In a recent post, I suggested several potential amendments to the U.S Constitution, including an amendment to change the method used for handling the impeachment removal trials in the Senate to a secret ballot approach. While I won’t rehash those arguments here, I did want to expand on that with a quick thought exercise to illustrate why reform to the impeachment process is so important.
Basically, the question is: what would a President have to do in order to actually be both impeached and removed under the current process?
The Math
Under the current Constitutional process for impeaching judges or executive officers, the Impeachment is handled in the House by a simple majority vote on the Articles of Impeachment, but at the Senate trial, conviction and removal requires a vote of 2/3 of the Senate. In both cases, under the current process, the votes are almost always held on the record, where you know exactly how each member of Congress voted.
Which means that in order to convict and remove a President, they currently would need 67 Senators to vote against them. In my lifetime1, the largest majority a party has held in the Senate was 59-412 in the 111th Congress (2009-2011), but on average the majority party over that same time frame has only held a 53-47 lead.
So, if you imagine the easiest Senate Trial vote during that post 1980s timeframe, where the defending President was in the most extreme minority (i.e., with 41 senators of the President’s party against 59 senators in opposing parties), the majority party would still need to convince 20% of the President’s party’s Senators to vote against the President in an on-the-record recorded vote…
In the most extremely challenging case, trying to impeach the President of the most extreme majority party (i.e. 59 Senators aligned with the President’s party against 41 senators of the opposing parties), the minority party would need to convince almost 45% of the President’s Party’s senators to publicly vote to convict and remove the President.
So, basically, to actually remove a President, you need to convince somewhere between 20-45% of the senators from the President’s own party to publicly vote to sentence and remove the President…
What Would a President Need to Do to be Convictable?
Given those numbers, let’s go back to the thought experiment. With a public vote, how extreme of behavior do you currently think it would take for a President’s party to publicly vote to convict and remove them?
Imagine first the other party. Those unprincipled cretins. What would it take for 20-45% of their Senators to vote to convict and remove a president of their own party, on a recorded vote?
Then imagine your preferred party. Obviously much more principled than those other guys. But be honest with yourself, what do you think it would take for your party to turn on your own president bad enough for 20-45% of them to vote to convict and remove your own president from power?
Cold-blooded murder in public might actually be enough, so long as the victim was sympathetic, the murder was done in public, and there were no plausibly mitigating circumstances. Maybe3.
That’s about the only thing I think would have a solid chance. I doubt an affair or an accusation of sexual assault would be enough to be reliably convictable, other than in extreme cases. I doubt abusing power for personal gain by accepting or soliciting bribes, or insider trading of stocks or prediction markets would either4. Flagrantly violating the Constitution by say starting a war without Congressional approval, creating taxes without Congressional approval, etc. don’t seem to be anywhere near enough.
This is why I say that impeachment, as it currently stands under the Constitution is functionally useless as a check on executive power.
- I’m almost 46 years old, which is older than the current median age in the US of 39.4yrs old. ↩︎
- Technically the Democrats only held 57 seats, but they had two independents who regularly caucused with them. ↩︎
- I wish I had more confidence that this was a better than 50/50 probability. ↩︎
- I heard a joke recently that the best way Iran could tell if the US was about to restart hostilities is if there were any suspiciously large anonymous Polymarket bets on something related. The number of bets that look like insiders making millions on front-running administration announcements is truly impressive. And unlikely to result in any consequences. ↩︎