Former Senator Jeff Flake caused a minor stir earlier this fall when he stated that “at least 35” Republican senators would vote to remove President Donald Trump from office—if they could do so in secret. Those 35 votes would almost certainly put the total tally well above the two-thirds mark required for an impeachment conviction.
Despite this math, most observers assume that President Trump’s acquittal is “a foregone conclusion.” Congressional polarization is stronger than it has been in decades. The president remains popular among Republican voters. And prominent members of his party have already signaled that the impeachment will be “dead on arrival” in the Senate.
Flake’s statement, however, raises an interesting possibility: that the odds of removal depend on which ground rules the Senate employs. Public proceedings would expose any Republican senators who indicate a willingness to convict, or even a willingness to acknowledge the seriousness of the charges, to recriminations from the president and his supporters. Private proceedings, Flake implied, would embolden some of those senators to turn on Trump. This logic reflects former Representative John Dingell’s mantra that, in Congress, procedural choices can and do dictate outcomes.
Following Flake, several commentators have urged that the Senate vote on whether to remove Trump by secret ballot. Their position has so far failed to gain political traction in Congress. No senators or representatives have endorsed it.
Anything less than a fully open impeachment trial might seem antithetical to principles of good governance, more appropriate for a Kafka story than for a chamber that likes to imagine itself as “the world’s greatest deliberative body.” But the idea is both less radical and more defensible than it may seem at first glance. Senate tradition, comparative practice, and democratic theory all support the use of secrecy in at least some phases of an impeachment trial. These facts make Flake’s proposal worth reflecting on, even though—and indeed because—a secret vote seems inconceivable in the contemporary climate.
U.S. history provides ample precedents for secrecy in impeachment proceedings, if not in the final vote itself. Although the call of the roll was public, the Senate’s deliberations during President Andrew Johnson’s trial were private and unrecorded. After negotiations on the issue of transparency, the Senate likewise shut out spectators for multiple days of President Bill Clinton’s trial. Presiding over that trial, Chief Justice William Rehnquist acknowledged that “the consistent practice of the Senate for the last 130 years in impeachment trials [has been] to require deliberations and debate … to be held in closed session.”
The idea of a secret ballot takes that practice one step further. Again, there are strong legal precedents, but they come from outside the impeachment context. Other countries, including the United Kingdom, use secret ballots when their legislatures hold no-confidence votes, which can oust a prime minister. Closer to home, jurors in criminal and civil cases throughout the United States always deliberate and vote in secret. If they didn’t, the Supreme Court has warned, “[f]reedom of debate might be stifled” and “improper influence” could taint the verdict. These concerns ought to resonate with Republican senators, who are well aware that President Trump monitors their behaviors “very carefully.”
Ironically, operating outside of public view could make it easier for senators to act in accordance with public sentiment. An overwhelming majority of Americans, including well over half of Republicans, view it as inappropriate to “ask for assistance from a foreign government to help … win an election.” (“Bribing” a foreign government to help win an election would presumably poll even worse.) Yet many Republican officeholders fear the prospect of primary challengers from the right who will brook no criticism of the president or his actions. Closed sessions provide some insulation from these censorious forces. Insofar as it allows Republican senators to look beyond the most extreme elements of their primary electorates, secrecy can be consistent with “delegate” models of democracy, in which representatives are meant to be responsive to their entire constituencies, not merely factions thereof.
Secrecy could similarly make it easier for senators to act in accordance with their consciences. The Framers of the Bill of Rights rejected a proposal to allow voters to issue binding instructions to members of Congress. Senators, in particular, were meant to exercise independent judgment. Their ability to do so has dwindled in our age of hyper-polarization and nonstop news. By giving Republican senators room to relax their partisan personas and follow their own assessments of the evidence, secrecy can also be consistent with “trustee” models of democracy, which call for legislators to pursue their best understandings of the common good.
Many norms of congressional transparency are of quite recent vintage. Before the 1970s, for example, House members’ votes in the powerful Committee of the Whole were never recorded, while the absence of C-SPAN meant that most Americans could not observe legislators in action. Transparency has increased significantly since then, in Congress and across the regulatory agencies. The effects have been decidedly mixed, as study after study has shown that more open government does not necessarily mean better government. An American Political Science Association task force found in 2013 that “sunshine laws” have undermined negotiation, exacerbated gridlock, and enhanced special-interest influence in the Capitol. Transparency is best understood as a means to an end, not an end in itself, and the past several decades have taught us that its relationship to good governance is highly “contextual and contingent.”
Exactly when the Senate doors should be open or shut is therefore a difficult question. For all the reasons just given, the costs of the television cameras may well outweigh the benefits during segments of an impeachment trial. Senator Flake was on to something important.
And yet, there is undeniable value in letting the American people see as much as possible of the case for removal and the arguments in defense of a president facing impeachment. The analogy to a courtroom trial is imperfect. Ordinary jurors are supposed to function as more or less autonomous agents; senators, by contrast, should be accountable to their constituents. An impeachment trial is an inescapably political affair, as well as a major event in the life of the nation and a key vehicle for public discourse about acceptable conduct in office.
Any attempt to conceal the senators’ ultimate votes, moreover, would raise distinctive constitutional complications. The Framers were more suspicious of secret voting than of secret deliberations in Congress, so they wrote Article I’s “journal clause” to permit as few as 20 senators to demand a recording of “the Yeas and Nays … on any question.” Were the Senate to try to move forward with a private vote, a small minority could (and almost certainly would) invoke this clause to derail the effort.
The single biggest barrier to using a secret ballot, however, is not constitutional but cultural. Many commentators appear to find the idea not simply ill-advised but “unthinkable,” “profoundly un-American,” or worse. Republican criticism of the closed-door witness testimony taken by House investigators in October would pale in comparison to the uproar that would result if the Senate tried to hold a secret vote on whether to convict or acquit Trump. Even if secret ballots are used in other contexts and can be justified as a matter of political morality, they are beyond the pale in this instance as a matter of political reality.
The degree of disconnect here between democratic theory (potentially supportive of secret ballots) and democratic culture (fiercely resistant to them) is revealing. There is much to celebrate in the social and political transformations that have led so many Americans to insist so strongly on their “right to know.” But the fact that a suggestion like Flake’s has become unthinkable both reflects and reinforces a lack of trust in our elected representatives, such that anything done behind closed doors is seen as inherently illegitimate.
This is not a victory for good governance or collective self-rule. It is the triumph of an “ideology of transparency” that displaces other values and considerations. Under certain conditions, shielding legislators from real-time scrutiny may be the only way they can focus on what’s best for the country, the Constitution, and their full constituencies. A bit of secrecy, in other words, is sometimes just what democracy requires.
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.
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