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Impeachment state of play: Senators know it's coming but what does a trial look like

Posted December 5, 2019 8:08 a.m. EST

— Senators know an impeachment trial is coming. Leaders have held closed-door briefings walking through procedural and technical aspects. The White House is fully engaged with the chamber's 53 Republicans and is forming an aggressive trial operation and defense.

Every senator CNN has talked with has started personal preparations and study in one form or another. Staffers -- from counsel to communicators -- have largely done the same.

And yet in conversations with more than three dozen senators and top aides, nobody has any idea what exactly is about to happen when articles of impeachment land on the Senate floor.

Bottom line:

There's a reason nobody knows what's coming next, but given the enormity of the stakes -- not to mention the moment in history -- the reality that the chamber that could potentially remove a sitting US president from office is sitting in some form of suspended animation is, in the words of one Republican senator: "Bizarre. It's kind of surreal. I don't know, it's just a strange moment."

So how's this all going to work:

We'll get into detail about the options and the possibilities and even what various elements in this process we would like to see. But the answer, as of this moment, was best laid out by Senate Majority Leader Mitch McConnell this week: "There is no answer at the moment."

A 30,000-foot point:

This is stating the obvious, but to reiterate, not a single senator or staffer CNN's Phil Mattingly has spoken to from the group above, Republican or Democrat, thinks President Donald Trump will be removed from office. That would take 20 Republicans joining every senator who caucuses with the Democrats. It's simply not something that's going to happen based on the current dynamics. But that makes the structure (and perceived legitimacy) of any trial all the more significant.

Where the key elements sit at the moment:

Senate Republicans:

For weeks now, Senate Republicans have been meeting during their conference lunches to discuss historical precedents on impeachment and potential ways things could play out. These presentations -- which included an appearance Wednesday from White House counsel Pat Cipollone and two of his deputies -- have been mostly informational, participants said, at times breaking out into smaller legal debates between some of the lawyers in the conference.

A smaller group of Senate Republicans met with Cipollone before Thanksgiving to discuss more detailed strategy. Aides say Sens. Lindsey Graham, Ted Cruz and Mike Lee, all of whom participated in that meeting, are the key players on that front.

Senate Democrats:

Democratic Leader Chuck Schumer gave a presentation to the caucus Wednesday confined to the mechanics of a potential trial. The presentation included video clips from the 1999 trial of Bill Clinton to emphasize specific elements of the process, according to a senior Democratic aide. Individually, Democratic senators are starting to eye Republicans who may be willing to join with them on votes when the trial begins. But so far, no fruitful conversations have taken place about creating any kind of bipartisan coalition, multiple senators and aides told CNN.

"We're kind of circling one another right now," one Democratic senator said of his Republican colleagues. "It's either that or they're just ignoring the Mack truck that's about to slam into all of us."

The White House:

While White House officials have repeatedly told Capitol Hill allies they believe there's no merit to any articles of impeachment, they have shifted firmly into an aggressive posture to defend the President in a future trial. A bolstered communications team, a robust counsel's office and a significant uptick in meetings with GOP senators -- both on the Hill and at the White House -- are all part of the effort to lock in support and prepare for what's to come, aides say. That, most notably, includes the push for witnesses. As Eric Ueland, the White House Director of Legislative Affairs, put it, should the House impeach Trump, "we need witnesses as part of our trial and a full defense of the President on the facts."

An early heads up:

Witnesses -- who they are or whether there will be any at all -- are going to become a major battle, with a potential to turn the trial into a partisan mess.

"This could go off the rails very quickly," one GOP senator said.

"There's every chance someone rolls a hand grenade into the center of this process," a Democratic senator said.

So what's the trial actually going to look like:

There are really three options for how the chamber handles an impeachment trial, laid out by McConnell, in a concise and accurate manner, on Tuesday:

1. The Senate agrees to a bipartisan procedural resolution dictating how things will go.

2. Majority rules. If no bipartisan deal can be reached, McConnell turns toward his conference and sees if he can find 51 of his 53 members to agree to a procedural resolution dictating how things will go. This would be the last thing Democrats would want, and as such serves as a bit of a threat/leverage for McConnell to put out there. But it's a live possibility.

3. A "jump ball." There's no agreement, the Senate takes up the House articles of impeachment, allows the managers and President's defense team both present, then it turns to resolutions offered by any senator to dictate the next steps. If they receive 51 votes, it becomes operative. If it doesn't, it dies.

Which one is it going to be:

McConnell nailed this one, too: "It's impossible to answer your question right now."

Here are the (very few) certainties to this point:

- The White House is now on board with a full Senate trial -- one that would include a robust defense from the President's legal team.

That has been made clear in two closed door meetings -- one with a smaller group of Republican senators before Thanksgiving and one on Wednesday with the entire conference -- between Cipollone and GOP senators, according to participants.

- The reality is the White House doesn't have a choice on the above.

While it would be possible, on a simple majority vote, to pass a resolution to dismiss the trial immediately, they don't have the votes to do it. Period. That has been communicated directly to White House officials from the highest levels of the Senate GOP conference. That message has clearly sunk in given their new trial posture.

- At some point -- though it hasn't happened yet -- McConnell and Schumer will meet.

This hasn't happened yet -- in large part aides say because without an understanding of the scope of any articles of impeachment, it's simply too early to do so. But that will soon change.

- The 2020 Senate legislative calendar, which was finally given to senators Wednesday, left out the month of January entirely.

This doesn't mean the trial will take the whole month of January or that it won't take longer. It just makes official that nobody has any clue what's going to happen in terms of timeline.

What we don't know, at all:

- When, exactly, the trial will take place.

Senators and aides are working under the assumption it will start the first week of January, hence the legislative calendar omission of the month, but nothing is locked in yet.

- How long the trial will take.

Anyone who tells you they know the answer is lying. Most senators and aides predict somewhere between three to six weeks -- and that's based generally on the length of the 1999 trial of President Bill Clinton. But it will be entirely dependent on the structure of the trial, whether they have witnesses, how many witnesses, the format in which those potential witnesses produce testimony and so on. In other words, there are a significant number of variables for which there is not an answer yet.

- Who will testify.

Maybe former Vice President Joe Biden's son, Hunter Biden. Maybe the anonymous whistleblower. Maybe former national security adviser John Bolton. Maybe nobody at all. There simply isn't an answer to this at this point, despite the wish lists of both sides.

-What other motions may be voted on.

McConnell, in his remarks Tuesday, made a key point. Motions aren't confined just to what witnesses may testify. "A motion could encompass almost any suggestion," McConnell said. This opens some very interesting avenues for both sides.

The first big test:

As we've written numerous times, the first big test will be whether McConnell and Schumer can reach an agreement on a resolution dictating the process. This happened in 1999 (after much debate, blowups and near failures), when Sens. Trent Lott and Tom Daschle locked in a process for Clinton's impeachment.

Schumer and McConnell haven't met yet, There's little reason to do so when the shape and scope of the articles of impeachment are still unknown, aides on both sides say. But that meeting (and those that likely will follow) will be significant.

Schumer told reporters this week he hopes the Senate procedure will be a "full" and "open procedure," not something "that's unduly truncated."

"The best way to do something as important and almost as hallowed a procedure as this is in a bipartisan way," Schumer said.

But this is key:

A lot of weight is being placed on the potential McConnell-Schumer resolution -- something that members on both sides acknowledge may not even be possible in the current environment. But it's more complicated than that.

Unless McConnell and Schumer reach an agreement that addresses everything from length to witnesses (the much talked about 1999 Lott-Daschle resolution during Clinton's impeachment trial didn't address witnesses -- those were addressed on party line votes), even that won't necessarily keep the process on a clear path.

Here's why:

Precedent appears to make clear anything not resolved in an initial organizing resolution can be considered, on a simple majority vote basis, as a motion on the Senate floor. In other words, could, as the White House has made clear it wants, Hunter Biden testify? The whistleblower? It's not out of the realm of possibility. It would only take 51 senators to vote for it. Republicans control 53 votes.

Which means this is even more important:

Several Democratic senators are keenly aware of this dynamic, and specifically, this numbers game. So far none have had fruitful conversations with GOP colleagues about creating a "gang" or a group to try and regulate the process. But it's something several predicted would start happening, at least to test the waters.

To put it plainly:

Short of a wide-ranging, global bipartisan resolution dictating the entirety of the process -- witnesses included -- a impeachment trial is a majority rules affair. And Republicans hold the majority.

Of note:

The White House hasn't just made clear they want Hunter Biden and others to testify, but Ueland said Wednesday they want testimony to be in person, on the Senate floor. From a historical perspective, the three witnesses who testified in the Clinton impeachment case gave videotaped depositions -- something that was done at the time to protect the process as an institution. Portions of those depositions were then shown on the floor during the trial.

A little color:

As noted above, senators and staff have all started to dig in on what's about to happen. There are general Senate rules to follow, though they are hardly prescriptive, so people are looking beyond that.

*Sen. John Kennedy says his staff had created a detailed briefing book of past impeachments and precedents he's working through.

*Sen. John Cornyn is doing something similar -- noting earlier this week he was moving through the details of President Andrew Johnson's impeachment.

*A number of Senate staffers and a few senators told me they are reading "The Breach," Peter Baker's book on the Clinton impeachment.

*McConnell said he just read "Impeachment: An American History," written by Jon Meacham, Baker, Timothy Naftali and Jeffrey Engel.

*C-SPAN clips from 1999 are being passed between offices, and the Congressional Record transcripts of the 1999 proceedings are also being read in several offices.

*Sen. James Lankford, an Oklahoma Republican, even released a podcast episode on the process, with guest Alan Frumin, the former Senate Chief Parliamentarian. (It's really informative -- seriously!)

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