Senate braces for brawl on Trump impeachment rules

Senators are bracing for a partisan brawl over the rules of President TrumpDonald TrumpKinzinger says Trump 'winning' because so many Republicans 'have remained silent' Our remote warfare counterterrorism strategy is more risk than reward Far-right rally draws small crowd, large police presence at Capitol MORE's looming impeachment trial.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnell'Justice for J6' rally puts GOP in awkward spot Republicans keep distance from 'Justice for J6' rally House to act on debt ceiling next week MORE (R-Ky.) and Minority Leader Charles SchumerChuck SchumerBiden discusses agenda with Schumer, Pelosi ahead of pivotal week CEOs urge Congress to raise debt limit or risk 'avoidable crisis' If .5 trillion 'infrastructure' bill fails, it's bye-bye for an increasingly unpopular Biden MORE (D-N.Y.) will try to negotiate a deal on ground rules, similar to the arrangement made before the 1999 trial of then-President Clinton.

Talks haven’t started yet as lawmakers wait for the House to write and vote on any articles of impeachment. But senators, pointing to the increasingly partisan atmosphere in the chamber, are skeptical the two leaders will reach an accord.

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“All it takes is an agreement, but obviously the track record of Republicans and Democrats coming together lately has not been great, but even if Democrats don’t cooperate, 51 senators can pass a resolution controlling the process,” said Sen. John CornynJohn CornynDemocrats make case to Senate parliamentarian for 8 million green cards Democrats to make pitch Friday for pathway to citizenship in spending bill Without major changes, more Americans could be victims of online crime MORE (R-Texas), a top adviser to McConnell.

Sen. Ron JohnsonRonald (Ron) Harold JohnsonDomestic extremists return to the Capitol GOP senator: Buying Treasury bonds 'foolish' amid standoff over debt ceiling, taxes Internal poll shows Barnes with 29-point lead in Wisconsin Democratic Senate primary MORE (R-Wis.), asked about the chances of a deal, replied drolly: “Well, we’re doing all kinds of good bipartisan stuff now, aren’t we?”

“There’s a level of comity here that would certainly indicate that that’s not very probable,” he added.

Sen. Rick Scott (R-Fla.) added that he would be “surprised” if the Senate leaders clinch an agreement.

“There hasn’t been a deal on anything else this year,” Scott said. “I just don’t see much cooperation right now.”

There’s precedent for Senate leaders reaching an agreement during previous impeachment trials. The chamber passed a resolution 100-0 during the Clinton impeachment trial establishing the procedure for filing motions, how long senators would get to ask questions and how witnesses would be called.

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But a second resolution that allowed for subpoenas for key figures such as Monica Lewinsky, Sidney Blumenthal and Vernon Jordan Jr. to testify as part of the trial broke down along party lines.

Sen. Kevin CramerKevin John CramerThe Memo: Biden beats Trump again — this time in the Senate The 19 GOP senators who voted for the T infrastructure bill Republicans unveil bill to ban federal funding of critical race theory MORE (R-N.D.) predicted that with the House eyeing a vote on impeachment articles before Christmas, leaders could get an agreement on not starting a Senate trial during the holiday — but not much else.

“I would think it would be easy to get unanimous consent on not starting before Christmas, other than that I think it will be challenging,” he said.

McConnell has repeatedly referred to the Clinton impeachment trial as he’s fielded questions about what a Trump trial would look like. GOP senators say they’re using the 1999 proceedings as a rough guidebook as many of them prepare to go through impeachment for the first time.

Asked last week about the process for a Trump trial, McConnell noted that he would first try to reach an agreement with Schumer but stopped short of saying that would be his preferred way to set up the rules.

“Well, it will depend on what we could agree to,” he said.

Senators say they hope the two leaders can reach a deal on at least some basic guardrails for a trial, including its length.

“I’d say here, there might be some low-hanging fruit where they agree to. Hopefully that will occur to keep the process moving,” said Sen. Mike BraunMichael BraunRepublicans unveil bill to ban federal funding of critical race theory Earmarks, the swamp's favorite tool, return to Washington Senate in talks to quickly pass infrastructure bill MORE (R-Ind.).

Sen. Lindsey GrahamLindsey Olin GrahamThe Hill's Morning Report - Presented by National Industries for the Blind - Tight security for Capitol rally; Biden agenda slows Trump offers sympathy for those charged with Jan. 6 offenses Lindsey Graham: Police need 'to take a firm line' with Sept. 18 rally attendees MORE (R-S.C.), one of Trump’s closest allies in the Senate, put the odds of a McConnell-Schumer deal at “50-50.”

“I think it’s in everybody’s interest to have an orderly process in the Senate if it gets here, to have a process that is controllable, that doesn’t get off the rails, that’s respectful of the event, that has adequate time to consider things but an ending point,” he said.

Sen. Chris MurphyChristopher (Chris) Scott MurphySenators slow Biden with holds at Pentagon, State Tell our troops: 'Your sacrifice wasn't in vain' Sunday shows preview: Bombing in Kabul delivers blow to evacuation effort; US orders strikes on ISIS-K MORE (D-Conn.), asked about the chances of a deal, predicted it would be difficult but added it’s hard to pre-judge since the House hasn’t yet passed articles of impeachment. How broadly the House drafts its articles, what the articles are and how many there are, will all likely influence how long a trial lasts and what witnesses need to be called.

“It was hard to get an agreement ... back in the Clinton impeachment, so it will probably be very hard this time around. But again, I sort of think we have to wait to see what we’re dealing with. It’s hard to know what negotiations are going to look like,” Murphy said.

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If McConnell and Schumer can’t secure a deal, that leaves two backup options: passing GOP-only rules, which some Republicans say they are willing to do, or a free-for-all on the Senate floor where whatever can get 51 votes is adopted.

Republicans would have little room for error if they decided to try to craft their own rules package. With a 53-47 majority, they could only lose two GOP senators from a wide-ranging caucus that runs from more libertarian-minded lawmakers like Sens. Rand PaulRandal (Rand) Howard PaulSenate lawmakers let frustration show with Blinken Rand Paul: 'Hatred for Trump' blocking research into ivermectin as COVID-19 treatment Masks and vaccines: What price freedom? MORE (R-Ky.) and Mike LeeMichael (Mike) Shumway LeeEconomy adds just 235K jobs in August as delta hammers growth Lawmakers flooded with calls for help on Afghanistan exit Afghanistan fiasco proves we didn't leave soon enough MORE (R-Utah) to moderates such as Sens. Susan CollinsSusan Margaret CollinsWelcome to ground zero of climate chaos A tale of two chambers: Trump's power holds in House, wanes in Senate Bipartisan blip: Infrastructure deal is last of its kind without systemic change MORE (R-Maine) and Lisa MurkowskiLisa Ann MurkowskiEmboldened Trump takes aim at GOP foes The Hill's 12:30 Report - Presented by Facebook - DC prepares for Saturday of festivals & Jan. 6 demonstration Republican leaders misjudged Jan. 6 committee MORE (R-Alaska).

Normally McConnell would be able to lose three GOP senators and still get a majority by letting Vice President Pence preside over the Senate and break a 50-50 tie. But with Chief Justice John Roberts, not Pence, presiding over an impeachment trial, the GOP leader would need 51 votes from only senators. 

Cramer noted that he could see Schumer and McConnell agreeing to a basic framework for what time the trial starts each day, but that it also wasn’t guaranteed Republicans could get 51 votes for “substantive” rules ahead of time.

“It’s hard to see me to see any substantive things ... being agreed to in advance. Maybe on a vote of 51-49 ... but only 50 of us voted to condemn the process over in the House, so 51 is not a layup,” he said, referring to Graham’s resolution condemning the House impeachment process.

Johnson said he would be willing for Republicans to go it alone on a rules package, arguing party line is “the way it’s been in the House. This would provide some measure of balance” for the president.

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But pressed if he thought GOP leadership could hold together 51 votes, Johnson acknowledged that it “might be a challenge.”

“My guess is we’ll proceed to motions where we think we can win them. ... For all I know the only motion that we’ll be able to win on is let’s call a vote,” he said.

If Republicans aren’t able to agree, senators say it would result in a roller coaster on the Senate floor, where coalitions that could put together 51 votes would effectively get to set the process. In a chamber with moderate coalitions in both parties, that could throw in a curveball if senators break ranks.

Sen. Roy BluntRoy Dean BluntGOP hopes spending traps derail Biden agenda A tale of two chambers: Trump's power holds in House, wanes in Senate The Hill's Morning Report - Presented by AT&T - Senate passes infrastructure bill, budget resolution; Cuomo resigns MORE (R-Mo.), a member of GOP leadership, said the free-for-all where senators make and vote on their own motions is viewed as the least desirable outcome and a McConnell-Schumer deal would be the best end result.  

“We would just head down the ... path in the rules and then as people wanted to suggest changes almost maybe in progress they could do that, but I think that would be the least preferable of all of the options,” Blunt said.

Cramer also added that letting senators set the rules in real time on the Senate floor would be unwieldy, particularly in a chamber were only 15 senators currently serving were around for the Clinton trial.

“[That] sounds rather chaotic to me,” he said. “Not that I couldn’t enjoy that, I did serve in the House, but that sounds like a little bit chaotic to me.”