20

I know it would take a 2/3rds majority vote in the Senate to convict Donald Trump in his second impeachment trial. But what if a substantial number of Senators boycotted the trial, and declined to vote at all? Would it just take 2/3rds of the actual voting Sentators to convict? Or is it the absolute number of yes votes that makes the difference?

Would it change things at all if the Senator was present, and voted "present" instead of casting a vote one way or another for conviction?

Rick Smith
  • 35,501
  • 5
  • 100
  • 160
Chris Sunami
  • 837
  • 5
  • 13

1 Answers1

27

The precise wording in the Constitution (with emphasis added) is:

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

This means that a Senator who is in the Chamber who does not vote, effectively votes not to convict.

However, if a Senator is not present, this may reflect the 2/3 requirement. If one Senator is absent, then it reduces the number of votes required to convict from 67 to 66.

Joe C
  • 27,928
  • 3
  • 78
  • 117
  • 13
    +1 I recently read an article suggesting this would be an way for GOP senators to avoid voting to convict Trump while allowing him to be convicted. – JimmyJames Feb 10 '21 at 22:17
  • 2
    I would say that not being present is a vote to convict, because it lowers the threshold of how many votes are needed to convict, thereby making it easier for everyone else. – Bobson Feb 10 '21 at 23:24
  • The final vote will be a one-by-one tally. When the Parliamentarian calls a Senator's name, that Senator must vote to convict or not. But what if the Senator is present and remains mum? Who knows? I would suspect that if the response isn't reasonably quick that that would imply "not present". – David Hammen Feb 11 '21 at 04:56
  • 1
    @DavidHammen: If I recall correctly, Senators are called for their votes alphabetically. Any who do not answer on their turn may be called again after the entire list has been run, but in any case a Senator may cast his vote up until the vote is closed, which the speaker may do at discretion after a mandatory 15 minute wait. Senators who are present may choose to abstain, in which case they are counted towards establishing quorum but not towards the total vote count. – Ted Wrigley Feb 11 '21 at 06:18
  • 9
    @Bobson it's 2/3 of a vote to convict: say it's 66/99 to convict. 3 go missing, it's now 64/96, so those 3 were effectively casting 2 votes. – obscurans Feb 11 '21 at 08:09
  • So if 26 to 33 Republicans stay at home, the 50 democrat votes alone would be a two thirds majority, but if 34 Republicans stay at home, then there are not enough people present and no vote. Interesting. – gnasher729 Feb 11 '21 at 12:51
  • 4
    @gnasher729 The entire GOP caucus would have to be absent in order to dip below quorum. – Joe C Feb 11 '21 at 12:55
  • @Bobson it's weaker than a vote to convict though. Assuming a 50/49 split with one abstention, the abstainer has changed the vote %ge from 50% to ~50.5%, whereas if they voted to convict it'd have increased by just less than twice that to 51%. The significance gets greater as more people abstain, but it will still always be less than a genuine vote to convict. Politically of course it also leaves room for plausible deniability and face-saving – Tristan Feb 11 '21 at 14:09
  • 1
    @gnasher729 And then a democrat would have to suggest the absence of a quorum, which there would be little reason to do. If a GOP member stayed behind to do so, there would be a quorum (unless any Dems were missing, I suppose). – Azor Ahai -him- Feb 11 '21 at 16:57
  • 1
    Re This means that a Senator who is in the Chamber who does not vote, effectively votes not to convict. I disagree. A Senator who does not vote in effect votes 2/3 for conviction and 1/3 for acquittal. For every three Senators who do not vote one way or another, the number of Senators needed for conviction by two. – David Hammen Feb 11 '21 at 20:43
  • 1
    @DavidHammen: You have missed the important difference between "absent" and "present without voting". The latter are still included when calculating "2/3rds of the members present" – Ben Voigt Feb 11 '21 at 22:52