By most everyone’s judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn’t have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?
A secret impeachment ballot might sound crazy, but it’s actually quite possible. In fact, it would take only three senators to allow for that possibility.
Senate Majority Leader Mitch McConnell has said he will immediately move to hold a trial to adjudicate the articles of impeachment if and when the Senate receives them from the House of Representatives. Article I, Section 3, of the Constitution does not set many parameters for the trial, except to say that “the Chief Justice shall preside,” and “no Person shall be convicted without the Concurrence of two thirds of the Members present.” That means the Senate has sole authority to draft its own rules for the impeachment trial, without judicial or executive branch oversight.
During the last impeachment of a president, Bill Clinton, the rules were hammered out by Democrats and Republicans in a collaborative process, as then Senate leaders Trent Lott and Tom Daschle recently pointed out in a Washington Post op-ed. The rules passed unanimously. That’s unlikely this time, given the polarization that now defines our politics. McConnell and his fellow Republicans are much more likely to dictate the rules with little input from Democrats.
But, according to current Senate procedure, McConnell will still need a simple majority—51 of the 53 Senate Republicans—to support any resolution outlining rules governing the trial. That means that if only three Republican senators were to break from the caucus, they could block any rule they didn’t like. (Vice President Mike Pence can’t break ties in impeachment matters.) Those three senators, in turn, could demand a secret ballot and condition their approval of the rest of the rules on getting one.
Some might say transparency in congressional deliberations and votes is inviolable, and it’s true that none of the previous Senate impeachments have been conducted via secret ballot. But the Senate’s role in an impeachment is analogous to a U.S. jury, where secret ballots are often used. When Electoral College gridlock has resulted in the House picking the president—the House elected Thomas Jefferson in 1800 and John Quincy Adams in 1824—that vote has been secret. And, of course, when citizens vote for president, they do so in private.
Trump and those around him seem confident that he won’t lose the 20 Republican senators needed to block a guilty verdict. But it’s not hard to imagine three senators supporting a secret ballot. Five sitting Republican senators have already announced their retirements; four of those are in their mid-70s or older and will never run for office again. They might well be willing to demand secrecy in order to give cover to their colleagues who would like to convict Trump but are afraid to do so because of politics in their home districts. There are also 10 Republican senators who aren’t up for reelection until 2024 and who might figure Trumpism will be irrelevant by then. Senators Mitt Romney and Lisa Murkowski have been the most vocal Republicans in expressing concerns about Trump’s behavior toward Ukraine. Other GOP senators have recently softened in their defense of him, as well—all before the House has held any public hearings.
There’s already been some public speculation that, should the Senate choose to proceed with a secret ballot, Trump would be found guilty. GOP strategist Mike Murphy said recently that a sitting Republican senator had told him 30 of his colleagues would vote to convict Trump if the ballot were secret. Former Senator Jeff Flake topped that, saying he thought 35 Republican senators would vote that way.
While it’s unlikely Trump would support a secret ballot, it’s possible he might actually benefit from one in the long run. If a secret ballot is agreed on and Trump knows the prospect of impeachment is near, he could then focus his energies on his post-presidency. Once he leaves office, Trump faces multiple possible criminal investigations, at the federal, state and local level. He almost certainly knows that a President Pence could pardon him only for federal crimes. To avoid the prospect of serving time, Trump could negotiate a collective settlement—just as the Sackler family has done in the OxyContin matter—with all the jurisdictions now running independent investigations into his activities. Trump’s impeachment, followed by a quick resignation, might appease Manhattan District Attorney Cyrus Vance’s and New York Attorney General Letitia James’s thirst for justice, making them more likely to agree to a deal.
Even McConnell might privately welcome the prospect of a secret ballot. He has always been intently focused on maintaining his Republican majority in the Senate. Trump’s approval numbers continue to languish, and support for impeachment has been rising. McConnell himself, facing reelection next year, has an approval rating of just 18 percent in Kentucky, not to mention that the Republican governor there just suffered a stunning upset in last week’s election. All of which suggests McConnell might warm to the possibility that he and his caucus could avoid a public up-or-down vote in defense of behavior by the president that’s looking increasingly indefensible.
A secret ballot might get Trump out of office sooner than everyone expects: The sooner any three Republican senators make clear that they will support nothing short of a secret ballot, the sooner Trump realizes his best course could be to cut a deal, trading his office for a get-out-of-jail-free card—a clean slate from prosecutors—just as Vice President Spiro Agnew did. And if Trump were to leave office before the end of the year, there might even be enough time for Republicans to have a vibrant primary fight, resulting in a principled Republican as the nominee.
Article originally published on POLITICO Magazine