The potential for another Trump impeachment trial is threatening to upend quick action in the Senate on President-elect Joe Biden's Cabinet picks and legislative agenda.
House Democrats appear poised to impeach President Trump for a second time on Wednesday, setting the stage for a Senate trial that’s unlikely to start before Biden is sworn in on Jan. 20.
The effort is throwing a curveball into Biden’s plan to “hit the ground running” — with the party poised to control the White House and Congress for the first time since 2010 — and forcing Democrats to scramble to find ways to keep the administration’s first 100 days on track.
Biden, speaking to reporters, said his aides were in talks with the Senate parliamentarian staff about whether it would be possible to divide the Senate’s day between confirmation votes for nominees and taking up legislation and holding an impeachment trial.
“Can we go half day on dealing with impeachment, and half day getting my people nominated and confirmed in the Senate as well as moving on the package?” Biden asked. “I haven’t gotten an answer from the parliamentarian yet.”
Absent a larger agreement among Senate leadership, the trial would start at noon each day, but with no proceedings on Sundays. That would limit the amount of time for lawmakers to tackle other items on the to-do list for Biden’s first 100 days.
Senate Minority Leader Charles Schumer (D-N.Y.) indicated he wants to find a way to juggle both, saying “we got to move the agenda as well.”
"We'd like to do it in the first few months," Schumer told the Buffalo News about the need for coronavirus and infrastructure legislation. "Of course, we have to get the nominees in place, and we hope our Republican friends, at such a crucial time, won't hold up these nominees."
But Schumer will need cooperation from Republicans, most of whom aren’t defending Trump in the wake of last week’s Capitol riots but also aren’t publicly supportive of voting to convict him even after he leaves office. The Senate did not take up any legislation or nominations amid Trump’s impeachment trial last year, which lasted just under three weeks with no witnesses called.
Though Sen. Ben Sasse (R-Neb.) has said he is open to considering articles of impeachment, and Sens. Lisa Murkowski (R-Alaska) and Pat Toomey (R-Pa.) have called on Trump to resign, no GOP senator has pledged to vote for convicting Trump as part of a Senate trial.
The looming collision between an impeachment trial and Biden’s agenda comes as House Democrats appear ready to impeach Trump on Wednesday, which will make him the first president to go through the process twice.
The article of impeachment, drafted by Democratic Reps. David Cicilline (R.I.), Ted Lieu (Calif.) and Jamie Raskin (Md.), states that Trump engaged in high crimes and misdemeanors by “willfully inciting violence against the Government of the United States.”
The House vote will come a week after Trump, in a speech outside the White House, falsely claimed that he had won the election and urged thousands of his supporters to march to the Capitol and back his GOP allies, using words like “you have to show strength” and “if you don’t fight like hell, you’re not going to have a country anymore.”
If the House votes to impeach Trump on Wednesday, Democratic leadership indicated they are undecided on when they would send the article to the Senate, in an apparent acknowledgement of how a trial could hamper the early days of the Biden administration.
Majority Leader Steny Hoyer (D-Md.) indicated that his preference was to send the article of impeachment immediately to the Senate.
“Whether impeachment can pass the United States Senate is not the issue,” he told reporters on Monday.
But Rep. James Clyburn (S.C.), the No. 3 House Democrat, floated the possibility that the House could delay transmission of the article to the Senate to give Biden’s administration time to get off the ground amid a frayed, strained Washington.
“Let's give President-elect Biden the 100 days he needs to get his agenda off and running,” Clyburn added. “And maybe we will send the articles some time after that.”
Rep. Tim Ryan (D-Ohio) aligned himself with Clyburn, saying that absent a surge in GOP support for impeachment, an alternative would be to “have a period of time where we allow Joe BIden to begin his administration, especially around the vaccine and distribution, testing and the economy and be able to move swiftly in the first 100 days.”
“Then the Senate can deal with the impeachment,” he added.
The potential that a Trump impeachment trial could overshadow his first few weeks in office comes as Biden was only facing headaches in the Senate. Lloyd Austin, Biden’s pick to lead the Pentagon, is the only top official who has a confirmation hearing scheduled — one day before Inauguration Day.
And though Democrats will control a slim 50-50 majority, because Vice President Harris can break a tie, they’ll still need GOP support to pass most legislation because of the 60-vote legislative filibuster.
Underscoring the concern, Schumer is exploring whether leadership can bring the Senate back earlier under authority given to the two top Senate leaders in a 2004 resolution to be used during times of emergency. The effort would require Senate Majority Leader Mitch McConnell’s (R-Ky.) sign off but would allow the Senate to move up the timing of a trial.
McConnell has been mum on impeachment or other efforts to remove Trump from office, namely the 25th Amendment. Spokespeople didn’t immediately respond to a question about whether he would support Schumer’s effort for an early return.
But under a memo circulated by McConnell, a trial in the Senate would be unlikely to start before Biden is sworn in, marking the first time the impeachment trial of a president would take place after they have left office.
Senate impeachment rules require that at 1 p.m. on the day after the managers exhibit the articles, the Senate “must proceed to their consideration,” the memo states.
The Senate is out of session, beyond brief pro forma sessions, until Jan. 19. If the Senate wanted to start the trial early, they would need consent from every member, something that Trump’s conservative allies would be unlikely to provide.
As a result, the Senate trial would not begin until one hour after Biden takes the oath of office on Jan. 20.
“The Senate trial would therefore begin after President Trump’s term has expired – either one hour after its expiration on Jan. 20, or twenty-five hours after its expiration on Jan. 21,” the memo states.
Though many Senate Democrats have thrown their support behind impeaching Trump several including Sen. Kyrsten Sinema (D-Ariz.) haven’t yet weighed in. And Sen. Joe Manchin (D-W.Va.) — who, like Sinema, occupies the caucus’s centrist wing — called the House impeachment plan “ill-advised.”
"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 are going to be so divided and fighting again. Let the judicial system do its job," Manchin told Fox News.
Manchin argued that there is not the two-thirds vote needed to convict Trump in the Senate and “we’ve been trying to send that message over” to the House.
Sen. Chris Coons (D-Del.), one of Biden’s closest allies who has good ties with GOP senators, said he would vote to convict Trump if the House impeaches but pointed to the 25th Amendment or Trump voluntarily resigning as his first pick.
“I understand the concerns that just as President Biden takes over responsibility for leading our nation through this tragic pandemic that we might be distracted by weeks in the Senate by a Senate trial,” Coons told CBS News. “That's why I have called for President Trump to do the right thing finally and resign.”