WASHINGTON - Dec. 20, 2019 - Now that Pelosi has recognized that she has the unquestioned power to delay - indefinitely if necessary - the trial of President Trump by refusing to transmit the House's articles of impeachment to the Senate, and that she plans to use it to insure "fairness," she might want to consider using that tactic to force the Senate to adopt a rule providing for a vote by secret ballot, suggests public interest law professor John Banzhaf.
After all, she could argue, a trial can hardly be fair when so many Republican senators apparently fear voting against the President because of concerns about political retribution from the president and/or Senate Majority Leader Mitch McConnell.
Although open and recorded voting in Congress is customary, even in impeachment trials, the Senate in voting on Trump will be acting like a jury where votes are taken in secret.
Also, when the Electoral College deadlocked in the past, House votes to elect Thomas Jefferson in 1800, and John Quincy Adams in 1824, were conducted by secret ballot to permit representatives to vote free from political pressure.
Moreover, the Constitution expressly provides that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment REQUIRE SECRECY," [emphasis added].
So, a rule providing for a secret ballot would clearly be constitutional, and have congressional precedent.
Moreover, many if not most Republican senators might not oppose a vote by secret ballot since it would permit them to vote their consciences without fear of political consequences. If that were to happen, many Republicans might join with Democratic colleagues to vote to remove the president from office.
That's why some senators and pundits have predicted that, if voting for removal were to be held by a secret ballot, some 25 or more Republican senators would probably join with Democratic senators in voting to remove Trump from office.
Moreover, if voting by a secret ballot were to be announced, there is further speculation that Trump, able to read the handwriting of his removal on the wall, might simply choose to resign to avoid further damage to his reputation, perhaps offering some arguably plausible excuse or reason.
Some have even gone further, speculating that under those circumstances where removal is likely, Trump would agree to resign the presidency, but only if his resignation were conditioned upon a deal where he would be shielded from various possible state criminal prosecutions now in the investigatory stage, and also from federal criminal charges.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
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