Senate impeachment trial arguments to start February 9

House Democrats plan to send the article of impeachment against former President Donald Trump to the Senate on Monday, but the start of arguments in the Senate’s impeachment trial won’t begin until February 9, giving the Senate time to confirm President Joe Biden’s Cabinet.

Under an agreement between Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell that Schumer announced Friday evening, the Senate would take up the ceremonial functions of the trial Tuesday, the day after the articles are transmitted to the Senate. Then the House and Trump’s legal team would have two weeks to submit pre-trial briefs, with the trial itself beginning on February 9.

A delay to the impeachment trial makes sense for Democrats because the trial threatens to stall the confirmation of Biden’s Cabinet, as Senate Republicans said Friday they would not allow the Senate to confirm nominees at the same time the trial is going on. The trial’s timing one of several logistical hurdles the Senate is tackling amid broader negotiations between Schumer and McConnell over how the 50-50 Senate will be governed.

McConnell proposed Thursday pushing the trial back until mid-February, a week later than the agreement.

The length of the trial is still an open question and will depend both on whether the House impeachment managers seek to call witnesses and the length of senators’ questions for the legal teams. But sources say most believe the trial will be shorter than the three-week 2020 impeachment trial for Trump.

McConnell had proposed beginning the ceremonial functions next week but allowing two weeks for pre-trial briefs to be filed by the House and Trump’s lawyers. Trump had yet to assemble a legal team following the House’s impeachment for “incitement of insurrection” last week, though he hired a South Carolina lawyer to represent him Thursday.

Pelosi confirmed in a statement Friday that the article would be sent to the Senate on Monday.

“We are respectful of the Senate’s constitutional power over the trial and always attentive to the fairness of the process, noting that the former president will have had the same amount of time to prepare for trial as our Managers,” she said. “Our Managers are ready to begin to make their case to 100 Senate jurors through the trial process.”

The announcement effectively sets a deadline for the Senate leaders to reach an agreement on both the impeachment logistics as well as the broader negotiation over the Senate’s power-sharing agreement that remains stalled over a fight about the filibuster.

Schumer said Friday that McConnell’s insistence the Senate’s organizing resolution include a provision protecting the filibuster was “unacceptable — and it won’t be accepted.”

But pushing forward with the trial against GOP wishes also threatens to stall the confirmation of Biden’s Cabinet nominees.

“We won’t be doing any confirmations, we won’t be doing any Covid-19 relief, we won’t be doing anything else other than impeaching a person who’s not even president,” said Sen. John Cornyn of Texas, a member of Senate GOP leadership.

Cornyn said Republicans haven’t given consent to bifurcate the trial days to take up nominations during the trial. “No, it’s not gonna happen,” he said.

In order to convict Trump, Democrats need a two-thirds majority, meaning at least 17 Republicans would have to vote to convict Trump, assuming that all 50 Democrats do. Ten House Republicans joined with Democrats to impeach him last week.

Alaska Sen. Lisa Murkowski, considered a swing GOP vote, said Friday that the process “has to be fair.”

“My thought process is to see what happens as this unfolds,” she said. “You know, we learned this morning that Speaker Pelosi is going to transmit the article on Monday. As I understand, right now, there hasn’t been an agreed-to schedule on the pre-trial. I think what McConnell laid down was eminently reasonable, in terms of making sure that we got process. Got to have process and the process has to be fair. So yeah, so we’ve got to get started, I guess.”

The new White House has publicly taken a hands-off approach to the impeachment process, but the President and his advisers have made clear this week to Democratic congressional leaders that they see little upside to delaying or extending a trial that is already complicating Biden’s first 100 days in office. The current view inside the White House is that Trump stands little chance of being convicted.

Biden has never had a strong appetite for impeaching Trump, advisers say, but he also has little desire for allowing the Senate trial to drag out any longer than necessary.

“We need to move past this,” a Biden official told CNN. “The only way for that to happen is for the trial to begin.”

‘It will be a full trial’

If the Senate begins the trial next week, it will have to pass a resolution to set the rules. Schumer’s goal is to do so on a bipartisan basis, but the Democratic sources say it can be adopted with a majority of senators.

A faction of Senate Republicans has argued that the impeachment trial would be unconstitutional because Trump has already left office. It’s an argument that Sen. Lindsey Graham, a South Carolina Republican, has suggested Trump’s legal team should adopt.

“I think it’s obvious that the post-presidential impeachment has never occurred in the history of the country for a reason, that it’s unconstitutional, that it sets a bad precedent for the presidency and it continues to divide the nation,” Graham said Friday.

But Schumer pushed back on that argument, noting that both liberal and conservative legal scholars have said there is precedent for an impeachment trial of a former official.

“The Senate will conduct a trial of the impeachment of Donald Trump,” Schumer said. “It will be a full trial. It will be a fair trial. But make no mistake, there will be a trial, and when that trial ends, senators will have to decide if they believe Donald John Trump incited the insurrection against the United States.”

McConnell said Friday that the Senate should give Trump a “full and fair process” to mount his impeachment defense.

“This impeachment began with an unprecedentedly fast and minimal process over in the House. The sequel cannot be an insufficient Senate process that denies former President Trump his due process or damages the Senate or the presidency itself,” McConnell said. “Senate Republicans strongly believe we need a full and fair process where the former president can mount a defense and the Senate can properly consider the factual, legal, and constitutional questions at stake.”

This story has been updated with additional developments Friday.