Delaying impeachment trial could benefit both parties

McConnell has requested that a trial not start until mid-February, outlining a proposed schedule for pretrial motions

The timing for when Speaker Nancy Pelosi will transmit the article of impeachment to the Senate is unknown.  (Caroline Brehman/CQ Roll Call)
The timing for when Speaker Nancy Pelosi will transmit the article of impeachment to the Senate is unknown. (Caroline Brehman/CQ Roll Call)
Posted January 21, 2021 at 7:50pm

Senate Minority Leader Mitch McConnell on Thursday requested that Democrats delay Donald Trump’s second impeachment trial until mid-February to give the former president time to prepare a defense.

McConnell shared his proposed pretrial timeline with Senate Republicans on a conference call Thursday afternoon. In it, the House managers would present the article to the Senate on Jan. 28 and the Senate would issue a summons to Trump giving him one week to respond to the charges. The House’s pretrial brief would be due the same day, Feb. 4, as Trump’s plea, and then Trump would have another week, until Feb. 11, to submit his pretrial brief. The House would have two days to submit a rebuttal.

McConnell’s proposal didn’t specify a trial start date, but with all the pretrial documents due by Feb. 13, a Saturday, it appears likely that under his plan the trial would begin that Monday, Feb. 15. Per its impeachment rules and precedents, the Senate, sitting as the court of impeachment, would meet every day at noon, except Sundays, until the trial concludes.

“Senate Republicans are strongly united behind the principle that the institution of the Senate, the office of the presidency, and former President Trump himself all deserve a full and fair process that respects his rights and the serious factual, legal, and constitutional questions at stake,” McConnell said in a statement. “Given the unprecedented speed of the House’s process, our proposed timeline for the initial phases includes a modest and reasonable amount of additional time for both sides to assemble their arguments before the Senate would begin to hear them.”

A unanimous consent agreement would be needed for the trial schedule to play out as McConnell has proposed. The Kentucky Republican told reporters Thursday evening that Democrats had “not yet” responded to his request.

“We’re going to continue to talk about it,” McConnell said.

Mutually beneficial?

Delaying the trial would appear to be mutually beneficial given that Democrats had already been stressing about how to balance that with their desire to quickly confirm President Joe Biden’s executive nominees and consider additional coronavirus relief legislation.

In a potentially promising sign, Senate Majority Leader Charles E. Schumer did not dismiss McConnell’s suggestion out of hand.

“We received Leader McConnell’s proposal that only deals with pretrial motions late this afternoon. We will review it and discuss it with him,” a Schumer spokesman said.

Most Senate Democrats didn’t have time to react to McConnell’s proposal before the Senate adjourned Thursday, but one who did wasn’t keen on it.

“My view is that we should probably just do the trial now and get it done and double-track the process,” Maryland Sen. Chris Van Hollen told reporters, referring to a suggestion that the Senate could structure its days to split time between legislative business and the trial.

Speaker Nancy Pelosi controls the timing more than anyone because once the House transmits its impeachment article charging Trump with incitement of insurrection to the Senate, the impeachment trial supersedes any other pending business in the chamber. The California Democrat has been coy about her plans.

“There’s no use asking. I’m not going to be telling you when it is going,” Pelosi told reporters as she opened her weekly news conference Thursday.

The speaker, however, did not indicate plans for a long delay, as she said it would be “soon.”

Pelosi at one point seemed to start to reveal her plans, saying, “We will be in another few days,” before stopping herself and saying she would be talking with the House impeachment managers about the timing.  

“We had to wait for the Senate to be in session,” she said. “They’ve now informed us they’re ready to receive. The question is other questions about how a trial will proceed, but we are ready.”

After the House impeached Trump for the first time in December 2019, Pelosi held on to the articles for weeks as Schumer and McConnell negotiated the rules for the trial. Democrats had wanted Republicans to agree in advance to call witnesses, but ultimately they didn’t get their way. 

This time Democrats do not appear to be pushing for witnesses, but Pelosi nonetheless seems to be waiting on Schumer and McConnell to reach an agreement on trial rules before she sends the article over. She also declined to specify how she wants her House impeachment managers to present the case in the Senate, saying she’s not involved in their preparations for the trial. 

“It’s up to them to decide how we go forward, when we go forward,” she said. “It will be soon. I don’t think it will be long. But we must do it.”

Schumer, meanwhile, dodged questions on the trial timing by saying Pelosi will determine when to send the article over. 

“Leader McConnell and I are trying to come up with a bipartisan agreement on how to conduct the trial,” the New York Democrat said. “But make no mistake about it: There will be a trial … and we’ll have to wait till she sends the articles over to figure out how to do all that.”

Despite the two Democratic leaders deferring to one another, they’re undoubtedly coordinating and working through strategy on what’s best for their party. And there appears to be some disagreement about the appropriate course of action.

Senate Majority Whip Richard J. Durbin said Democrats have not coalesced around the notion of a quick trial that could last only a few days. 

“You’re going to hear that theory, and you’ll also hear the theory, ‘Take it seriously, handle it in a credible fashion,’” the Illinois Democrat said.

‘Fair to everybody’

South Carolina GOP Sen. Lindsey Graham told reporters he met with McConnell on Thursday and they reviewed the history of presidential impeachments and how long the teams of lawyers had to prepare between House charges and Senate trials. That’s how they determined a few weeks would be necessary for Trump to prepare a defense.

“The difference is there was really no input in the House. It was a snap impeachment,” Graham said. “But when you look at the time periods involved, it’s very similar to what we’ve done in the past.” 

The due dates for pretrial briefs are actually somewhat longer than in past impeachment trials, but Republicans argue that’s necessary because of the unprecedented House timeline.

“The president was shut out in the House, so his team needs some time to prepare. I would think that managers would also,” Graham said.

On Wednesday, Graham had told reporters he had talked to Trump on Tuesday night about the trial and Trump was struggling to put together a response.

“He said, ‘I really don’t know the lay of the land here,’ and he’s looking for some lawyers,” Graham said. “I’m trying to help him there, and he’s just trying to put together a team.”

Graham must have moved quickly, because by Thursday he had secured Butch Bowers, who’s served as counsel to several GOP politicians, as what he called the “anchor tenant” of Trump’s defense team. The rest of the team has yet to be fleshed out.

“I’ve known Butch for a long time, solid guy,” he said. “He’s involved in very complex litigation. He’s represented the state of South Carolina and federal court over lots of issues. He’s a judge advocate, and that’s where I got to know him from,” he added, referring to their shared experience in the South Carolina Air National Guard legal world.

Earlier Thursday, Graham told reporters he thinks the trial will be quick. Although he disagrees with Democrats’ view that Trump incited the insurrection at the Capitol, he does agree that all the evidence needed to make a judgment call on that is in the public sphere. 

“I don’t think the country needs a whole lot,” Graham said. “I mean, the facts — there [was] no evidence presented in the House in terms of witnesses. … I guess the public record is your television screen. I don’t know. So I don’t see why this would take a long time.”