The Constitution requires that a conviction in the Senate after impeachment in the House requires that "no Person shall be convicted without the Concurrence of two thirds of the Members present". Article 1, section 3, clause 6. But it does not spell out how this "Concurrence" is to be obtained.
The Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, revised pursuant to Senate Resolution 479 passed on August 18, 1986 and still in effect, states that "the Presiding Officer shall first state the question; thereafter each Senator, as his name is called, shall rise in his place and answer: guilty or not guilty."
Former Senator Jeff Flake stated, prior to his retirement, that if the roll call in the Senate was done in secret and not in full public view, 35 of the 53 Republican Senators would vote "guilty".
Former Senator Jeff Flake stated, prior to his retirement, that if the roll call in the Senate was done in secret and not in full public view, 35 of the 53 Republican Senators would vote "guilty", and Trumputin would be convicted and removed from office. Can this be done at this point in the impeachment trial?
Electing a New Pope
In the nearly 2000 years that the Catholic Church has chosen Popes to lead the now over a billion Catholics, procedures have evolved to be used to choose a new Pope. The College of Cardinals are convened by the Cardinal Camerlengo (Chamberlain), and all Cardinals are required to attend, unless over 80 and infirmed. The Cardinal Camerlengo and three Cardinal Assistants (chosen by lot and changed by lot every three days) are responsible for maintaining the election's secrecy.
The Sistine Chapel is sealed after each Cardinal takes an oath to observe the procedure set down by the apostolic constitutions: to defend the liberty of the Holy See; to maintain secrecy; and to disregard secular authority on voting. All but the Cardinals are expelled, with the exclamation "Extra omnes!" [Latin for "All (of you) get out!" and the doors are closed. After that, any Cardinal who leaves for reasons other than using the lavatory or illness may not return. Servant staff can enter only for housekeeping and serving of meals; all are committed to total secrecy. No electronic communications are permitted, and the Sistine Chapel beforehand is swept for "bugs" and Wi-Fi access is blocked in Vatican City and wireless signal jammers are deployed.
Ballots are simple cards, folded once, with the words "I elect as Supreme Pontiff……….." printed on them. The ballot process is called a "scrutiny". Each Cardinal takes the completed ballot to the altar and takes an oath: "I call as my witness Christ the Lord, who will be my judge that my vote is given to the one who, before God, I think should be elected." The Cardinal then folds his vote, and drops it in the ballot box, in the company of the "Scrutineers", the three Cardinals observing the process.
Once all votes have been cast, the first Scrutineer shakes the container, and the last Scrutineer removes and counts the ballots. If the number of ballots does not correspond to the number of Cardinal electors present, the ballots are burned, unread, and the vote is repeated. If there are no irregularities, the ballots may be opened and the votes counted. Each ballot is unfolded by the first Scrutineer; all three Scrutineers write down the name on the ballot. The last Scrutineer reads the name aloud. The Scrutineers add up all the votes, and the three Revisers (Cardinals also picked earlier by lot) check the ballots and the names on the Scrutineers' lists to ensure no error was made. The ballots are then all burned by the Scrutiners. A two-thirds vote is needed to elect the new Pope.
The Senate Impeachment Trial Procedures
These Papal procedures have been adopted and revised as needed over the past 1,000 years or so. Surely the U.S. Senators can adopt a similar procedure. As it stands now, all the world knows how each Senator voted, and after the vote, if the President is acquitted, any Republican Senators who voted to convict will be blacklisted and almost certainly "primaried". The fear of this result could well cause many Senators not to vote their true beliefs.
Is it too late to change this now, with the final impeachment vote in the Senate due to happen in the next two weeks? The Senators in fact can do anything they want, regarding the Rules, as long as there is a vote that results in the "concurrence" of two-thirds of the Senators present to convict. Why can't each Senator be given a plain piece of paper that states: Regarding Article I, do you vote "Guilty" or "Not Guilty"?, with the Senator to circle the vote selected? Then the same thing would be done for Article II.
"Concurrence"means "an agreement or union in action". It is clear that the word meant in 1787 exactly what it does now: an agreement of two- thirds of the Senators present to convict.
Each Senator would then come to the front of the Senate chamber and drop his or her vote on each article, folded, into a ballot box, after which the Senate Clerk would present a record that each Senator has voted. The ballots would then be counted by the Presiding Officer, the Chief Justice, assisted by the Clerk. The Chief Justice would then announce whether not the President has been convicted or acquitted of either or both Articles of Impeachment.
Alexander Hamilton in Federalist No. 65 stated that no other institution except the Senate would be sufficiently dignified or independent to handle the impeachment proceedings. The British Parliament and the state constitutions provided several models for legislative impeachments. In England, impeachments were instituted by the House of Commons and tried by the House of Lords. Senators were originally appointed by their state legislators, but later were elected by their state's voters, as were the House Representatives in their state districts. Is there really now any difference?
Do your job, Senators. Decide to vote in secret, not by taking your career (or life) in your hands by standing up in the Senate and announcing to the world that you vote to convict or acquit President Trumputin. The world does not have to know, except that a two thirds majority of the Senate votes to convict him - or not.