Given that many Republicans oppose persecution or believe it is not even constitutional once Trump leaves office, it can be difficult to get the cooperation that Biden needs to handle a lawsuit along with cabinet confirmations and begin to work on a new coronavirus stimulus proposal. Biden and Democrats say it is crucial to cut a deal that does both, but a single senator can disrupt any effort to multitask.
All of this presents an even greater degree of difficulty for Biden’s cabinet and early legislative priorities to pass the Senate in his critical first few days in office.
“We are working with Republicans to try to find a way forward,”
Senate Minority Whip Dick Durbin (D-Ill.) Told MSNBC Thursday that he spoke to Schumer that morning and that “there has been no exchange or conversation with Senator McConnell about setting a specific time to begin the trial.”
And there is already concern that Biden will be hampered in his early days. Senator Joe Manchin (DW.Va.), a centrist who supports sentencing Trump, said a lawsuit “hinders the first or two weeks that should basically be dedicated to putting our government back in place.” He had hoped that Parliament could possibly give the Senate at least a month “until we had our government running again.”
But House Speaker Nancy Pelosi is unlikely to wait until after Biden’s inauguration to trigger the start of the trial by formally handing over the prosecution article to the Senate. Pelosi has been close to precise timing, but her top lieutenants spent the last few days stressing the urgency of moving the process to the Senate as soon as possible. Democrats had wanted McConnell to bring the Senate back this week to begin the trial in earnest, but McConnell declined their request.
“To choose between holding those responsible accountable for attacking our democracy in the US Capitol on the one hand and getting the work done for the people around Covid relief? It is a false choice, ”said Senator Tina Smith (D-Minn.). “We have to do all these things.”
Schumer and McConnell could also be faced with a procedural mess even after the trial begins. Control of the Senate must return in the middle of the trial once Biden and Harris are inaugurated and Georgia’s two newly elected Democratic senators, Jon Ossoff and Raphael Warnock, are sworn in. Simultaneously with the creation of the trial, Schumer will have to work out the road rules for a 50-50 Senate with McConnell.
With the split of Senate and Supreme Court Justice John Roberts in charge of the trial, biased votes in the Senate could also lead to stalemate. Last year, both sides tried to avoid enabling Roberts to break the tie.
Some Republican senators have even questioned the Senate’s constitutional authority to put a former president on trial.
“The founders designed the indictment process as a way to remove office holders from the public office – not an investigation against private citizens,” said Senator Tom Cotton (R-Ark.). “The Constitution presupposes an office from which an accused official can be removed.”
There are signs that Biden is worried about the upcoming trial and its impact on his first 100 days in office. Earlier this week, the president-elect said he hopes the Senate can “split” during the trial and “go half a day with the indictment and half a day to get my people nominated and confirmed in the Senate as well as move on to [Covid-19 relief] package.”
And in a statement from House House prosecutors Wednesday night, Biden indicated he supports efforts to hold Trump accountable for the deadly Capitol riots, but said the Senate should not abandon its cabinet confirmations and other legislative priorities like Covid-19 relief.
“This nation also remains in the grip of a deadly virus and a booming economy,” Biden said. “I hope the Senate leadership finds a way to deal with their constitutional responsibilities by accusation while working on the other urgent business in this nation.”
Biden can enter the office with none of his cabinet candidates confirmed by the Senate, who are typically considering a future presidential election before the inauguration. That makes the opening day of his presidency even more critical.
Biden specifically identified Homeland Security, State, Defense, Treasury and intelligence chief positions as his top priorities. Senate committees will meet in the coming days to hold affirmative hearings for these and other cabinet positions.
Senator Rob Portman (R-Ohio), the top Republican on the Homeland Security panel, said Wednesday night that Biden “rightly said he will set a new tone with greater unity when his administration begins.” We must all be concerned about the polarization of our country and work towards bringing people together. ”
But if Trump’s second trial works as his first, it’s going to be so much harder to turn the page on Biden. Republicans are already complaining that Parliament did not grant Trump “due process” – suggesting the Senate could be in a slump.
“I have spent the last two days interviewing five Biden nominees for the Cabinet, and I want to get into the serious business of legislating and forming a new administration that we can work with,” said Senator Kevin Cramer (RN.D. .) about CNBC. “Do not continue to work against, which is what I fear will happen if we continue with these theatrical accusations.”
Ben Leonard, Marianne LeVine and Anthony Adragna contributed to this report.