Criminal justice reform faces a make-or-break moment

A long-stalled criminal justice reform effort is facing a make-or-break moment: winning over President TrumpDonald John TrumpStephen Miller: Trump to further crackdown on illegal immigration if he wins US records 97,000 new COVID-19 cases, shattering daily record Biden leads Trump by 8 points nationally: poll MORE’s support.

A bipartisan group of senators involved in talks has reached a deal to pair a House-passed prison reform bill with a handful of sentencing reform measures, according to two GOP aides. Advocates hope to get legislation to the president’s desk by the end of the year.


But whether the bill can gain the traction it needs among Republicans, who are wary of being viewed as weak on crime, boils down to Trump.

Despite having lukewarm national approval, the president holds enormous sway over his party’s base and congressional Republicans, who have avoided picking a fight with him.

Supporters on and off Capitol Hill are hoping to win his blessing on the legislation in order to overcome a small, but vocal, group of conservative opponents who have dug in and helped poison the chances of passing criminal justice legislation in recent years.

Jason Pye, the vice president of legislative affairs for FreedomWorks, said he felt “pretty good” about the prospects for the Senate compromise legislation, crediting the White House and Trump for keeping the prospects of legislation alive during a heated, and deeply partisan, midterm year.

“I don’t think we would be where we are right now without the White House’s support, particularly the president,” he said. “I think the votes are there ... but it’s unlikely it’s going to come to the floor without the president’s support.”

A GOP aide acknowledged that Trump is the “wildcard” in the criminal justice bill’s chances.

Trump’s verdict on the bill could come as soon as this week, after the issue was kicked to the lame-duck session of Congress.

The aide told The Hill that Trump’s son-in-law and adviser Jared KushnerJared Corey KushnerTrump says ex-staffer who penned 'Anonymous' op-ed should be 'prosecuted' Kushner told Woodward in April Trump was 'getting the country back from the doctors' What a Biden administration should look like MORE, who has been at the center of the Senate negotiations, briefed the president on the agreement Tuesday at the White House.

The White House did not respond to multiple requests for comment.

The deal under discussion would link the House’s prison reform bill with four sentencing provisions, according to draft legislation and bill summaries viewed by The Hill.

The sentencing provisions include reducing lifetime mandatory minimum sentences after two prior felony drug convictions to at least 25 years; reducing minimum sentences after one prior conviction from 20 to 15 years; and making the Fair Sentencing Act retroactive.

It also would expand an existing safety valve for mandatory minimum sentencing that would not apply retroactively.

While one Republican staffer said the group of senators had a deal, a second said that changes were still possible until the bill is formally filed but characterized the legislation as being largely settled among the group of senators.

Underscoring the wariness of getting out ahead of the president, Sen. Chuck GrassleyCharles (Chuck) Ernest GrassleyBarrett confirmation stokes Democrats' fears over ObamaCare On The Money: Power players play chess match on COVID-19 aid | Pelosi bullish, Trump tempers optimism | Analysis: Nearly 1M have run out of jobless benefits Grassley: Voters should be skeptical of Biden's pledge to not raise middle class taxes MORE (R-Iowa), the chairman of the Judiciary Committee, hasn’t formally introduced the legislation — which was negotiated along with Sens. Dick DurbinRichard (Dick) Joseph DurbinDemocrats warn GOP will regret Barrett confirmation Democrats brace for nail-biting finish to Senate battle Democratic Senate emerges as possible hurdle for progressives  MORE (D-Ill.), Mike LeeMichael (Mike) Shumway LeeGeorgia Republican Drew Ferguson tests positive for COVID-19 Trump says ex-staffer who penned 'Anonymous' op-ed should be 'prosecuted' White House to host swearing-in event for Barrett on Monday night MORE (R-Utah) and Lindsey GrahamLindsey Olin GrahamGOP faces fundraising reckoning as Democrats rake in cash The Hill's 12:30 Report - Presented by Facebook - Election night could be a bit messy The Hill's Morning Report - Sponsored by Facebook - Trump, Biden blitz battleground states MORE (R-S.C.) — even as the broad framework has been in place for months.

Republican leadership has refused to move previous criminal justice bills from Grassley and Durbin, even though supporters say they had the votes to pass, in an effort to avoid putting a spotlight on GOP divisions.

And even as chatter of a potential agreement spread, some senators pushed back hard against talk of an agreement, arguing there wasn’t a deal until Trump signs off on the details of the legislation.

“There won’t be any agreement on a criminal justice reform compromise unless and until President Trump supports it and asks the Republicans who control both chambers of Congress to move it forward,” said Emily Hampsten, a spokeswoman for Durbin.

Grassley said on Tuesday night that he had not gotten an update on the White House meeting but that his colleagues sounded “positive” about the bill.

Graham added that he spoke with the president as recently as Monday about the issue. If, and when, Trump gives a thumbs up to the legislation, Grassley is expected to formally introduce the bill almost immediately.

“I talked to the president last night about it. I think now’s the time to do it,” Graham said. “I think the stars have aligned politically and now would be a good time to do it.”

It wouldn’t be the first time a bipartisan group of senators involving Durbin and Graham thought they had an agreement only for it to be quickly killed by Trump and conservatives.

Durbin and Graham went to the White House in January to brief the president on a compromise immigration bill only to find conservatives, including Sen. Tom CottonTom Bryant CottonCotton mocks NY Times over claim of nonpartisanship, promises to submit op-eds as test Barrett fight puts focus on abortion in 2020 election COVID outbreak threatens GOP's Supreme Court plans MORE (R-Ark.), waiting for them at the White House. The proposal quickly unraveled in the face of the showdown, and Congress has failed to pass immigration legislation for months.

Cotton has given no indication that he’s moved on criminal justice legislation. In August, he used a Wall Street Journal op-ed to warn Trump against cutting mandatory minimum sentences for serious crimes or giving judges more discretion to reduce those sentences.

“That foolish approach is not criminal-justice reform—it’s a jailbreak that would endanger communities and undercut President Trump’s campaign promise to restore law and order,” Cotton wrote.

A senior White House official told The Hill at the time that they didn’t believe they needed unanimous support among the Senate Republican conference for the bill to ultimately pass.

Pye added that while there are “some opposing voices” within the caucus, including Cotton, they “do not reflect the sense of the Senate Republicans as a whole,” and said he expects a bill could get more than 70 votes.

Prospects for criminal justice legislation have been steadily gaining steam heading into the lame-duck.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTop Senate GOP super PAC makes final .6M investment in Michigan Senate race On The Money: McConnell says Congress will take up stimulus package at start of 2021 | Lawmakers see better prospects for COVID deal after election Overnight Health Care: House Dem report blasts Trump coronavirus response | Regeneron halts trial of antibody drug in sickest hospitalized patients | McConnell says Congress will take up stimulus package at start of 2021 MORE (R-Ky.) pledged last month that he would give the bill a whip count and that if it has the 60 votes needed to pass — which Senate supporters and outside groups believe it does — he would find time to bring it to the Senate floor.

In a major boost to combat “weak on crime” accusations, the Fraternal Order of Police, the largest law enforcement labor organization in the U.S., endorsed the bill on Friday, crediting Trump and his staff for working with them on the bill. And Kelley Paul, Sen. Rand PaulRandal (Rand) Howard PaulGeorgia Republican Drew Ferguson tests positive for COVID-19 Could Blacks and Hispanics hand Trump a November victory? Trump says ex-staffer who penned 'Anonymous' op-ed should be 'prosecuted' MORE’s (R-Ky.) wife, is lobbying senators this week, including conservatives and female members, to urge them to back the bill and press McConnell to bring it up for a vote.

One final curveball could come from Democrats, who will hold the House majority in the next Congress. Republicans and advocates are hoping Durbin’s involvement, and the difficulty of passing legislation, will quell political jockeying from 2020 White House hopefuls and talk of potentially kicking the legislation into next year, when Democrats will have more leverage.

“That is at the forefront of my mind,” Pye said. “Sen. Durbin is going to be key in convincing House Democrats not to overstep.”

Sen. Amy KlobucharAmy KlobucharFederal appeals court rules Minnesota must separate late-arriving mail-in ballots Trump announces intention to nominate two individuals to serve as FEC members Start focusing on veterans' health before they enlist MORE (D-Minn.) — a potential 2020 candidate — weighed in Tuesday in a tweet, urging lawmakers not to miss the window for passing criminal justice legislation and calling it at an “important opportunity that shouldn’t be lost.”