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State of play: Impeachment trial date will give more time to confirm Biden Cabinet

Posted January 23, 2021 8:30 a.m. EST

— The Senate will in the coming weeks begin an impeachment trial to decide whether to convict former President Donald Trump for inciting an insurrection at the Capitol, but Democrats will have time before it gets underway to confirm more Cabinet nominees to help the Biden administration get up and running.

The House will send the article of impeachment to the Senate on Monday. That would typically trigger a process for a trial to start the next day, but Senate Majority Leader Chuck Schumer announced Friday evening that instead the trial will begin the week of February 8.

"Once the briefs are drafted, presentation by the parties will commence the week of February the 8th," Schumer said on the Senate floor, adding, "The January 6th insurrection at the Capitol incited by Donald J. Trump was a day none of us will ever forget."

Democrats and Republicans both had incentives to push back trial

There were incentives on both sides to push back the start of the trial. Biden suggested earlier in the day on Friday that it could be helpful to his administration to have more time prior to the start of a trial. "The more time we have to get up and running and meet these crises, the better," he said.

McConnell, meanwhile, has proposed that the Senate give Trump's legal team two weeks to prepare for a trial once the Senate receives the article and delay its start until mid-February.

A later start date will mean more time for Democrats to confirm Cabinet officials and will allow more time for preparations for the former President's legal defense.

Republicans signal acquittal likely

A number of Republicans have been sharply critical about the proceedings -- and have already made clear that they see virtually no chance that at least 17 Republicans would join with 50 Democrats to convict Trump and also bar him from ever running from office again.

"I don't know what the vote will be but I think the chance of two-thirds is nil," said Sen. John Cornyn, a Texas Republican and member of his party's leadership who called the Democratic push to begin the trial "vindictive."

The GOP arguments are now coming into sharper focus, claiming the proceedings are unconstitutional to try a former President and contending that the trial is moving on too short of a time frame to give due process to Trump, claims that Democrats resoundingly reject.

Those arguments, Republicans believe, will allow them a way out of convicting Trump without endorsing his conduct in the run up to the deadly mob that ransacked the Capitol on January 6. McConnell is likely to land in the same spot as much of his conference, GOP senators believe, although the Republican leader has said he would listen to the arguments first before deciding how to vote.

What we know about Trump's legal team

It's not yet clear exactly what defense will be presented on the former President's behalf, but it appears Trump now has at least one lawyer for the trial.

Trump's campaign spokesman, Jason Miller, confirmed on Twitter on Thursday that South Carolina lawyer Butch Bowers will represent Trump at his impeachment trial. "Excited to announce that Columbia, SC-based Butch Bowers has joined President Trump's legal team. Butch is well respected by both Republicans and Democrats and will do an excellent job defending President Trump," Miller tweeted.

Sen. Lindsey Graham, a South Carolina Republican and ally of the former President, told reporters that he would urge Trump's legal team to "focus on the unconstitutional argument" that a former president cannot be convicted by the Senate.

"They didn't present any evidence in the House, so I don't know if you can present evidence in the Senate that you didn't present -- I guess you could -- but we'll make our own decisions about did the President go too far, was this incitement under the law, what's the right outcome there? So it should be a quick trial really, quite frankly," Graham said.

Is it constitutional to impeach a former president?

Given the limited language in the Constitution on impeachment, legal experts disagree about whether the Senate can convict a former president. However, with Democrats holding slim control of the Senate, there's no reason to think the trial won't go forward.

But Democrats have pointed to legal scholars on both ends of the political spectrum who say a trial is constitutional. Legal analysts say there's precedent for a Senate impeachment trial of a former official, as the Senate tried Secretary of War William Belknap in 1876 after he resigned just before the House voted to impeach him.

A January 15 Congressional Research Service report notes that while the Constitution "does not directly address" the issue, most scholars have concluded that Congress does have the authority to impeach and convict a former President.

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