Senate Secrecy: Can the Votes of Senators on President Trump’s Impeachment be Withheld from the Voting Public?

Posted in: Constitutional Law

Some commentators have floated that idea that it would be permissible and advisable for the Senate sitting in the matter of President Trump’s impeachment to adopt a rule of private (that is, unreported to the public) voting on the question of whether the President ought to be convicted of the articles of impeachment adopted by the House. Part of the commentary may have been prompted by reports that former Senator Jeff Flake (R) said that “at least 35” GOP senators would vote to remove President Trump if the vote were private. Whether such a prediction is remotely accurate is hard to know, although it strikes us as unrealistically high given that conviction and removal of President Trump with a large number of Republican votes might be construed as an admission by the party—in an election year—that its steadfast support of him up until this point has been illegitimate.

But even if Mr. Flake’s numerical assessment were correct, and even if a private vote might reflect the conscience of the Senate more than a public one, does the Constitution allow the Senate to withhold from the people the votes of each individual senator? Let us start with the text, which provides that the Senate “shall keep a Journal of its Proceedings, and from time publish the same, excepting such Parts as may in their Judgment require Secrecy.” So far, so good—the Senate can decide for itself to keep certain proceedings nonpublic. But Article I goes on to say: “and the Yeas and Nays of the Members of [the Senate] on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” Some commentators apparently have read that provision to mean that one-fifth of the Senate can compel that individual votes of the senators be made public on any particular matter. But that is not what the text says. It provides only that one-fifth of the Senate can require that individual votes be recorded in the Journal, not that the Journal—with the recorded votes—be made public. That question is governed by the first part of this section of Article I, quoted above, that says the Senate (which means a majority thereof) can “in their Judgment” keep whatever “Parts” of the Journal they think “require Secrecy” from public view. So unless the Senate over the years has embraced a different interpretation of Article I’s seemingly straightforward words (for example that “entered on” would have been understood by any observer in 1787 as “publicly available in”), we read the text of the Constitution as not necessarily foreclosing secrecy.

But the narrow text of particular provisions is not the only source of bigger constitutional meaning. Structural principles, often reflected in consistent practices by the branches of government, are relevant too. And here, as far as we are aware, there is no precedent or tradition of keeping the ultimate votes by senators when sitting in impeachment shielded from public view, even if certain preliminary impeachment processes prior to the ultimate vote are conducted in private. One rejoinder might be that the sample size for presidential impeachment trials is too small (i.e., just two—the cases of Presidents Andrew Johnson and Bill Clinton) to draw any meaningful inferences. But we believe that all 15 or so Senate impeachment trials (mostly for federal judges) should count significantly, because secrecy of each senator’s vote in presidential impeachment is more problematic (as we explain momentarily) than for judicial impeachment. So if the history suggests (and we don’t purport to have canvassed all of it thoroughly right now) that the Senate has treated final votes for impeached federal judges as public matters, then a fortiori (that is, with even greater force) the same should be true as to Senate votes on presidential impeachment.

We say a fortiori because impeachment was given to the Congress—rather than any other body—to promote accountability. Not just accountability for the impeached officers, but accountability for those who would judge them. Removing a duly nominated and confirmed federal judge is a big deal, but removing a President elected by scores of millions of American voters is a much bigger deal. (The Constitution sends this signal of gravity by requiring that the Chief Justice—our nation’s highest judicial officer—preside over presidential impeachment trials even though he doesn’t preside over any other impeachment trial.) And if the Constitution lodges conviction and removal power in the Senate because it is an elected, politically accountable body, then making public the information as to how senators voted is essential. This is especially true after the move from legislative to direct Senate election that culminated in the adoption of the Seventeenth Amendment around the turn of the twentieth century. If the Constitution guarantees that the people of each state can be trusted to choose senators, how can the people not be trusted to evaluate senators’ actions on perhaps the most important matter ever to come before a Congress?

One set of precedents that we don’t think counts for much involves the presidential elections of 1800 and 1824, when, commentators have pointed out, the House of Representatives picked the President—because no candidate had garnered a majority of the electoral college—apparently using votes that were not made public. The secrecy here is interesting, but not particularly applicable to impeachment situations, for many reasons. First, under Article I’s terms for House selection of the President, the vote in the House “shall be taken by states [not by individual House members], the representation of each state having one vote.” Relatedly, each state’s one vote can be cast simply by having “a member” of that state present; the state’s entire House contingent need not be in the chamber. Third, and importantly, the House is supposed to do its choosing of a President “by ballot.” The term “ballot” generally refers to a secret vote. (Webster’s first two definitions of “ballot” are “a small ball used in secret voting” and “a sheet of paper used to cast a secret vote.”) Throughout history, one reason for requiring secrecy has been the prevention of bribery and coercion, since no bribe/threat can be effective unless the briber/threat-maker can know how the other actor subsequently behaved. Perhaps the framers were particularly worried about corruption or undue influence in the special case where no candidate was able to win in the electoral college.

On top of this, changes in presidential election practice that have made it more populist might help distinguish modern presidential contests from those in 1800 and 1824. In the early nineteenth century, the people of the United States themselves were not thought to have a significant role in presidential selection, so withholding the votes of individual House members from the people back then would have been much less problematic. Today, given that the same voters who pick House members also pick presidential collegians in all the states, perhaps if the House selected a President the individual votes of each member of every state’s House delegation would be made public.

So precedential and structural considerations do not lend much support to secrecy in the impeachment-trial-vote setting, and indeed tend to undermine it.

We close by pointing out that maintaining secrecy might in any event be difficult logistically, even if secrecy were consistent with constitutional values here (which we question). First, even if a majority of senators today decides to keep secret the Yeas and Nays on President Trump’s impeachment trial, there is no barrier to a subsequent Senate making those votes public in the future (assuming the votes were recorded in the Journal, which, as noted above, requires insistence by only 20 or fewer senators). And so any senators who feel freer to “vote their conscience” because of the secrecy of their vote cannot count on that secrecy being maintained in the intermediate future.

Indeed, even in the short run, secrecy may be hard to maintain. Let’s imagine the ballots are not made public and President Trump is convicted. All the senators who voted to acquit could, if they want, publicly proclaim that they voted in President Trump’s favor, do so under penalty of perjury, submit to a lie detector if anyone asks them to, etc. That would generate a very strong inference that those folks who do not make such public pronouncements of having voted in President Trump’s favor were in fact people who voted to convict. Thus, again, senators looking to be protected by secrecy could not easily rely on such protections.

Interestingly, perhaps the best argument those who want secrecy could make is that it would be good if the vote were kept secret from President Trump (who might exact retribution) but not from the voters of each state. If that were possible, it might be more consistent with the spirit of the Seventeenth Amendment, which sought to reduce the clout political party bosses exercised in favor of more populist decisionmaking. Freeing senators from party-leader retribution would be nice, but there is simply no way to do that without freeing senators from accountability to the people of the states (who themselves may prefer to be as intensely partisan as their leaders are in today’s moment), which is the whole point of popular election of senators.