Donald Trump should be convicted unanimously by secret ballot

The Senate trial to determine whether former President Trump should be convicted of the House impeachment alleging that the former president incited insurrection is imminent. It is not a hard question whether you supported Trump’s reelection (as I did for his support of life issues) or opposed it (also as I did for his bellicosity and divisive nature). That may seem contradictory, but it is not. Not only does it mirror the ambivalence of millions of voters, but it also reminds us that impeachment is not a popularity contest; it is a check upon the abuse of power. Pundits sometimes contend that impeachment is a political, not juridical, proceeding. That mischaracterization should be resisted or the line between law and politics becomes hopelessly confused.   

No, the Senate impeachment trial is not about our personal electoral preferences; nor is the trial a relitigation of Trump’s inability to convince courts or his fellow citizens that the election was fraudulent or so infected with “irregularity” as to vitiate its outcome as “fair and free.”

There is no material disagreement between the House impeachment managers and Trump’s defense lawyers about the facts of the violent uprising in Washington on Jan. 6. The pleadings reveal the former president speaking to a patently agitated mob on the morning of the 6th. Neither side contests that Trump urged the audience to set upon the Capitol. The former president said he would be with them, and while he did not keep his promise, many who swarmed into the Capitol proclaimed that they were there upon Trump’s invitation — an invitation that resulted in the deaths of a police officer and several members of the public, widespread additional injuries and assaults that disrupted congressional proceedings mandated by the Constitution, and the destruction and theft of public property.  

As jurors, it is the Senate’s duty to determine if the former president could foresee these tragic consequences. If so foreseeable, the uncontested facts establish as a matter of law an insurrection — a violent uprising challenging the government’s authority. 

Since Trump has neither fact nor law on his side, he attempts to take shelter in the Constitution, arguing weakly that his speech is protected by the First Amendment or that an impeachment trial cannot be brought against a former officer. There is no precedential support for either proposition. Falsely yelling “fire” in a crowded theater is without protection, as is presidential provocation where lawlessness is imminent. With impeachment, the Framers provided for the republic to have a means of protection against a sitting president (ousting him) or a former one (keeping him from occupying office in the future). It would not be rational to think the Founders we so greatly revere would have protected us from one but not the other.  

Yet, despite Trump having neither law nor fact nor common sense on his side, it is largely predicted that conviction in the Senate will lack the requisite two-thirds vote. When Trump faced the earlier impeachment, I urged that the Senate have the benefit of a secret ballot like almost all jurors have in non-impeachment matters and that all of us enjoy in primary and general elections. The wisdom of a secret ballot is even greater because of the Jan. 6 riot, the continuing threat of violence against members of Congress, and in state capitals around the country. 

The Senate rules regarding the conduct of an impeachment trial, including ballot secrecy, require a simple majority (though a two-thirds majority is required for conviction). Yes, a provision (Art. I, sec. 5) authorizes either chamber in general lawmaking to make public the “yeas and nays” if one-fifth of those present so desire. This provision, however, is subordinate to the specific constitutional provisions on impeachment, including that the “sole power to try impeachments” belongs to the Senate. 

The Supreme Court has made plain that it will not second-guess the rules and procedures the Senate adopts, absent an egregious disregard of due process — which a secret ballot aimed at facilitating the ability of the Senate jurors to follow their conscience free of intimidation clearly is not. 

What’s more, the general lawmaking provision allowing for the yeas and nays to be specified upon request of one-fifth of the senators present explicitly excepts where “Judgment require(s) Secrecy.” This exception is the constitutional basis for hundreds of closed committee sessions, especially those related to personnel and national security matters. 

It may seem odd to advocate a secret ballot. Does it not imply cowardice and unaccountability? In the mid-1950s, when still in the Senate, John Kennedy in his book, “Profiles in Courage,” praised those who acted openly and courageously against their own political or personal interests to strengthen the nation. Not everyone can meet the standards of heroes, however. Sometimes courage arises out of mutual support. Benjamin Franklin said that we either hang together or we will surely hang separately. Franklin is also well known for his answer to an inquiring Philadelphian that the convention created a “republic if (we) can keep it.” But that happy challenge is possible largely because those who designed our unique republic in the Constitutional Convention of 1787 did so in closed session. The Continental Congress did not open its proceedings until 1794. 

Impeachment and secrecy are likewise historically linked. Seven secret sessions were held during the impeachment trial of former President Clinton. The Senate also closed its doors during the impeachment trial of federal judges in 1933 and 1936 and on six occasions in the 1980s.   

It may be contended that even if the vote is secretly taken re Donald John Trump v. The United States House of Representatives that the information will inevitably leak. Perhaps. The effect of such improper disclosure can be avoided, of course, if the vote to convict is unanimous, or even taken by voice vote.

Impossible to conceive? Franklin’s promise of a democratic republic was, after all, contingent. Every generation is liable for the continued fulfillment of that contingency.

Douglas Kmiec is professor emeritus of constitutional law at Pepperdine University School of Law and founder of the Notre Dame Journal of Law, Ethics and Public Policy. He served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel during the Reagan and George H.W. Bush administrations. Follow him on Twitter @dougkmiec.