Senate Republicans, still terrified of Trump, make up constitutional arguments to protect him

Posted on by Joan McCarter

On Monday evening the House will transmit to the Senate the article of impeachment to prevent Donald Trump from ever being in a position to destroy democracy again. Senate leaders have reached an agreement to begin the hearings on February 8. Most Republicans there are not so sure that inciting a violent insurrection against the very body in which they sit is such an impeachable thing. Not that they want to argue about Trump, because they actually did live through that terror that left five people dead, but they need a straw to cling to to avoid dealing with him. And his supporters. So they've made up a new thing: it's unconstitutional to impeach him.

Never mind that there is precedent for impeaching a former federal officer, and that the weight of scholarship on the issue supports it, even though the Framers did not make it explicit in the document itself. Probably because they couldn't possibly envision a Senate so thoroughly corrupted they'd be on the side of Trump. So you have the likes of Arkansas Republican Sen. Tom Cotton, who opines "The Senate lacks constitutional authority to conduct impeachment proceedings against a former president. […] The Founders designed the impeachment process as a way to remove officeholders from public office—not an inquest against private citizens." He's presuming to speak for the Founders, who spoke for themselves, and that's not what they said.

For example, President John Quincy Adams: When the House was debating its authority to impeach Daniel Webster after the fact for conduct while he was secretary of state, Adams said "I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office." The reality is, the Framers left this ambiguous, but they also left the Senate the power to do what they need to do. One, at least, foresaw what could be coming someday.

Here's Alexander Hamilton: "When a man unprincipled in private life[,] desperate in his fortune, bold in his temper […] despotic in his ordinary demeanor—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the non sense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may 'ride the storm and direct the whirlwind.'" There's one Framer who would surely want Trump cut off from any possibility of future office.

Of course, not all Republicans are making this bad faith argument. Others are trying to play the "unity" card. Like Florida Sen. Marco Rubio who got bogged down on Fox News, of all places, arguing that the impeachment is "stupid" even though Trump "bears responsibility for some of what happened." Which part he doesn't make clear. Maybe the five dead people? The one senator who voted to convict Trump last time around (that whole extorting Ukraine to get dirt on Joe Biden to throw the election for Trump—there's a theme developing here) says there's no question he should be impeached. "I believe that what is being alleged and what we saw, which is incitement to insurrection, is an impeachable offense," Sen. Mitt Romney said Sunday. "If not, what is?"

Meanwhile, the trial doesn't start for another two weeks, and the evidence against Trump just keeps increasing, from his machinations in the Justice Department to try to overthrow Georgia's election to his campaign's orchestration of the rally that Trump whipped up into an insurrection. Five people were killed in the insurrection, a cop died by suicide in the aftermath, and 139 U.S. Capitol and D.C. police were assaulted and/or injured in the attack. That evidence, and more, will be presented to the Senate and the American people, along with hours of video of the attack. Republicans might think now that they can make vague arguments about the Constitution, but in the face of the horror inflicted on the nation, their arguments are going to prove pathetic at best, treasonous at worst.

Pelosi confirms House will send impeachment article to Senate on Monday, updates members on security

Posted on by Joan McCarter

House Speaker Nancy Pelosi confirmed a dear colleague letter to Democrats that the House will send the article of impeachment of Donald Trump to the Senate on Monday, a "momentous and solemn day, as the House sadly transmits the Article of Impeachment."

"Our Constitution and country are well-served by our outstanding impeachment managers – lead manager Rep. Jamie Raskin and Reps. Diana DeGette, David Cicilline, Joaquin Castro, Eric Swalwell, Ted Lieu, Stacey Plaskett, Madeleine Dean, and Joe Neguse," she wrote. She also low-key slammed Senate Minority Leader Mitch McConnell, who had tried to dictate the timing of the impeachment by telling Pelosi to wait until the last half of February to start the process. "The House has been respectful of the Senate’s constitutional power over the trial and always attentive to the fairness of the process," she wrote. "When the Article of Impeachment is transmitted to the Senate, the former President will have had nearly two weeks since we passed the Article."

Friday, Jan 22, 2021 · 11:27:01 PM +00:00 · Joan McCarter

BREAKING: Senate Majority Leader Chuck Schumer says former President Trump's impeachment trial will start the week of Feb. 8. https://t.co/FKAryO7Sum

— The Associated Press (@AP) January 22, 2021

Pelosi also informed her colleagues about security at the Capitol, informing them that "General Russel Honoré is preparing his assessment of the security of the campus, and we expect to have updates soon." She also reminded them that when they return, they'll vote on a rule change to impose fines on any member trying to bypass the metal detectors to get to the House chamber. The issue escalated this week when Rep. Andy Harris, a Maryland Republican, tried to bring a concealed gun onto the House floor, which is a violation of House rules. A number of Republicans have blown off the detectors and disrespected Capitol Police trying to enforce the new protocols.

"It is sad that this step is necessary," Pelosi wrote of the fines, "but the disrespectful and dangerous refusal of some Republican Members to adhere to basic safety precautions for our Congressional Community—including our Capitol Police—is unacceptable." Any House member will face a $5,000 fine if they refuse to cooperate with the screening. If they do it again, they'll pay a $10,000 fine. That money will be withheld from their paychecks—they can't use campaign funds or their expense accounts to pay them. The precedent for this new rule is the mask rule passed last week, which fines members not wearing masks on the floor—$500 on a first offense and $2,500 for a second offense.

Pelosi ends her missive on a hopeful note. "I am confident that, strengthened by the new Biden-Harris Administration and Senate Democratic Majority, we can restore healing, unity and optimism to our nation, so that—as Joe Biden quotes Seamus Heaney—'The longed for tidal wave of justice can rise up, and hope and history can rhyme.'"

Starting Monday, Republican senators will have to face the fact that Trump tried to get them killed

Posted on by Joan McCarter

Senate Majority Leader Chuck Schumer announced Friday morning that the impeachment of Donald Trump in the Senate is imminent. "I have spoken to Speaker Pelosi who informed me that the articles will be delivered to the Senate on Monday," and promised "It will be a full trial, it will be a fair trial." That's a rebuff to Minority Leader Mitch McConnell who attempted to dictate the schedule to House Speaker Nancy Pelosi and Schumer in a proposal released late Thursday. McConnell argued that Trump needed time to plan a defense and that "At this time of strong political passions, Senate Republicans believe it is absolutely imperative that we do not allow a half-baked process to short-circuit the due process that former President Trump deserves or damage the Senate or the presidency."

A reminder: Trump sent a mob to the Capitol to hunt leadership, including former Vice President Mike Pence, down and kill them. Which is what the House impeachment managers intend to keep at the forefront. A Democratic source told Washington Post's Greg Sargent that their presentation will include "a lot of video of the assault on the Capitol … to dramatize the former president’s incitement role in a way that even GOP senators cannot avoid grappling with." Maybe that will keep them awake during the proceeding.

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"If they‘re going to vote against it, they're going to vote against it knowing what actually happened," the aide told Sargent. "A lot of senators" were "very upset angry about what happened,” the aide continued, saying the managers' goal is to "remind them of why." Among those needing the reminder is Trump's caddy, Sen. Lindsey Graham. Remember Graham on January 6, in the aftermath of the attack when the Senate reconvened. He said the effort to challenge the Electoral College vote was "the most offensive concept in the world." He said that he and Trump had been on "a hell of a journey. I hate it to end this way. Oh, my god, I hate it." He said Trump's attempt to challenge the result in Congress was "not going to do any good." That's Graham, essentially admitting that Trump set the insurrection in motion.

Here's what Graham said just two weeks later. "For the party to move forward, we got to move the party with Donald Trump." So much for the end of the journey. "There’s no way to be a successful Republican Party without having President Trump working with all of us and all of us working with him. […] [W]e got a decent chance of coming back in 2022. But we can't do it without the President." He's not alone. There'a a whole cadre of Republicans senators who are actually threatening McConnell's leadership if he votes to convict Trump.

They're not going to be able to hide from what Trump did, the House Democrats will make sure of that. "The president of the United States committed an act of incitement of insurrection," Pelosi reminded everyone Thursday. "Just because he's now gone—thank God—you don't say to a president, 'Do whatever you want in the last months of your administration. You're going to get a get-out-of-jail card free' because people think you should make nice, nice, and forget that people died here on Jan. 6."

The McConnell-Trump war reignites, as Republicans threaten his leadership over impeachment

Posted on (Updated by Joan McCarter

The minority leader of the Senate, Mitch McConnell, is getting threats from his conference over what they perceive to be his abandonment of their one true leader, Donald Trump. Though only one is dumb enough to do so publicly, rather than anonymously.

"'No, no, no,' Sen. Ron Johnson, a Wisconsin Republican and Trump ally, told CNN when asked if he could support McConnell if he voted to convict Trump, calling such a vote a 'dangerous precedent' and adding: 'I don't even think we should be having a trial.'" (You knew it was him, didn't you.) Another, asked the same question, told CNN "If he does, I don't know if he can stay as leader." This is after McConnell's remarks Tuesday on the floor, when he said "The mob was fed lies. […] They were provoked by the President and other powerful people. And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like. But we pressed on."

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According to Sen. Mitt Romney, McConnell told Republicans to "vote your conscience." The Utah Republican said that McConnell "has not in any way tried to pressure folks to go one way or another." That's not enough for Johnson and the more circumspect Republicans who aren't showing their hands right now. They want him to fight the upcoming trial and protect their leader. So the old days of the Republican civil war between Trump and McConnell are back. Which is fun.

The part that isn't fun is that these Republicans are still downplaying the insurrectionist attack of January 6, when the lives of their colleagues—and former Vice President Mike Pence!—were very much threatened. Republican Rep. John Katko, the top Republican on the House Homeland Security Committee and one of the 10 House Republicans who voted to impeach, has hinted at just how dangerous the situation was without revealing any classified information he's received in intelligence briefings.

"I've had a lot of classified briefings on it, and it's deeply troubling," Katko said in an interview with local press this week. "I was left with a profound sense that it was much worse than people realized." Bad enough that he is behind the effort to create a 9/11 type commission that has subpoena power to investigate. "There are a lot of unanswered questions here, from possible security lapses to who was involved and when they were involved," Katko said. "We need to have a full stem to stern look back on this to see what happened, how it happened, the sequence of events, who contributed to it, and how we make sure it never happens again." McConnell would have also been getting these briefings, and so would Johnson, who is the outgoing chair of the Senate Homeland Security Committee.

McConnell is smart enough to recognize the threat to the Republican Party—including losing lots and lots of funding from big donors who don't want to be associated with the rabble that tried to overthrow Congress—posed by the insurrection and its aftermath. There will be an aftermath because there will be a commission that investigates it. There will also be more arrests and more court proceedings that uncover what happened behind the scenes. Johnson hasn’t caught up with that eventuality yet.

McConnell finally blames Trump for insurrection, but that’s not enough. The Senate must convict

Posted on (Updated by Joan McCarter

The second impeachment trial of Donald Trump in the U.S. Senate is likely to be a real trial, unlike the first time around when Senate Majority Leader Mitch McConnell and his fellow Republicans conducted a sham process, refusing to hear witnesses and refusing to consider the gravity of Trump's crimes. That's changed, now that their place of work—their essential home—has been defiled by an insurrectionist mob incited by Trump. That the impeachment hearings will go forward this time was made clear Tuesday by none other than McConnell, when he stated on the floor "The mob was fed lies. They were provoked by the president and other powerful people."

Despite McConnell's essential granting of the validity of the charges against Trump and recognition that the process will proceed, there will still be Republicans and Trump apologists who will argue that the Senate shouldn't continue because Trump is already gone—variations on the supposed "unity" theme we have been hearing since January 6 and the violent, armed, deadly insurrection Trump instigated. Some will argue that the Senate cannot try a former president for acts during his or her presidency. Most nonpartisan experts have called that idea bunk, but now we have the pretty darned definitive conclusion of the Congressional Research Service, which looks at all the scholarship and all the precedent, and concludes that it is well within the power of Congress to convict a departed official and that "even if an official is no longer in office, an impeachment conviction may still be viewed as necessary by Congress to clearly delineate the outer bounds of acceptable conduct in office for the future."

The attorneys writing at Congressional Research Service start at the beginning. "As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office," they write. "This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office." That's following the precedent of British law and practice, which included the impeachment of the former governor-general of Bengal Warren Hastings, impeached two years after his resignation and while the Constitutional Convention was actually happening. The Framers were aware of this while it was happening, and in crafting the impeachment articles did depart from some British precedent—for example requiring a two-thirds rather than simple majority vote for conviction—but they didn't explicitly restrict Congress's power to convict a departed official.

There's the plain text of the Constitution, however, which doesn't really definitively say one way or the other. "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment … and Conviction." Then there's the other part: "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 [emphasis added]," which follows from removal from office. How could you disqualify an already-departed and deserving official from holding future office if you couldn't impeach them first? As one scholar argued all the way back in the 1920s, "an official's resignation following an initial impeachment by the House but before conviction in the Senate may not 'deprive the people of the full measure of the protection afforded them' through the additional remedy of disqualification."

What was in the Framer's heads isn't too hard to divine, either. They told us. CRS relates this: "President John Quincy Adams, who, during debate on the House's authority to impeach Daniel Webster for conduct that occurred while he had been Secretary of State, said in relation to his own acts as President: 'I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.'" There's also the precedence of the 1876 impeachment of Secretary of War William Belknap for, essentially, bribery—accepting payments in return for making an appointment. Belknap resigned hours before a House committee determined there was "unquestioned evidence of malfeasance," but the committee recommended impeachment anyway, despite his resignation. The House debated moving forward, and ultimately approved the resolution, without objection. The Senate debated and deliberated on the issue of whether he could be tried in the Senate as a former official for more than two weeks, and ultimately "determined by a vote of 37 to 29 that Secretary Belknap was 'amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.'" That vote established the representation of an impeached former official being subject to a Senate trial. A majority voted to convict, but not a two-thirds majority.

What the CRS report does not go into deeply, and what would be the larger point of a Trump conviction, is the disqualification part. That would come in a simple majority vote following a successful conviction, and would prevent Trump from ever holding "any office of honor, trust or profit under the United States." They can't get to that part—the part that matters to McConnell and plenty of other Republicans—if they don't do the first part, convict.

McConnell's condemnation of Trump on Tuesday means little more than McConnell trying to create distance between himself and the man he—almost single-handedly—allowed to remain in a position in which he could raise an insurrection against McConnell's own branch. This could have been prevented if, one year ago, McConnell and Senate Republicans had offered even one word of rebuke to contain Trump. If at any point in the last four years McConnell had done anything to curtail Trump's worst instincts. Hell, if we wound the clock back to late summer 2016 when the entire intelligence community was warning congressional leadership that Russia was intervening in the election on Trump's behalf, when McConnell refused to let that information be made public. But I digress.

Yes, Trump can still be impeached, convicted, and barred from ever holding office again. That's if Senate Republicans care more about the country, about their own institution, about the future of their own party than about their next election and whether the MAGA crowd will primary them.

Schumer, McConnell working out how to handle 50-50 Senate, but Democrats have most control

Posted on by Joan McCarter

The first duty for Vice President-elect Kamala Harris on Wednesday once she’s officially Vice President Harris will be to swear in Alex Padilla, the successor to her Senate seat in California. She could also be swearing in Georgia's new senators, Jon Ossoff and Raphael Warnock, though that's a bit uncertain, depending on when Georgia can finish up certification of the election. (The deadline is Friday, but they're moving faster.) With that, Sen. Chuck Schumer becomes majority leader and Mitch McConnell has more time to cook up plots to stymie the Biden administration and Schumer. Officially, the two have determined a power-sharing agreement based on the precedent set in the 2001 Senate, which also split 50-50.

That agreement is expected to give Schumer and committee chairs the power of setting the schedule. The committee assignments will be split evenly, but Democrats will chair and have the power to set the agenda on committees. Tied committee votes on legislation or on nominations will probably default to the Democrats and advance to the floor, where Harris would be able to break ties. This agreement is roughly what staff has worked out thus far; the leaders are set to meet Tuesday to ink the final organizing resolution that will determine all that. They also need to work out the logistics of the coming impeachment trial of Donald Trump and coordinating that with the urgent votes on President-elect Joe Biden's Cabinet nominees. One old Senate hand, Jim Manley, has heard—presumably from contacts in the leadership team—that the staff negotiations "did not go as smoothly as published reports suggested." So it could be a rather interesting meeting. On the whole, though, procedural experts are saying, "Don't panic."

Adam Jentleson, former deputy chief of staff to Harry Reid and procedure guru tweeted: "it's fine. If Dems control the floor and gavels, and ties in committees advance bills or nominations to the floor, those are the powers that come with majority control." It's inconceivable that Schumer gives that away, and it would go against the 2001 precedent. "The functional reality of the Senate will not be noticeably different under this than it'd be if Democrats had a bigger majority," Jentleson continued. The two leaders, Schumer and McConnell, will hash out the organizing resolution that determines all this. It will require 60 votes to pass and could be subject to filibuster if someone really wants to raise hell—presumably Rand Paul or Ted Cruz.

There are other outstanding questions about things like subpoena power, but those things will be determined by the committees and the power-sharing agreements worked out by them, which can also change as the committee moves along depending on how much the committee chair wants it. At Judiciary in the past couple of years, Sen. Lindsey Graham was happy to ignore committee rules or change them on the fly to shove through Trump nominees.

There will be complications because Republicans are awful, and Mitch McConnell. The even split gives the so-called moderates—Democrat Joe Manchin and Republicans Lisa Murkowski and Susan Collins—outsized power. There is, however, always the threat that Democrats will get so frustrated with obstruction that even Manchin will get to the point of nuking the last vestiges of the filibuster. Both Schumer and McConnell are going to be counting on 100% loyalty among their members, and they're going to be counting on 100% attendance to succeed with their agendas, and neither can probably expect it. But as it stands now, the arrangement shaping up between the leaders is standard and not yet anything to get worked up over.

Yes, Trump can be impeached, convicted, barred from ever holding office again—even after he’s gone

Posted on (Updated by Joan McCarter

Outgoing Senate Majority Leader Mitch McConnell has succeeded again in obstructing vital action for the future of the nation. In this case it’s the conviction of Donald Trump, with McConnell refusing to reconvene the Senate to hold the impeachment hearings and conviction vote until after Trump is gone. One thing that will undoubtedly do is spur conservative commentators, and probably no small number of Republican senators, to insist you can't impeach and convict a former president.

Well, you can. At least the legal minds at Just Security say so: "The Constitution provides that the President 'shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,' but it says nothing about the timing of when the impeachment and trial may take place." The Constitution leaves that possibility open, probably for one key reason—to make sure that an official and in particular a president who was convicted of "high crimes and misdemeanors" be barred from ever holding another office.

As Michael Gerhardt at Just Security writes, "the special penalties upon conviction in impeachment are designed to protect the republic from the very type of people who have abused public office in such a grave manner that they should never have the opportunity to be entrusted with public power again." It's almost as if the impeachment statutes were written for Trump. "It would make no sense for former officials," Gerhardt continues, "or ones who step down just in time, to escape that remedial mechanism."

At  The Volokh Conspiracy, Ilya Somin agrees. "Nothing in the text of the Constitution bars impeaching and trying officials who have already left office. Article II, Section 4 of the Constitution indicates that '[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.'" Further, "Article I, Section 3, Clause 7 says that '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.' Notice that the latter is a penalty that can be applied even to an official who is no longer in office."

Michael Stokes Paulsen at The Bulwark agrees, too. "Impeachment is the exclusive method for removing a president from office but nothing in the constitutional text literally limits impeachment to present officeholders. Moreover, it would seem almost absurd to permit a miscreant officeholder to frustrate completely the possibility of receiving the constitutionally contemplated punishment of disqualification from future office by quickly submitting a pre-emptive resignation, hoping to launch a new bid for office in the future."

No, no president has ever been removed from office by the Senate, either during or after his term. But no other president has been impeached twice either. He's setting all kinds of precedent here, so this should be another. You can sure bet that if the Founding Fathers were around now to see what has happened to their government and what was installed in the White House for the past four years, they'd say about impeachment is: "What took you so long?"

Federalist Society quiet on bigwig member who spoke at insurrection, told Pence to overturn election

Posted on by Joan McCarter

More than 200 judges have been embedded in the federal judiciary by outgoing Senate Majority Leader Mitch McConnell and Donald Trump. The huge majority of those judges come from the Federalist Society, the right-wing dark money association that has been working for years to erode civil rights, end abortion, oppose LGBTQ equality, stop gun safety laws, and fight regulations protecting the environment, health care, and worker safety—aka everything achieved in roughly half a century of progress. They are responsible for the current makeup of the Supreme Court and most of the Republican Senate. And they also have at least partial responsibility for the insurrection that happened at the U.S. Capitol on Jan. 6.

John Eastman, until this week the chairman of the Federalist Society's Federalism & Separation of Powers practice group, spoke at the pre-insurrection rally. "Anybody that is not willing to stand up and [vote to overturn the election] does not deserve to be in the office!" Eastman told the crowd. Standing next to Rudy Giuliani at the rally, he broke into a smile when Rudy incited the crowd with "Let's have trial by combat!"

Those linked tweets are from Slate's Mark Joseph Stern, who highlighted Eastman's role in pushing Trump's various plots to overturn the election: "As the president's actual attorneys backed away from his coup, Eastman rushed in to fill the void, attempting to bolster the scheme with incoherent legal theories," Stern writes. "When Texas Attorney General Ken Paxton urged the Supreme Court to overturn the election by nullifying millions of votes, it was Eastman who intervened on Trump's behalf to endorse Paxton's suit."

Worse, Eastman was in the Oval Office on Jan. 5 telling Trump—and Vice President Mike Pence—that Pence could legally toss out the real, certified electoral votes and throw the election to Trump. Because of his participation in the coup attempt, he's been tossed from the Chapman University School of Law, where he was a law professor and onetime dean. He's officially "retired"—at age 60, in the middle of the school year. But sure, retired. Eastman has been a visiting scholar at the University of Colorado Boulder, where calls for his dismissal have so far resulted in cancellation of two courses he was going to teach this spring.

As of now, the Federalist Society has not thrown out Eastman. Never mind that his name has been floated as one of Trump's impeachment lawyers, which would be kind of awkward. In what can only be considered an effort to save face—and its ability to someday again be able to shape the federal judiciary—one of the group's co-founders is calling Trump "a danger to the nation" who must be convicted by the Senate.

But the Federalist Society, which has supplied 85% of Trump's judges, has made no comment on Eastman, who is an insurrectionist. That's a problem for the organization. It's a much larger problem for the nation. Expanding the courts to dilute the influence of these judges is going to have to be a high priority for President-elect Joe Biden and the Democratic Senate.

Schumer, Pelosi grapple with uncertainty and ongoing threats in proceeding to Trump’s Senate trial

Posted on by Joan McCarter

The timing of the second impeachment trial of Donald Trump in the Senate remains uncertain as the week closes out. House Speaker Nancy Pelosi was asked in her Friday press conference about when the impeachment article charging Trump with "incitement of insurrection," which was passed in the House on Wednesday, will go to the Senate. She didn't answer.

"Right now, our managers are solemnly and prayerfully preparing for the trial which they will take to the Senate," Pelosi said. "At the same time, we are in transition. With the COVID relief package President-elect Biden announced last night, he is delivering on what he said when he was elected, 'help is on the way.'" What that likely means is soon-to-be Majority Leader Chuck Schumer is still working out how it will proceed in consultation with the transition team for President-elect Joe Biden. Outgoing Majority Leader Mitch McConnell refused this week to work with Schumer to speed up the process and reconvene the Senate ahead of Tuesday's scheduled official session. Everything about this process from this point is novel for the Senate.

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There's the high level of physical danger surrounding the whole of the Capitol complex after the attack and for Biden's inauguration. There're the two Democratic senators from Georgia, Jon Ossoff and Raphael Warnock, whose election still hasn't been certified; the deadline for that is Jan. 22, though it could happen on Jan. 19, the same day the Senate comes back. This process in these circumstances is entirely new: "Everything we are talking about is being invented out of whole cloth," Democratic Sen. Chris Murphy told The New York Times. "We have never tried a president after they left office. We've never had an insurrection against the Capitol. We've never held a trial while we are confirming a cabinet. All of this is first impression."

But Democrats remain committed to figuring it out. "I can see no reason we cannot find a way with our archaic rules," said Sen. Amy Klobuchar. Working that out, at this moment, seems to look like splitting the Senate sessions, the Times reports. Schumer and McConnell met Thursday, with a "goal … to divide the Senate’s days so the chamber could work on confirming members of Mr. Biden’s cabinet and considering his stimulus package in the morning and then take up the impeachment trial in the afternoon." Until that is nailed down, it's not clear that Pelosi would initiate the process by formally sending the article over to the Senate.

The outcome there is also unclear, and again it depends a lot on McConnell. He's reportedly told associates that he's sick of Trump, supports the impeachment, wants him expunged from the Republican Party, and sees his impeachment as a way to do that. But that's hearsay right now; McConnell hasn't made those statements public. Maybe he's waiting to see if Trump does anything else between now and Wednesday, his last day in Washington. Maybe he's genuinely undecided. But if McConnell votes for conviction, there will very likely be 16 other Republicans joining him.

As of now, Alaska Republican Sen. Lisa Murkowski is the closest to declaring her intent. On Thursday, she said that Trump's words on Jan. 6 "incited violence," which "briefly interfered with the government's ability to ensure a peaceful transfer of power." She continued: "Such unlawful actions cannot go without consequence and the House has responded swiftly, and I believe, appropriately, with impeachment." Others who have suggested they would vote to convince include Sens. Richard Shelby of Alabama, Dan Sullivan of Alaska, Pat Toomey of Pennsylvania, Ben Sasse of Nebraska, and Mitt Romney of Utah. If you had that many, surely Maine's Susan Collins would jump on, unless she's too bitter that Democrats had the effrontery to mount a challenge to her reelection. Again, whether enough decide that Trump has to be cut out of the body politic like a cancer depends much on McConnell.

All those Republicans need to heed Michigan Rep. Peter Meijer, one of the 10 House Republicans to vote to impeach, even at potential physical harm to himself and his family. "I have colleagues who are now traveling with armed escorts, out of the fear for their safety. Many of us are altering our routines, working to get body armor, which is a reimbursable purchase that we can make. … It's sad that we have to get to that point," he said. "But, you know, our expectation is that someone may try to kill us."

However, "I think you have to set that aside," he said. "I don't believe in giving an assassin's veto, an insurrectionist's veto, a heckler's veto. If we let that guide decisions, then you're cowering to the mob. I mean, that's the definition of terrorism—is trying to achieve a political end using violence." How many senators will have that courage?

McConnell tries to shut down momentum on impeachment, leaves time for more discovery of Trump crimes

Posted on (Updated by Joan McCarter

Two-time popular vote loser Donald Trump has also now achieved the distinction of being the only two-time impeached occupant of the Oval Office, earning half of the four presidential impeachments in U.S. history. He's unlikely to make history by being the only one to be removed from office by Senate conviction, however. That's unless he does something extreme in the next six days, which he is more than capable of, but might be a stretch—even for him

That's in large part because current Senate Majority Leader Mitch McConnell has refused soon-to-be Majority Leader Sen. Chuck Schumer’s request to expedite the hearing. The two could have agreed to use emergency authority to bring the Senate back as soon as Thursday or Friday to start hearings and potentially have it done before Inauguration Day next Wednesday. But that would have required McConnell giving a damn about the republic. Instead, he said Wednesday that the trial will begin at the Senate's "first regular meeting following receipt of the article from the House." The first regular meeting of the Senate is Jan. 19. House Speaker Nancy Pelosi has not said yet when she'll send the charge to the Senate.

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The problem is, of course, acting upon and prioritizing President-elect Joe Biden's 100-day agenda, which includes some pretty essential stuff. Biden has suggested that the Senate bifurcate its time, divided between confirming his Cabinet members and working on COVID-19 relief on the one hand, and impeachment on the other. Presumably, Pelosi, Schumer, and Biden are discussing this now, trying to determine the best course of action, now that McConnell has screwed them all by refusing to take responsibility for Trump. As usual.

Conviction will require two-thirds of the Senate, meaning 17 Republicans will have to join with Democrats to convict. The problem McConnell and those Republicans face is that every day that passes reveals more horrific details of the Jan. 6 Capitol insurrection, and more implications that there was a level of Republican institutional support for it, from members of Congress who might have been complicit to the Republican Attorneys General Association. There's a whole lot of smoke right now obscuring just how deep the plotting for the insurrection went, and when it's cleared it could be exceedingly bad news for Republicans. That's where the delay—allowing for a lot more discovery—could help seal Trump's fate with Republicans.

McConnell is making a bet, apparently, that it won't work that way, that the delay will distract the nation from the horror that has been replayed over and over again of their house, the Capitol, being besieged and vandalized by a mob screaming for blood. The good news is that Republicans' initial efforts of pretending at "unity" didn't win over a single Democrat, and in fact 10 Republicans voted to impeach. Biden is not saying anything about "looking forward, not back" and is not trying to sweep any of this under the rug of history. Corporate America is further distancing itself from Republicans by the minute. This is not going to go away with Trump—and the Republican Party can't afford for it to. The reckoning will come, and Republicans are going to again feel the pressure of choosing to stand with Trump or with the country.