole community” and divide the country into “parties more or less friendly or inimical to the accused.” And Hamilton’s vision is validated by impeachment polling in recent years.
In 1998, 58% of Republicans supported removing President Bill Clinton, compared to just 15% of Democrats. Currently, 82.4% of Democrats support removing Trump from office, while just shy of 10% of Republicans do.
Hamilton went further and argued that “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” For this reason, he believed the Senate would be the appropriate venue to hold a trial for impeachment, with the belief that senators would act as an impartial jury not swayed by public opinion or one’s allegiance to a candidate or party.
The emergence of the two-party system and the direct election of senators have dashed Hamilton’s hopes for an impartial body. Arguments for an anonymous jury can be seen as a means to capture the spirit of Hamilton’s arguments in Federalist 65. A secret ballot, though not what Hamilton was advocating for, would give the Senate what Hamilton described as “confidence enough in its own situation, to preserve, unawed, and uninfluenced, the necessary impartiality” to render a fair trial.
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.”
There is little doubt that Trump would seek vengeance upon any Republican in the Senate choosing to vote for his removal. The President has relentlessly targeted many of his critics on Twitter. He has questioned whether Schiff should be charged with treason, cited a Fox News personality in a tweet claiming his removal would result in a “Civil War”-like fracture and criticized former ambassador to Ukraine Marie Yovanovitch during her testimony, leading to claims that he was engaged in witness intimidation in real time.
If an anonymous vote sounds like a far-fetched fantasy, history shows us that it has already been used twice – not to remove a president, but to select one. Thomas Jefferson and John Quincy Adams were both selected by secret ballots through the House contingency procedure in 1800 and 1824 when the presidential candidates were unable to win a majority in the electoral college.
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If a future president fails to obtain a majority in the Electoral College, the House would decide in a contingent election with no requirement that the commander-in-chief be selected through a public process. It seems that if transparency and accountability are not required in that instance, the same can be said of an impeachment vote.
However, while holding an anonymous vote may allow senators the freedom to make decisions they believe are in the best interest of the country, the need for trust, transparency, and accountability are critical in our current environment. Recognizing that senators would likely vote differently depending on the openness of their decisions is telling, revealing that the impeachment process of the Framers is deeply flawed.
In this way, Hamilton fully understood the need for the Senate to be free of political retribution in order to be an independent and impartial jury. This now seems impossible given how our politics have evolved.