How Pelosi Might Remove Trump By Secret Ballot

Nancy PelosiDoD photo by U.S. Air Force Staff Sgt. Marianique Santos [Public domain], via Wikimedia Commons

How Pelosi Might Remove Trump By Secret Ballot; Faced With Removal Handwriting on the Wall, Trump Might Follow Nixon and Agnew

WASHINGTON, D.C. (December 20, 2019) –   Now that House Speaker Nancy Pelosi has recognized that she has the unquestioned power to delay – indefinitely if necessary – the trial of President Donald 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, who has pledged that he will be fully cooperating and coordinating with the respondent/defendant Trump on trial.

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 to help insure impartiality and fairness.

Secret ballot senate trial?

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 also have some 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 their 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.

Indeed, GOP strategist Mike Murphy recounted that a sitting Republican senator had confirmed that 30 of his colleagues would vote to convict Trump if voting were by secret ballot, and former Senator Jeff Flake went even further, predicting that 35 of his former Republican senators would join with Democrats to remove Trump from office.

The result, of course, would not be a reversal of the 2016 election as some have suggested, because it would not lead to Hillary Clinton becoming president.

Pence as President

Instead, Mike Pence, a staunch and more traditional Republican – whom many in the party reportedly would much prefer to Trump – would take over as president, and arguably would be better able to lead the party to more electoral victories than Trump could have accomplished.

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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.

Here history reminds us that former-president Richard Nixon received a full pardon when he stepped down to avoid impeachment, and that former-vice-president Spiro T. Agnew insisted upon a plea deal to induce him to resign his vice presidency, says Banzhaf, who later helped to successfully sue Agnew for the return of money he received in bribes.

Banzhaf notes that Pelosi has stood up to Trump several times in the past, using her considerable political power to get her way.

If she does so here, in arguably the most important thing she can do with her office, it is at least plausible that Trump will leave office soon, either by a secret-ballot vote in the Senate, or by his forced resignation when faced with a secret ballot, suggests Banzhaf.

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About the Author

JOHN F. BANZHAF
John F. Banzhaf is an American public interest lawyer, legal activist and law professor at George Washington University Law School. He is the founder of an antismoking advocacy group, Action on Smoking and Health.

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