Could The U.S. Senate Use Secret Ballots To Remove Trump From Office?

There has been much debate recently over the likelihood of the Senate taking up an impeachment trial to convict President Donald Trump for soliciting help from foreign governments to benefit personally or politically. According to some Constitutional experts, one strategy that could lead to Trump’s removal from office would involve senators using secret ballots.

The Constitution clearly states that the Senate can convict a president that has been impeached by the House as long as at least two-thirds of the former chamber’s members (67) are present for the vote. However, it does not specify what types of processes senators are or aren’t allowed to use to vote to remove the president from office for any type of wrongdoing. Thus, many legal pundits agree that the Senate has the power to hold a vote by secret ballot and that this is the most realistic way to remove Trump from office by allowing Republicans to vote for removal without facing the ire of Trump voters. Former GOP Jeff Flake said recently that a majority of Republican senators would vote for removal if the ballot was secret. The Senate would act like a jury in this case. The Constitution notes that in federal jury cases, votes must be held in secret, because the Founding Fathers wanted to ensure lawmakers would have a way to vote according to their true beliefs without fear for their personal or professional safety. The use of secret ballots would be a first in American history, as no president has been impeached and removed from office using this process. Bill Clinton and Andrew Johnson were both impeached but not removed from office.

If this process was carried out, a simple majority (51 votes) would be the minimum required to turn Trump into a private citizen, instead of a two-thirds majority that would need to include at least 20 of the current 53 Republican Senators. Given many GOP Senators’ seemingly unwavering support of the president, the two-thirds majority impeachment process in the chamber seems increasingly unlikely to lead to Trump being forced out of the White House.

Last month, Mike Murphy — a former senior adviser to John McCain and Mitt Romney — claimed in an interview with MSNBC’s Andrea Mitchell that a GOP Senator told him 30 Republican Senators would be in favor of impeaching Trump if the vote was held via secret ballot. Former Sen. Jeff Flake (R-Arizona) responded by saying the figure would likely be even higher.

“That’s not true. There would be at least 35,” Flake said at the Texas Tribune Festival.

#JeffFlake has said “at least 35 Republican senators would vote for President Donald Trump to be removed from office if they could vote in private.” Maybe hold a tentative secret ballot first to test Flake’s thesis, then a final public vote for purposes of ensuring accountability

— Laurence Tribe (@tribelaw) October 2, 2019

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