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CAPITOL HILL – Here’s where Congress stands on a potential Senate impeachment trial and if – or when – House Speaker Nancy Pelosi, D-Calif., may send over the articles of impeachment against President Trump.
Pelosi keeps her own counsel, no doubt about it. Few sources among the Democrats have had much insight on what the speaker may do and when she may call a vote to send the articles to the Senate. But, the possibility that the speaker could act soon will ramp up in the coming hours.
The House is to return to session Tuesday afternoon with most members rolling in for votes in the evening. The speaker is planning to conduct leadership meetings in the late afternoon, and her caucus is expected to meet Wednesday morning. Those sets of meetings could shed light on what the speaker’s next move may be.
Multiple senior sources with the Democrats said the speaker wanted to hold onto the articles through the holidays to keep Trump – who clearly wanted a speedy trial – and Senate Majority Leader Mitch McConnell, R-Ky., off-balance. By holding onto the articles, Pelosi could underscore the narrative of McConnell running an “unfair shop” – especially if the Senate ultimately were to move to dispense with the articles quickly after receiving them.
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Consider this: Pelosi and other Democrats have now consumed nearly three weeks, curating the narrative that the Republican-controlled Senate may be ready to exonerate the president rapidly without hearing important evidence.
That said, here are the scenarios for when Pelosi may send the articles to the Senate:
- The speaker moves the articles to the Senate in the next few days. That could set up a trial soon – and present the possibility that even Senate Democrats seeking the presidential nomination could be free and clear of their responsibilities sooner rather than later. Keep in mind that there could be pressure from some Democrats to send the articles over to the Senate sooner rather than later. Many House Democrats have signaled they wanted to be finished with the impeachment issue and focus on other subjects.
- It is generally believed that if Pelosi doesn’t send the articles to the Senate soon, then she could continue to hold the articles for a while. It’s unknown if the speaker may want to hoard the articles for a few more weeks to let the smoke clear from the Iowa caucuses and New Hampshire primary.
Senators have been debating, on an informal basis, what they may want in a Senate trial. Remember that once the Senate has the articles, all it takes would be a simple majority vote of 51 yeas to call or reject any witnesses. Democrats secretly would like to get vulnerable GOP senators such as Susan Collins of Maine, Cory Gardner of Colorado, Martha McSally of Arizona and Joni Ernst of Iowa on the record opposing witnesses or voting to end the trial without much debate or consideration of evidence, Fox News has learned. Democrats then would weaponize those roll-call votes against GOP senators in contests this fall.
There has been much noise about the proposal by Sen. Josh Hawley, R-Mo., to alter the Senate impeachment rules to dismiss articles of impeachment immediately if the House clutched them for 25 days.
Hawley’s idea was interesting – but that dog won’t hunt. The Senate has been governed by 44 “standing rules.” Those rules required 67 (!) votes to end a filibuster on a proposal to change a Senate rule. The 26 Senate impeachment rules have been treated the same as the “standing rules.” Thus, it would take 67 votes to clear a filibuster on Hawley’s initiative. If lawmakers got past the procedural vote, a simple majority would be required to give the Senate the right to dismiss the House charges, sight unseen.
It would almost be impossible to score 67 votes to end debate on Hawley’s proposed impeachment rule change. But, it’s not even clear if the core of Hawley’s proposal would get 51 yeas.
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There also have been suggestions that the Senate could engineer a version of the “nuclear option,” whereby the Senate doesn’t change its Senate rules, but rather establishes a new “precedent.” In addition to using the “standing rules,” the Senate has conducted much of its business based on “precedent.” That’s how the Senate successfully limited the votes needed to end filibusters against various executive-branch nominees and the Supreme Court, via Nuclear Option I in 2013 and Nuclear Option II in 2017. The Senate didn’t change the rules. It simply established a new precedent for those circumstances.
We won’t take you down the parliamentary rabbit hole here, but even creating a new precedent for the impeachment rules would require the votes of 51 senators. And, the Senate would need to be in a very specific parliamentary posture to initiate the nuclear option. It’s very unlikely the Senate could wander into the unique parliamentary cul-de-sac required to launch the “nuclear option” for Hawley’s proposal.
There has been some dispute over how the Senate could execute Hawley’s proposed rules change. Multiple sources familiar with Senate procedure suggested to Fox News that the legislative body couldn’t entertain the proposed impeachment rules change unless the Senate actually was on the articles of impeachment. But, that’s why Hawley installed a “trigger” in his proposal in case the House hadn’t sent the articles to the Senate.
However, James Wallner of the R Street Institute argued the Senate could alter impeachment rules at any time. “Article I, section 5, clause 2 of the Constitution empowers the Senate to determine its impeachment rules. Prior to 1999, the Senate routinely changed those rules when not sitting on an impeachment trial. It is therefore in order for senators to vote on proposals, such as that offered by Sen. Hawley, to change the rules before a trial begins.”
The only other option for the Senate would be to get all 100 senators to agree to the change. But, if the Senate couldn’t get 67 or 51 senators to agree to do something, it certainly won’t get 100.
What does this all mean? Well, it’s about the math, it’s about the math, it’s about the math.
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The math wouldn’t work to implement Hawley’s proposal. Moreover, “it’s about the math” when it comes to a Senate trial as well – if and when senators receive the articles from the House. If the Senate gets the articles of impeachment – and if McConnell and Senate Minority Leader Chuck Schumer, D-N.Y., are unable to secure an agreement establishing the guardrails for a trial – the usual impeachment rules kick in. “51” will be the important number; 51 votes to dismiss the articles, 51 votes to call or reject witnesses.
As is the case with almost everything on Capitol Hill: the math is paramount – especially in a Senate trial.
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