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Uncertain path of Senate trial underscored by chamber's rules and precedent

Posted January 14, 2021 3:48 p.m. EST

— The House vote to impeach President Donald Trump, historic as it was, has created a series of complicated questions for the looming Senate trial -- nearly all of which will have repercussions for the opening days of incoming President Joe Biden.

It's something Democratic senators and aides say they're keenly aware of as they've worked through possible scenarios -- keeping Biden's team in the loop each step of the way.

Biden himself called current Senate Majority Leader Mitch McConnell on Monday in an effort to attempt to map a path forward that allows his administration to start its work -- both nominations and potential stimulus legislation -- as soon as possible.

The stakes are enormous and will dictate how quickly Biden gets his team in place, as well as whether he and his new Senate majority can launch what are expected to be legislative efforts.

"I hope that the Senate leadership will find a way to deal with their Constitutional responsibilities on impeachment while also working on the other urgent business of this nation," Biden said in a statement following the impeachment vote Wednesday night, alluding to his desire to "bifurcate" the process in the upper chamber.

The ability to solidify doing two things at once weighs heavily on what comes next. As McConnell made clear in a statement Wednesday, Senate trials have historically not been short.

"The Senate has held three presidential impeachment trials," McConnell said. "They have lasted 83 days, 37 days, and 21 days respectively."

While Democrats have been eying a tighter timeline, no final decisions have been announced -- either on how the trial will play out or when one will begin.

But past trials underscore the complicated balancing act that lawmakers are grappling with. Running through previous trials provide a guide, but with the caveat that everyone involved is attempting to work through alternatives. That said, this, based on those past trials, is what lawmakers are facing at the moment.

Step one: Sending over the articles

House Speaker Nancy Pelosi has not outlined when the articles will be walked over to the US Senate. That's not a symbolic action -- it's a trigger, based on the Senate rules of an impeachment trial.

Should Pelosi and the impeachment managers choose to send the articles to the Senate before or upon the chamber's return Tuesday, it would immediately set into motion a series of events that would not only lock up the chamber's schedule, but also potentially Biden's options in his first days in office.

Once the message reaches the Senate, the secretary of the Senate informs the House that the chamber is ready to receive the managers. In Trump's first impeachment trial, the Senate instructed the House managers to exhibit the articles the next day.

If that happened this time around, the trial would begin on January 20 -- Biden's Inauguration Day. If that isn't the agreed upon pathway this time around, the exhibition of the article, which entails reading it aloud on the Senate floor, would happen later than that.

As of Thursday, House Democrats close to the impeachment process still did not have clarity on when the impeachment article would be sent to the Senate. The talks, they said, were still ongoing as top Democratic Sen. Chuck Schumer continued to work with Republicans to see if they could agree on when to start the trial and whether Republicans would agree to spend mornings on Biden nominations.

Starting the trial

In the two prior impeachments, the Senate agreed to start the trial immediately after the exhibition of the articles. That would trigger the invitation to Chief Justice John Roberts to arrive at an agreed upon time to be sworn in to preside over the trial.

Roberts, of course, plays a central role in the swearing in of the President on Inauguration Day, though the rules allow for the Senate's president pro tempore to be used in the role if Roberts is absent.

Shortly thereafter, the senators themselves would be sworn in, and Trump or his team would be summoned to appear before the chamber to answer to the article of impeachment. Then preparations would be ordered to begin for the trial.

If the articles were sent Tuesday or before, all of this could be required to occur as inauguration is playing out or shortly thereafter.

Once the trial begins, it gavels into session at 12 p.m. ET every day that follows, save for Sundays, until completion.

It's the period before 12 p.m. that is currently being examined as an option for other Senate business. Once the trial starts on any given day, it is the only business of the Senate that can occur.

There is a clear effort underway to give Biden an opportunity to move forward on his nominees and agenda items during the morning.

Schumer has been working with Republicans to try and see if an agreement could be made to allow Biden to work through nominees in the morning and then turn to an impeachment trial in the afternoons.

"We are working with Republicans to try to find a path forward," Schumer's spokesman told CNN on Thursday.

Sen. Kirsten Gillibrand, a New York Democrat, said on CNN Thursday that Democrats would push to be able to address Biden's legislative and nominee agenda while working through the trial.

"We certainly stand ready to do both at the same time," Gillibrand said in an interview with CNN's Kate Bolduan.

McConnell, in his call with Biden, said he would talk to the Senate parliamentarian about what is possible in terms of making this happen. Technical questions abound, including whether any such action would require consent from all 100 senators. But the Senate always maintains the power to set its own rules -- a fact Biden is leaning on to open the door to pretrial action on his agenda.

Whether that can and will be utilized in this, the second impeachment trial of Trump, will go a long way to determining how quickly Biden can not only have his team in place, but also whether he can kick-start his ambitious stimulus and recovery legislative agenda.

How long the trial goes

This is another question we don't have an answer for right now. A lot will depend on what House managers aim to accomplish with the trial. Do they seek additional witnesses or evidence? All of that takes time.

Democratic senators are keenly aware that while they would like to proceed quickly to ensure Biden can move ahead with his own agenda, they don't want to speed up a trial so much that it sets a precedent.

Democrats were outraged when Republicans didn't allow witnesses in the Trump's first impeachment trial. Once the second trial begins, Schumer and other Democrats will have full control over how to run the show. Nothing can be filibustered once the trial begins, meaning you need only a simple majority to make decisions about witnesses, when to vote on conviction, etc.

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