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Impeachment Trial

Should Senators Vote Secretly in Impeachment Trial?

To say there exists little historical precedent for presidential impeachment trials would be an understatement. Before Trump, only two presidents, Andrew Johnson and Bill Clinton, have ever faced an impeachment trial in the Senate, and the circumstances in each trial were very different. During Johnson’s trial, for instance, 41 witnesses testified, whereas Clinton’s trial only featured a handful of witnesses. If Senate Republicans get their way, however, Trump’s trial will feature neither witnesses nor subpoenas for documents, and it will end quickly with an acquittal. The Constitution gives Congress the freedom to determine its own rules for how to handle impeachment trials; this fact, combined with the relative lack of historical precedent, makes it difficult for anyone to predict how the trial will proceed. That being said, the trial will likely be shaped in large part by partisan allegiance to the president, as several Republican senators have already said they’re not interested in acting as impartial jurors and Mitch McConnell has predicted a “largely partisan outcome.” Because hyperpartisanship threatens jurors’ impartiality, and thus the integrity of the trial, some political strategists have suggested that the senators should cast their ballot in secret, protecting them from the political ramifications of their vote and encouraging an independent decision.

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According to Juleanna Glover, a Republican strategist, it would be fairly easy for the Senate to ensure a secret ballot. Creating rules for the trial requires only a simple majority vote in the Senate; assuming Democrats vote in lockstep in favor of a secret ballot, only three Republicans would have to defect to reach the 51 votes necessary to effectuate the rule. Though they don’t publicly admit it for fear of the political repercussions, many Republican senators strongly oppose the president in private, according to various reports. In fact, former Republican senator Jeff Flake has said that he believes that there are at least 35 GOP senators who would vote to remove Trump if the votes were private; such a result would make Trump the first president in US history to be removed by the impeachment process. A secret ballot, however, would break with Senate tradition and expectations of transparency surrounding Senate proceedings, particularly in the extreme case of deciding whether to remove a sitting president from office. That being said, the atmosphere of hyperpartisanship, combined with an overall dislike of the president among lawmakers, may be enough to convince more than half of the Senate to institute such an unusual rule.

Few people predict that Trump will be removed from the White House before the 2020 election, but we live in an era in which unprecedented and unpredicted political events are borderline commonplace. 

While American politics has long been characterized by partisanship, the current political environment is arguably more partisan than ever before, with the vote in the House to impeach Trump passing almost entirely along party lines. The Senate is often considered to be a more impartial chamber than the House, but by most accounts it is still more partisan than it’s ever been. In Clinton’s trial, Republicans and Democrats collaborated to determine the rules, resulting in unanimous consent among all 100 senators—such an outcome is nearly inconceivable in today’s Senate. This very partisanship, though, is precisely what may motivate some senators to support a secret ballot. And while there exists a certain demand for transparency for actions taken by the Senate, grand jury proceedings, which the Senate trial will essentially function as, allow jurors to deliberate and vote in secret. 

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Already, cracks are starting to form in the Republicans’ solidarity in their support of Trump; Republican senator Lisa Murkowski, for instance, has said that she is “disturbed” by McConnell’s pledge to coordinate with the White House in defining the rules of the trial, and Mitt Romney has characterized the president’s conduct for which he was impeached as “troubling in the extreme.” A secret ballot, though admittedly unlikely, may be enough for these cracks to cause Republican senators’ defense of Trump to collapse, leading to his potential removal from office. Few people predict that Trump will be removed from the White House before the 2020 election, but we live in an era in which unprecedented and unpredicted political events are borderline commonplace. 

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US Senators Clash Over Impeachment Trial Procedures

Right after the U.S. House of Representatives voted to impeach Donald Trump, Speaker of the House Nancy Pelosi surprised pundits everywhere by making a strategic move no one saw coming: instead of immediately deciding upon impeachment managers to send the articles of impeachment to the Senate, she decided to withhold the transmission of articles as leverage to coerce Senate Republicans to vote for what she considers to be a fair trial, which includes the calling of witnesses and the production of documents. Currently, Congress is in recess for the holidays, but negotiations surrounding the trial proceed nevertheless, even as lawmakers visit their families and constituents at their homes. 

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Senate Minority Leader Chuck Schumer has called upon four Republicans to vote in favor of allowing documents and witnesses during the trial, which Senate Majority Leader Mitch McConnell starkly opposes. As the procedures for the trial will be determined by 51 votes, and Schumer already has all 47 Democratic Senators onboard, only four Republicans would have to defy McConnell to ensure a trial with witnesses and documents. Given the fact that the president himself has said that he’d like to see witnesses during the trial, and almost 2 in 3 Republicans also want top Trump aides to testify at the Senate trial, Schumer and the Democrats hope that pressure from constituents will be enough to convince the necessary four Republican senators to side with Democrats on this matter.

Given the dramatic and historic nature of this impeachment, people around the world are paying very close attention to the U.S. Congress during these critical next few weeks, as the rules of the trial will have to be determined soon for it to begin early next year as intended. Accordingly, U.S. senators, who ultimately will shortly decide whether the president is fit to remain in office for the rest of his first term, are using the media to amplify their message either for or against a fair trial as they try to build their cases. Today, The New York Times published an opinion piece written by Patrick Leahy, a Democratic senator from Vermont, who wrote of the historic implications of the Senate’s upcoming decision, as this impeachment trial, no matter how it ends up proceeding, will set precedent for future impeachments and forever define Congress’s role in checking the misconduct of a duly elected president.

The actions the Senate takes over the next several weeks will at least in part outline the shape of future impeachments and more clearly define the nature of Congress’s power to check the executive branch.

In the piece, Leahy argues that the outcome of the upcoming trial will determine the validity of the Senate itself, and more broadly the importance of truth in our government. Leahy, who has served as a juror on six impeachment trials of five judges and one president, notes that senators must swear an oath to carry out “impartial justice according to the Constitution and laws,” and fears that the Senate will shortly abandon the idea of taking this oath seriously. This is because several Republican senators, including Mitch McConnell and Lindsey Graham, have already said they’ve made up their minds and that they don’t expect to act as fair jurors during the trial.

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Impeachment trials are wholly separate from other types of trials, as they are conducted in the Senate, which briefly operates as a court of law during the proceedings. The Senate has the sole responsibility of setting the rules of its trial, and as the Senate is characterized by the presence of partisan politicians who are unflinchingly loyal to the president, Democrats fear that the trial will end up being fundamentally corrupt. Already, McConnell, who will act as one of 100 jurors, has pledged that “there will be no difference between the president’s position and our position as to how to handle this,” creating a rare case of a trial in which the jurors collaborate with the defendant to ensure the outcome favored by the defendant. Presidential impeachments are rare in American history, and as such there exists little precedent for how they should be carried out; as such, the actions the Senate takes over the next several weeks will at least in part outline the shape of future impeachments and more clearly define the nature of Congress’s power to check the executive branch.