In case you missed it, new Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell reached an agreement on Friday night on a timetable for Donald Trump’s second impeachment trial. Without such a bipartisan move (which superseded the schedule set out in the standing Senate rules on impeachment), the trial would have begun this week after the House formally transmitted the article of impeachment it passed on December 13.
Under the new schedule, senators will still be sworn in the day after the article arrives (which is expected to happen on the evening of January 25), but then House managers and Trump’s attorneys will have two weeks to prepare and file pretrial motions before the trial itself begins the week of February 8, probably on February 9.
For Democrats, the delay gives Joe Biden some time to get his Cabinet confirmed and his legislative agenda underway (which is why he made positive comments about the agreement). Some may also hope that law-enforcement and media investigations of the events of January 6 may bring new and damning facts to light about Trump’s complicity, while keeping the subject in the news.
But the delay may also strengthen the growing consensus among Senate Republicans that the trial is either unconstitutional or pointless now that Trump has left office. Despite all the excitement over McConnell’s comments criticizing Trump and reports that he is “open” to conviction, more and more members of his conference are publicly arguing that the trial should not take place, as the Associated Press reports:
When the House impeached Trump on Jan. 13, exactly one week after the siege, Sen. Tom Cotton, R-Ark., said he didn’t believe the Senate had the constitutional authority to convict Trump after he had left office.
On Sunday, Cotton said “the more I talk to other Republican senators, the more they’re beginning to line up” behind that argument.
“I think a lot of Americans are going to think it’s strange that the Senate is spending its time trying to convict and remove from office a man who left office a week ago,” Cotton said.
This “process” argument against the trial (which has some scholarly support, as does the argument that it is entirely proper) has the benefit of appealing both to Republicans who claim Trump did nothing wrong (or at least nothing impeachably wrong) on January 6 and those who have criticized his conduct to one degree or another. It’s a big part of the reason that securing 17 Republican votes to convict the former president is highly unlikely. The immediate appearance of 2022 primary opponents for the ten House Republicans who voted for impeachment, plus loud pleas and threats to senators from MAGA folk, will have an effect as well, along with Trump’s own warning that he could start a third-party movement if Republicans aren’t loyal to him.
Even if most Senate Republicans do unite behind a no-trial strategy, there’s not much they can do about it other than offer a motion to dismiss the article at the beginning of the proceedings, which is sure to fail without Democratic support. There has been some vague talk of securing a Supreme Court ruling that the trial is unconstitutional, but it’s doubtful there is time for that. And in any event, SCOTUS has been strongly disinclined in the past to interfere in congressional impeachment powers. Indeed, Chief Justice John Roberts is said to be eager to avoid repeating his presiding-officer role from the first impeachment trial on the reasonably solid grounds that the constitutional purpose of that position was to avoid a conflict of interest for a vice-president who might have inherited the presidency upon a conviction. That’s not the case for Trump and Kamala Harris. (CNN reported on Monday that Vermont Democrat Patrick Leahy, the Senate pro tempore, will preside.)
So we’re almost certainly going to have a trial, albeit perhaps a brief one, and we may never know how many Senate Republicans might have voted to convict Trump in a completely secret ballot. As it stands, there are simply too many easy excuses for them to resist or oppose his conviction, and they may be privately hoping that the 45th president will just go away or that his disrepute will keep him from making a comeback even if an impeachment trial doesn’t.