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Legal Experts Rubbish ‘Quite Bad,’ ‘Very Poor’ Idea of Secret Impeachment Trial Vote in U.S. Senate: ‘Democracy Is About Transparency’


As the U.S. Senate slowly prepares for the impeachment tribunal of former President Donald Trump, it seems fan fiction is beginning to circulate about the potential for how things might turn out in terms of a verdict were reality actually scripted by someone like Aaron Sorkin.

Liberal pundit and former labor secretary Robert Reich offered one such idea that attained a decided amount of popularity and virality on social media early last week.

“February vote in Senate on whether to convict Trump should be a secret ballot in order to (1) protect safety of senators, and (2) allow them to vote their consciences,” he tweeted, “Same protections as jurors in most trials. Senate Dems could do this with 51 votes.”

A unanimous panel of legal experts surveyed by Law&Crime,  however, were quick to throw out the Berkeley public policy professor’s “secret ballot” suggestion with the papers and the trash.

Vice Dean for Faculty and Academic Affairs and Professor of Law at the University of Southern California Gould School of Law Franita Tolson binned the idea on a purely practical level.

“The Senate has the sole power to try impeachment, and this authority includes choosing the rules by which the impeachment occurs,” she noted in an email.

In theory, of course, Reich is correct.

The Senate could easily change the rules to allow for a secret ballot if the Democratic Party held together and voted on a party line with Vice President Kamala Harris breaking the tie in their favor. But that’s not really the issue here, every legal expert explained.

“That being said, there would still need to be 17 Republican senators who vote to convict Trump, even in a secret impeachment,” Tolson continued. “The likelihood that their identity will not be leaked to the media or put on social media is close to zero. It’s hard for two people to keep a secret, much less 100.”

Aside from considerations of just how secret such a proposal would be in real terms, many legal experts were aghast at the suggestion that something akin to justice–or an attempt to get justice–could play out under the cover of darkness from the public.

“Love Robert Reich. But I hate this idea,” said Brandeis School of Law Professor and University of Louisville Visiting Professor of Law Eugene D. Mazo. “Senators are elected by the people, and so their deliberations should be public. Democracy is about transparency.”

Frank Bowman is the Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri and an expert on the impeachment of U.S. presidents and others.

In an interview with Law&Crime, he noted that this particular flight of fancy is nothing new and basically never going to happen.

“It’s been proposed many times–including the last time,” Bowman said. “As much as I’d like to see Trump impeached, convicted and disqualified, I think a secret ballot is counter to the idea of impeachment.”

Multiple legal experts also made clear that impeachment in the Senate is not actually a legal trial that relies on the same content as criminal trials–even though doing things in the form of a trial might call to mind certain legal standards.

“It’s a decidedly political judgment where members of the legislative branch reach public conclusions about the fitness of a president or other federal officer,” Bowman said. “The constraints on it are themselves political. That is to say, people ought to know how their elected representatives voted.”

Likening an impeachment tribunal to a criminal trial–and the concomitant suggestion that both sets of people trying such cases are or should be treated the same or similar–was specifically called out as inappropriate.

“A criminal defendant has the right to poll a jury at the end of a criminal case, when the verdict is announced, requiring each member to publicly affirm their vote,” Florida State University College of Law Michael Morley told Law&Crime.

“A jury is not comprised of publicly elected officials, so its deliberations should be private,” Mazo added. “Also, a jury tries criminals and puts people in jail. There is a reason for the deliberations to be private. But impeachment is not a criminal trial. It is a public affair called for by the Constitution that provides a vehicle for Congress to hold our country’s chief executive accountable for his actions.”

Key to such an important—and potentially earth-shattering—guilt or innocence determination is that sunlight be maintained throughout.

“In any event, allowing Senators to keep votes on important issues secret — including in a removal or disqualification trial — is contrary not only to longstanding congressional practice, but basic norms of democratic accountability and informed public oversight of governmental functioning,” Morley said.

Ultimately, the long term damage caused by such a set of secret procedures on the basic implements and functions of the U.S. system means the proposal is little more than a bridge back to the past, legal experts cautioned.

“That strikes me as a very poor idea,” University of Buffalo School of Law Professor James Gardner told Law&Crime. “Impeachment of a president is the quintessential public act. I don’t think even a secret vote would be acceptable under the circumstances, much less an entirely secret proceeding, like some kind of Star Chamber prosecution.”

As far as fear of Trump and his supporters might be motivating some Republican senators, well, that’s the price they’ll have to pay for being part of the same party.

“Voting against this president by Republicans is tantamount to political suicide and may involve some risk of physical harm,” Bowman conceded, but said that this state of affairs simply wasn’t enough to justify a wholesale departure from transparent proceedings. “I don’t think this is at all consistent with how impeachments are designed and what they are for.”

“I actually think it would be quite bad, in general, to allow elected representatives to reach these decisions in secret without having some kind of accountability,” he continued. “There’s no other vote legislators can take in secret–nor should there be.”

[image via Drew Angerer/Getty Images]

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