Wake Up To Politics - January 25, 2021

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How the second Trump impeachment trial will work

The historic second impeachment trial of former President Donald Trump will be underway soon. Here are answers to some questions you might be asking about how the proceedings will work:

When will this thing start? It has been 12 days since the House impeached Trump for his role in provoking the January 6 assault on the U.S. Capitol — but, as in 2019, House Speaker Nancy Pelosi (D-CA) has opted to wait before transmitting the article of impeachment to the Senate. That wait will end today, when the House impeachment managers march to the other side of the Capitol and formally read the article aloud.

From there, all 100 senators will be sworn in as jurors on Tuesday, and then both the House prosecutors and Trump’s defense attorneys will have until February 8 to submit their pre-trial briefs. Arguments will begin on February 9. The prolonged pre-trial process was negotiated by Senate Majority Leader Chuck Schumer (D-NY) and Senate Minority Leader Mitch McConnell (R-KY), who had demanded Trump’s side be given time to prepare after the speedy House process.

President Joe Biden also endorsed the delay in kicking off the trial, expressing hope that it would give the Senate time to confirm his Cabinet nominees and work on his legislative agenda.

How long will the trial last? Trump’s first impeachment trial took 21 days. The previous two presidential impeachment trials, for Andrew Johnson and Bill Clinton, took even longer: 83 days and 37 days, respectively. But senators on both sides are anxious to move on from the Trump era and expect that this trial will go even faster than his last one; per Politico, a quick three-day trial is even being discussed by some senators. The speed will partly depend on whether or not the Senate votes to allow each side to call witnesses, which is still being debated privately among lawmakers.

Can the Senate do other things while the trial is going on? Maybe, but don’t bet on it. Biden and Schumer want the Senate to work on Cabinet nominations and the president’s Covid relief package concurrently during the trial: “We can get all three done, and we will,” Schumer tweeted on Friday. That would require a setup known as “bifurcation,” where the Senate meets early to consider nominations or legislation before convening at 1 p.m. to start each day’s trial proceedings (as the chamber’s rules require).

But there is some debate about whether Schumer can push through such a plan: It’s likely that taking up other business would require unanimous consent, as Sen. John Cornyn (R-TX) argued on Twitter. No other Senate business was conducted during the Clinton trial in 1999 or Trump’s first trial in 2020, a precedent that is likely to be followed during Trump’s second trial as well.

Who are the key players to watch? The most visible players will be the attorneys for both sides. Trump had some difficulty finding a lead defense attorney to represent him in the trial, after lawyers who represented him in the past (such as Rudy Giuliani, Pat Cipollone, and Jay Sekulow) declined the role. But he settled on Butch Bowers, a South Carolina lawyer who was recommended by Sen. Lindsey Graham (R-SC). It is unknown who else will be on the defense team led by Bowers.

The role of the prosecution will be played by the nine House managers, who were appointed by Pelosi. The lead manager is Rep. Jamie Raskin (D-MD), a former constitutional law professor who also lost his son to suicide less than a month ago. One manager who has sparked particular controversy is Rep. Eric Swalwell (D-CA), who was tied to an alleged Chinese spy shortly before his appointment.

Behind the scenes, the most influential player will clearly be McConnell, who likely holds Trump’s fate in his hands. According to CNN, he has privately indicated he believes Trump committed an impeachable offense and wants him “gone”; if he does vote to convict, it could be the key factor in bringing along other Republicans to make the jump.

Who will be presiding? No one knows! Article I, Section 3, Clause 6 of the Constitution states that “when the President of the United States is tried, the Chief Justice shall preside.” But it’s unclear if that applies to former presidents as well, so Chief Justice John Roberts might be spared a second turn presiding over a Trump trial.

In impeachment trials for other federal officials, the Vice President — in their role as the President of the Senate — or the Senate President pro tempore would generally preside, so Kamala Harris or Sen. Patrick Leahy (D-VT) could end up overseeing the trial. Or another judge could be brought in to preside. As of this writing, the question of who might preside over the upcoming trial remains unanswered.

Wait, is this even constitutional? No former president has ever been put to trial in the Senate before. In fact, there has only ever been one impeachment trial involving a former official: The 1876 trial of William Belknap, who served as Secretary of War under President Ulysses S. Grant. Belknap resigned hours before being impeached by the House, but the chamber went through with charging him; a trial was then held for the former secretary, who was acquitted.

This general lack of precedent has led to claims by some Republicans that the trial is unconstitutional. A bipartisan group of legal scholars, including the co-founder of the conservative Federalist Society, pushed back against this argument in a joint letter last week. “Despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents,” they wrote. This stance was also explained by University of Texas law professor Stephen Vladeck in a New York Times op-ed; a rebuttal can be found from former Judge J. Michael Luttig, who penned a Washington Post op-ed arguing that the Senate lacks the constitutional authority to hold a post-presidential trial.

Regardless, most experts agree that it is ultimately up to the Senate to decide if the trial will take place: both the courts and the Constitution have given wide latitude to Congress to dictate how impeachments work. And there is no indication as of now that the chamber won’t move forward with at least an abbreviated trial. “The preponderance of the legal opinion is that an impeachment trial after someone has left office is constitutional,” Sen. Mitt Romney (R-UT) argued in a CNN interview on Sunday.

So, could Trump actually be convicted? It’s possible, but the Constitution sets a pretty high bar. If all 100 senators participate in the trial, two-thirds (or 67) would be needed to convict Trump — meaning 17 Republicans would have to join all 50 Democrats. It would be the first time that the Senate has convicted a president (sitting or former).

Most observers are closely eyeing five Republicans who are possible votes to convict: Sens. Romney, Susan Collins (R-ME), Lisa Murkowski (R-AK), Ben Sasse (R-NE), and Pat Toomey (R-PA). McConnell has been under intense pressure (even from some Republicans) to vote for conviction, but even with his support, it’s difficult to see who the remaining 11 votes would be.

Besides Romney, the Republicans who appeared on the Sunday shows this weekend didn’t sound like a group who were about to vote for Trump’s conviction. “The trial is stupid,” Sen. Marco Rubio (R-FL) said on “Fox News Sunday.” With Trump out of office, it’s a “moot point,” Sen. Mike Rounds (R-SD) said on NBC’s “Meet the Press.” Without senators like those on board, counting to 67 becomes an almost impossible task.

And what is this I hear about him possibly being barred from future office? The possible punishments in an impeachment trial can be found in Article I, Section 3, Clause 7 of the Constitution: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” it says.

There have been three federal judges who were disqualified for future office after being convicted by the Senate in an impeachment trial. The chamber has held that disqualification must come after conviction, but it only requires a majority vote — less than the two-thirds threshold needing to convict. Democrats would almost certainly push for such a punishment in the (not incredibly likely) event that enough Republicans do back conviction.

Some Democrats have also pushed for another route that they say could block Trump from holding office again, without requiring a conviction. They have pointed to Section 3 of the Fourteenth Amendment, which allows Congress to prohibit someone from holding office by majority vote if they “have engaged in insurrection or rebellion against the [nation], or given aid or comfort to the enemies thereof.” But the amendment has not been invoked since 1919 and it would likely lead to a protracted legal battle challenging the power in the courts.

Do you still have a question about the impeachment process? Send me an email (including your name and where you’re from) and I’ll try to answer it in a future newsletter.

The Rundown

TRUMP ADMINISTRATION: In his final weeks in office, former President Donald Trump considered replacing his Attorney General with an official willing to wield the Justice Department’s power “to force Georgia state lawmakers to overturn its presidential election results,” the New York Times reported. He dropped the plan after DOJ officials threatened to resign en masse if he moved forward with it.

• According to the Wall Street Journal, Trump also wanted the Justice Department to sue battleground states directly in order to force a case to come before the Supreme Court. The lawsuit plan didn’t go anywhere either.
• More information is also emerging about Trump’s response to coronavirus. Dr. Anthony Fauci gave an interview to the New York Times describing his experience working under the old administration; Dr. Deborah Birx, Trump’s Covid-19 task force coordinator, also dished on the response in a wide-ranging CBS News interview.

FUTURE OF THE GOP: Trump continues to hang over the divided Republican Party as officials sort through their next chapter. According to the Washington Post, Trump is plotting primary challenges against Republicans who crossed him while he was in the White House and has even threatened to form his own “Patriot Party” to challenge the GOP.

• Republicans who have been critical of Trump are not finding it much easier to operate in the party after his presidency: the 10 House Republicans who voted to impeach him are already facing primary challenges, efforts to oust Rep. Liz Cheney (R-WY) as the No. 3 House Republican are growing, and the Arizona GOP censured three of its own on Saturday — including the state’s Republican governor, simply for certifying the 2020 electoral count.

THE BIDEN AGENDA: Biden aides held a Zoom call with a bipartisan group of 16 senators on Sunday, the first major legislative outreach over the president’s proposed $1.9 trillion Covid relief package. According to Politico, there was broad support in the group for vaccine distribution funding, but many senators pushed back against provisions (including $1,400 direct payments) that would give aid to Americans who they say don’t need it.

• Despite Biden’s hopes of crafting a bipartisan package, Republicans have expressed concerns about the legislation; even moderates such as Susan Collins or Mitt Romney have balked at the high price tag.
• If Democrats can’t cobble together ten Republicans to create a filibuster-proof majority, they may need to go through the budget reconciliation process, which would allow the bill to pass with only a simple majority. Sen. Bernie Sanders (I-VT), the incoming Budget Committee chairman, is publicly and privately urging Biden to ditch the GOP and go through reconciliation.
• Biden’s agenda is being further held up by the inability of the Senate to agree on an organizing resolution. Until the resolution is passed, Democrats can’t claim their committee gavels or full control of the chamber; Mitch McConnell is holding up the resolution until he receives a promise from Chuck Schumer that Democrats won’t eliminate the legislative filibuster. Schumer isn’t folding. The resolution itself can be filibustered, so the Senate is in limbo until the two leaders hash out an agreement.

2022 CENTRAL: Former White House press secretary Sarah Huckabee Sanders announced a bid for Arkansas governor this morning. “As governor, I will defend your right to be free of socialism and tyranny,” Sanders said in a launch video. “Our state needs a leader with the courage to do what’s right, not what’s politically correct or convenient.”

• Sanders, whose father also served as the state’s governor, is the first Trump alum to run for office since his administration ended.

Daybook

All times Eastern.

President Joe Biden will receive the President’s Daily Brief at 9:30 a.m. in the Oval Office. At 11:30 a.m., he will meet with Secretary of Defense Lloyd Austin and Gen. Mark Milley, the chairman of the Joint Chiefs of Staff. After the meeting, Biden is expected to repeal former President Donald Trump’s ban on transgender Americans serving in the military.

At 3:45 p.m., Biden will deliver remarks on “strengthening American manufacturing” and sign an executive order implementing his “Buy American” plan in the South Court Auditorium of the Eisenhower Executive Office Building.

Vice President Kamala Harris will join President Biden for the President’s Daily Brief, his meeting with Secretary Austin and Gen. Milley, and his remarks on manufacturing. In addition, she will administer the ceremonial oath of office to Secretary Austin at 12:30 p.m. in the Roosevelt Room. Austin, who was confirmed 93-2 on Friday, is the first Black American to lead the Penatgon.

First Lady Jill Biden will deliver virtual remarks at the American Library Association’s 2021 Midwinter Meeting at 11:15 a.m., participate in a virtual conversation with governors’ spouses at 1 p.m., and participate in a virtual “charla” (or chat) with young Latinos at 2:15 p.m.

White House Press Secretary Jen Psaki will hold a press briefing at 1 p.m.

The Senate will convene at 3 p.m. Following Leader remarks, the chamber will begin consideration of the nomination of former Federal Reserve chair Janet Yellen to be Secretary of the Treasury. After debate on the nomination (with time equally divided between the two parties), the Senate will vote at 5:30 p.m. on Yellen’s confirmation. She is expected to receive broad support from both sides of the aisle.

The House will meet at 1:30 p.m. in a pro forma session.

The House impeachment managers, the House Clerk, and the acting House Sergeant at Arms will lead a procession ceremony at 6:55 p.m., marching together through National Statuary Hall and the Capitol Rotunda to the Senate chamber to formally present the article of impeachment to the Secretary of the Senate.

At around 7 p.m., Rep. Jamie Raskin (D-MD), the lead impeachment manager, will read H.Res.24, the article of impeachment, and H.Res.40, the resolution appointing the managers, to the Senate to formally kick off the pre-trial process.

The Supreme Court justices will release orders from their Friday conference at 9:30 a.m. and new opinions at 10 a.m.

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