Uncertainty hangs over Trump impeachment trial

President Trump’s upcoming impeachment trial is mired in uncertainty as Washington heads into a two-week holiday stretch.

The inability to get even the basic outline of an agreement has left senators wondering when, or if, the next phase of the proceedings will begin. The Senate is out until Jan. 3, and the House returns four days later, keeping trial deliberations stuck in limbo until at least the second week of the new year.

Lawmakers left the Capitol this week largely in the dark about what the start of 2020 would look like, after a decision by House Democrats to delay transmitting the articles to the Senate threw a curveball into the impeachment timeline.

When asked what he was expecting for January, Sen. Roy Blunt (Mo.), the No. 4 Republican, turned the question back on reporters and asked them if Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles Schumer (D-N.Y.) had an agreement on aspects of the trial like witnesses and evidence. 

“I don’t think we have any guidance on that,” he added.

Under Senate rules, an impeachment trial starts the day after the House transmits the articles to the chamber, unless that day is a Sunday. But after days of behind-the-scenes negotiations, Speaker Nancy Pelosi (D-Calif.) declined to say when the articles would be handed over to the Senate, citing concerns that McConnell would not hold a “fair” trial.

Some congressional Democrats went a step further, suggesting the House should never hand over the articles, effectively cutting off the second phase of the impeachment process.

“If you have a pre-ordained outcome that’s negative to your actions, why walk into it? I’d much rather not take that chance,” House Majority Whip James Clyburn (D-S.C.) said during an interview on CNN. 

Democrats are hoping the delay tactic helps exert leverage and keep the focus on McConnell, who has emerged as a top antagonist for the party ahead of next year’s elections. 

But Pelosi’s decision has divided Democrats, with some rallying to her side and others questioning the strategy. 

Sen. Chris Murphy (D-Conn.) urged the Speaker to send the articles over “sooner rather than later,” and told MSNBC that talk of not sending over the articles at all was a “terrible idea.” 

“We have to come to a decision in the Senate as to how we’re going to structure this trial, and I think that’s really a decision the Senate has to come to. I understand the House may want to have impact on that decision, but it ultimately is our constitutional responsibility,” Murphy added.  

Sen. Christopher Coons (D-Del.) warned that if Pelosi is trying to force McConnell to agree to a “fair” trial, “it may be a long wait.”

The approach simultaneously flummoxed and enraged Republicans, with McConnell shrugging it off even as Trump and his top allies on Capitol Hill demanded the president get his shot at being acquitted by the Senate. With Republicans holding a 53-47 majority in the chamber, and 67 votes required to convict a president, the outcome of the trial is all but guaranteed.

McConnell has said the Senate will hold its first votes of 2020 on Jan. 6, but gave no indication about when he thinks a potential trial might commence.

“Frankly, I’m not anxious to have the trial,” McConnell told reporters. “If she thinks her case is so weak she doesn’t want to send it over, throw me into that briar patch.”

The latest injection of partisan fighting between the two chambers highlights one part of Trump’s impeachment that is unique. Though he’s the third president to be impeached, it’s the first time the House and Senate are controlled by different parties during impeachment, helping raise the level of political acrimony on Capitol Hill.

In addition to questions about when the House will send over the articles, negotiations over the details of the trial are at a stalemate.

During the Clinton trial in 1999, the Senate passed two resolutions. In a 100-0 vote, senators agreed on the timeline for the trial and basic ground rules. In a second resolution that broke down along party lines, they agreed to subpoena three witnesses for closed-door depositions. 

But Senate leaders this time around have kicked any talk of a deal on trial procedure until after the recess following days of partisan snipping about potential witnesses and whether to pass one resolution or two. What, if anything, will change that dynamic over the break is unclear. Schumer, pressed on that point, sidestepped, telling reporters: “Merry Christmas and a happy new year, one and all.” 

McConnell described the talks as “at an impasse” and accused Schumer of trying to create different rules for Trump compared to those for former President Clinton. McConnell wants to pass two resolutions — one on process and potentially a second calling witnesses — while Schumer wants one resolution at the outset of a trial that deals with both. 

Republicans are weighing the possibility of a trial with no witnesses, something McConnell has publicly endorsed. But Democrats want at least four, including former national security adviser John Bolton and acting White House chief of staff Mick Mulvaney, as well as documents related to the delay in U.S. aid to Ukraine that was at the center of the House impeachment inquiry.

“To my Republican colleagues, our message is a simple one. Democrats want a fair trial that examines the relevant facts. We want a fair trial. The message from Leader McConnell, at the moment, is that he has no intention of conducting a fair trial, no intention of acting impartially, no intention of getting the facts,” Schumer said on the Senate floor. 

Democrats would need at least four Republicans to side with them on the Senate floor to call witnesses if McConnell and Schumer do not reach a broader deal. They would also need at least three Republicans to join with them and block any GOP effort to move on to voting on the articles of impeachment without calling witnesses. A 50-50 tie in a trial, where Vice President Pence cannot break a tie, would result in a motion failing. 

GOP senators viewed as potential swing votes on trial rules have been tightlipped about whether they want to hear from witnesses as part of the proceedings, instead urging Schumer and McConnell to make a deal.

“They’re still going to be working on it. That’s what we’re encouraging them to do,” said Sen. Lisa Murkowski (R-Alaska), viewed as a key vote.

Sen. John Thune (R-S.D.) acknowledged that the impeachment trial’s majority rules dynamic — except on the vote to convict or acquit — injects an extra layer of suspense into the Senate deliberations.

“It’s hard to predict that at this point,” Thune said about witnesses. “I don’t know … where our members, all of our members, are going to come down.”