Senate Republicans have figured out a way to wiggle out of passing judgment on President Donald Trump in his impeachment trial: claiming that the Senate has no ability to try him after he leaves office Wednesday.
But that defense isn't going to fly with their Democratic colleagues. Every impeachment trial is basically a blank canvas for the Senate to impress its stamp upon. Article I, Section 3 of the Constitution says the Senate "shall have the sole Power to try all Impeachments."
Constitutionally speaking, that means that the Senate has almost unlimited control over what that looks like in practice, as long as a majority of senators agrees to it. In effect, soon-to-be Majority Leader Chuck Schumer has just three numbers to consider during the negotiations to set up the trial: 50 Democrats, 17 Republicans and 100 days.
Impeachment trials since President Bill Clinton's have kicked off with resolutions negotiated between the majority and the minority over the scope of the trials, their structure and any special rules other than those in the Senate's rules of procedure. Unlike this time last year, Republicans will no longer hold the majority by the time the trial is likely to start. Majority Leader Mitch McConnell's unified Republican caucus steamrolled Democratic demands for witness testimony during the truncated affair, passing the rules governing the trial with only GOP votes.
Schumer has the opportunity to do the same: As long as the Democrats stick together, they have almost limitless leeway to decide a number of unanswered questions during this unprecedented impeachment however they want. That includes whether or not Chief Justice John Roberts has to be the person to preside over the trial instead of the new vice president, Kamala Harris, and how long the process will last once it starts. (The Constitution says that chief justice presides over impeachment trials for the president and vice president — it's less clear about if that's the case once the president is out of office, which will be fun for senators to untangle.)
The biggest constraint on Schumer's decision isn't the start of the trial though; it's the end. That will depend on the nine House impeachment managers whom Speaker Nancy Pelosi named last week. Their case will need to persuade 17 Republicans to vote to convict Trump of incitement of insurrection — still a tall order — and so far, they've given no hint of their strategy.
The biggest constraint on Schumer's decision isn't the start of the trial; it's the end.
Whatever pace the managers determine will in turn affect how the Senate manages President-elect Joe Biden's first weeks in office. Pelosi has yet to send the article the House approved last week to the Senate — we still don't know when she will, but probably not until after Biden's inauguration. Once she does, a set of automatic rules clicks into place, launching the trial within the next few days, causing worries that it will kneecap Biden's agenda.
The speculation is that Pelosi transmits the article next week, after the Senate can vote on at least some of Biden's national security Cabinet picks. After that, Biden has asked whether the Senate can "bifurcate" its agenda to handle legislation like his proposed stimulus package while also holding the trial. That, though, will likely take a unanimous consent agreement, which McConnell may not be able to guarantee without a cost for Schumer.
Schumer needs to build out a framework that allows for a clear, solid case against Trump, that doesn't alienate the entire GOP caucus and that allows the Senate to address both the past and the future at the same time. No small feat — but possible, I think.
A solid deal, in my opinion, would allow Republicans a vote to dismiss the charge against Trump, as Sen. Lindsey Graham, R-S.C., demanded in a letter to Schumer on Sunday. An on-the-record vote ahead of the prosecution's case can only be a net positive politically for Democrats. In exchange, Graham and others should have to sign on to the consent agreement to allow for other legislative business in the mornings during the trial.
Then, the trial should proceed for a minimum of five weeks, with a full array of witnesses available to the House managers. This will be the biggest, best chance to lay out Trump's attempted coup to the American people, and the Senate should use it.
But Trump's eventual defense — which won't include Rudy Giuliani but isn't likely to be an all-star team — should be prevented from just hashing out the lies and conspiracies that got us here in the first place. The Senate's rules allow the presiding officer to rule on admissibility of witnesses and evidence — a tweak explicitly instructing the presiding officer to reject presentations uncritically citing conspiracies would be even better, if more divisive for Republicans to support.
And finally, any challenge to the ability of the Senate to hold the trial should be deemed out of order. Despite what Jonathan Turley, a law professor at George Washington University who was skeptical of Trump's first impeachment, said in a recent op-ed at Fox News, the Constitution doesn't say impeachment is only about removal.
As I argued in December, the primary purpose of this trial would be disqualification, barring Trump from running again in 2024. If Turley was right, it would mean a president could simply resign to avoid punishment for high crimes, as some of Trump's advisers were reported to have considered as the impeachment vote neared. It would be a pretty poor deterrent if the founders meant for presidents to be able to escape prosecution because their terms had ended. Trump's term will be over, but that can't mean justice goes unfulfilled. It's up to Senate Democrats to make it happen.