With the House certain to vote to impeach President Donald Trump on Wednesday for inciting insurrection, there is increased attention on how quickly the Senate can and should hold a trial.
Democrats are offering conflicting messages about their priorities. Many, including Speaker Nancy Pelosi, have said it is “urgent” that Congress impeach Trump to hold him accountable for last week’s attack on the Capitol. But some Democrats hope to slow the process in the Senate, arguing that the chamber needs time to confirm President-elect Joe Biden’s national security nominees and to consider additional coronavirus relief legislation.
The party has yet to figure out how to balance those interests. The Senate is out of session until Jan. 19. Returning before then would take bipartisan cooperation. Absent bipartisan agreement, a Senate trial would not be held until sometime after Trump’s term ends.
Democrats are weighing procedural options, including holding the article of impeachment in the House until the Senate is ready to act. Pelosi, not wanting to get ahead of the House vote, on Tuesday declined to say when she planned to transmit the paperwork to the Senate.
“That is not something I will be discussing right now, as you can imagine,” the California Democrat told reporters. “We’ll take it one step at a time.”
The House impeachment vote Wednesday comes one week after a mob of Trump supporters attacked the Capitol following the president’s remarks urging them to “show strength” against lawmakers preparing to certify the Electoral College votes solidifying his loss in the 2020 presidential race. It also comes one week before Trump is scheduled to leave office and Biden is set to be sworn in during the Jan. 20 inaugural festivities.
The vote is on a single article of impeachment charging Trump with incitement of insurrection, traced to his repeated lies about the election being stolen from him that led his supporters to raid the Capitol last week. The measure would bar Trump from ever holding public office again if he is convicted.
With a majority of the Democrat-led House already having announced support for the impeachment article, including House Republican Conference Chairwoman Liz Cheney of Wyoming, it is all but guaranteed that Trump will become the first president in history to be impeached twice. The House previously impeached Trump for abuse of power and obstruction of Congress, but the Senate acquitted him of both charges.
A Senate conviction requires two-thirds support. The chamber will be knotted at 50-50 after Georgia’s two Democratic senators-elect are sworn in, but the party will hold the majority once Vice President-elect Kamala Harris is sworn in and can break ties.
A handful of Senate Republicans have said they’re open to considering the House’s impeachment charge, but most GOP lawmakers are dismissing impeachment as a waste of time given Trump has only seven days left in office. Republicans have also called impeachment a distraction from efforts to unify the country after the Capitol attacks.
But Trump has shown no remorse, as he declined Tuesday to take any responsibility for inciting his supporters who stormed the Capitol.
“They’ve analyzed my speech and words and my final paragraph, my final sentence, and everybody, to the T, thought it was totally appropriate,” he said, declining to identify “they” and “everybody” as he departed the White House for a trip to Texas to tout progress on construction of the border wall.
Biden, a leading voice in the calls for unity, has declined to endorse the effort to impeach Trump, saying it’s up to Congress.
The president-elect, however, wants to ensure that an impeachment trial does not interfere with his agenda. Biden told reporters Monday that he reached out to the Senate parliamentarian to determine if there could be a “bifurcated” schedule in which the Senate splits its time between the impeachment trial and other business but he hadn’t yet received an answer.
“Can we go a half day on dealing with the impeachment and a half day getting my people nominated and confirmed in the Senate, as well as moving on the [coronavirus relief] package?” he said. “So that is my hope and expectation.”
Senate Minority Leader Charles E. Schumer, meanwhile, is eying a long-shot maneuver to bring the chamber back into session early that does not require unanimous consent from all 100 senators. The New York Democrat is citing emergency powers that the Senate approved in 2004 authorizing the majority and minority leaders, “acting jointly,” when the Senate is out of session to modify the order dictating its next convening time “when, in their opinion, such action is warranted by intervening circumstances.”
Schumer said if Senate Majority Leader Mitch McConnell would agree, they could use the emergency reconvening power to call the Senate back into session before Jan. 19 to conduct the impeachment trial.
“We could come back ASAP and vote to convict Donald Trump and get him out of office now before any further damage is done,” he said Tuesday at a news conference in New York.
McConnell has not spoken publicly about the effort to impeach Trump, and his spokesmen have not responded to requests for comment on whether the Kentucky Republican would be willing to work with Schumer to bring the Senate back early.
Rules and precedents
Before Schumer’s suggestion, McConnell reportedly communicated to senators that an impeachment trial would not start before Jan. 20 or 21, based on the Senate’s impeachment rules and precedents.
“The trial in the Senate would take place after January the 20th. Leader McConnell has made that clear,” Sen. Benjamin L. Cardin, D-Md., said Monday on CNN.
Senate rules require any impeachment charge received from the House to take priority over any other pending business in the chamber.
Once the House appoints impeachment managers via a privileged resolution that communicates they are ready to prosecute their case, the Senate then must reach a unanimous consent agreement setting a time for the House managers to appear, which “in modern trials has been within a day or two of receipt of the House message,” according to a Congressional Research Service report released last year to prep for Trump’s previous impeachment trial.
The impeachment rules and precedents dictate that after the House managers present the article of impeachment, the Senate begin deliberations at 1 p.m. the next day, sitting as the court of impeachment. The court convenes at noon every day following, except Sundays, until the trial is concluded. The times can be changed but only with a unanimous consent agreement.
The rules also specify that the Senate cannot conduct legislative business when sitting as the court of impeachment.
“This might mean that the Senate chooses to spend some period of a day meeting in legislative or executive session and also spend a period meeting as Court of Impeachment, in order to provide an opportunity for other actions to occur,” the CRS report said. “For some legislative actions, unanimous consent may effectively be required.”
This seems to provide an opening for the bifurcated process Biden has suggested, if there is bipartisan cooperation.
Schumer sent a “Dear Colleague” letter to his caucus Tuesday outlining their agenda for the 117th Congress that did not mention the impeachment trial.
Instead, the Democratic leader talked about confirming Biden’s nominees, saying national security Cabinet positions should be filled “on Day One” and key economic nominees confirmed “ASAP.” He also said as soon as the Senate is organized, Democrats would get to work on another coronavirus relief package that would be the “first order of legislative business.”
Exactly where the impeachment trial fits in is unclear, but Schumer has suggested the Senate will find a way to juggle everything.
“We’re going to have to do several things at once, but we got to move the agenda as well,” he told The Buffalo News on Sunday.
Holding the article
The procedural option that Democrats are most in control of is when the House sends its impeachment article over to the Senate.
After the House voted to impeach Trump in December 2019, Pelosi held on to the two articles for weeks as the parties negotiated terms for how the Senate trial would be conducted. Democrats had wanted Republicans to agree in advance to call witnesses at the trial, but the GOP declined.
While Pelosi has declined to reveal when she’ll transmit the latest impeachment article to the Senate, other Democrats have offered their opinions.
“Let’s give President-elect Biden the 100 days he needs to get his agenda off and running. And maybe we will send the articles sometime after that,” Clyburn said on CNN’s “State of the Union” on Sunday.
Sen. Joe Manchin III doesn’t understand the House rush to impeach Trump, given that “the votes aren’t there” to convict him in the Senate.
“I think this is so ill-advised for Joe Biden to be coming in, trying to heal the country, trying to be the president of all the people, when we’re going to be so divided and fighting again,” the West Virginia Democrat told Fox News on Monday. “There’s no rush to do this impeachment now. We can do it later if they think it’s necessary.”
While Manchin made his preference clear, most Senate Democrats are being careful with their rhetoric so as not to rule any options in or out.
“There has to be accountability,” Wisconsin Sen. Tammy Baldwin said Tuesday on MSNBC. “However, I am mindful of the need to make sure that Joe Biden is able to quickly set up a government ... to respond to the crises and struggles that American people are facing right now with the pandemic and the ensuing economic fallout. And we’ve got to do all of the above.”