Uncertainty hangs over Trump impeachment trial

President TrumpDonald John TrumpSanders says he wouldn't 'drop dead' if Trump decided on universal healthcare Overnight Health Care: Trump officials lay groundwork for May reopening | Democrats ramp up talks with Mnuchin on next relief deal | Fauci says death toll could be around 60,000 Hillicon Valley: State officials push for more election funds | Coronavirus surveillance concerns ramp up pressure for privacy bill | Senators warned not to use Zoom | Agencies ask FCC to revoke China Telecom's license MORE’s upcoming impeachment trial is mired in uncertainty as Washington heads into a two-week holiday stretch.

The inability to get even the basic outline of an agreement has left senators wondering when, or if, the next phase of the proceedings will begin. The Senate is out until Jan. 3, and the House returns four days later, keeping trial deliberations stuck in limbo until at least the second week of the new year.

Lawmakers left the Capitol this week largely in the dark about what the start of 2020 would look like, after a decision by House Democrats to delay transmitting the articles to the Senate threw a curveball into the impeachment timeline.

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When asked what he was expecting for January, Sen. Roy BluntRoy Dean BluntSenators, bipartisan state officials press Congress for more election funds Democrats ramp up talks with Mnuchin on next COVID-19 relief deal Voting rights group pushes steps to protect voters during coronavirus pandemic MORE (Mo.), the No. 4 Republican, turned the question back on reporters and asked them if Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe Hill's Coronavirus Report: Former Trump advisor Bossert says to test the well, not ill; Senate standoff on next relief bill McCarthy slams Democrats on funding for mail-in balloting Harris, Ocasio-Cortez among Democrats calling for recurring direct payments in fourth coronavirus bill MORE (R-Ky.) and Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerHarris, Ocasio-Cortez among Democrats calling for recurring direct payments in fourth coronavirus bill House Republicans, key administration officials push for additional funding for coronavirus small business loans Rep. Massie threatens to block next relief bill, calls for remote voting MORE (D-N.Y.) had an agreement on aspects of the trial like witnesses and evidence. 

“I don’t think we have any guidance on that,” he added.

Under Senate rules, an impeachment trial starts the day after the House transmits the articles to the chamber, unless that day is a Sunday. But after days of behind-the-scenes negotiations, Speaker Nancy PelosiNancy PelosiPelosi calls for investigation into reports of mistreatment of pregnant women in DHS custody Wisconsin highlights why states need a bipartisan plan that doesn't include Democrats federalizing elections Pelosi defends push for mail-in voting: GOP 'afraid' to let people vote MORE (D-Calif.) declined to say when the articles would be handed over to the Senate, citing concerns that McConnell would not hold a “fair” trial.

Some congressional Democrats went a step further, suggesting the House should never hand over the articles, effectively cutting off the second phase of the impeachment process.

“If you have a pre-ordained outcome that’s negative to your actions, why walk into it? I’d much rather not take that chance,” House Majority Whip James Clyburn (D-S.C.) said during an interview on CNN. 

Democrats are hoping the delay tactic helps exert leverage and keep the focus on McConnell, who has emerged as a top antagonist for the party ahead of next year’s elections. 

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But Pelosi’s decision has divided Democrats, with some rallying to her side and others questioning the strategy. 

Sen. Chris MurphyChristopher (Chris) Scott MurphyTwo Democrats roll out bill to protect inspectors general from politically motivated firing Zoom, grocery delivery, self-isolation: How lawmakers are surviving coronavirus Coronavirus watch: Where the virus is spiking across the country MORE (D-Conn.) urged the Speaker to send the articles over “sooner rather than later,” and told MSNBC that talk of not sending over the articles at all was a “terrible idea.” 

“We have to come to a decision in the Senate as to how we’re going to structure this trial, and I think that’s really a decision the Senate has to come to. I understand the House may want to have impact on that decision, but it ultimately is our constitutional responsibility,” Murphy added.  

Sen. Christopher CoonsChristopher (Chris) Andrew CoonsHillicon Valley: State officials push for more election funds | Coronavirus surveillance concerns ramp up pressure for privacy bill | Senators warned not to use Zoom | Agencies ask FCC to revoke China Telecom's license Senators, bipartisan state officials press Congress for more election funds Bipartisan senators call on China to close all wet markets MORE (D-Del.) warned that if Pelosi is trying to force McConnell to agree to a “fair” trial, “it may be a long wait.”

The approach simultaneously flummoxed and enraged Republicans, with McConnell shrugging it off even as Trump and his top allies on Capitol Hill demanded the president get his shot at being acquitted by the Senate. With Republicans holding a 53-47 majority in the chamber, and 67 votes required to convict a president, the outcome of the trial is all but guaranteed.

McConnell has said the Senate will hold its first votes of 2020 on Jan. 6, but gave no indication about when he thinks a potential trial might commence.

“Frankly, I’m not anxious to have the trial,” McConnell told reporters. “If she thinks her case is so weak she doesn’t want to send it over, throw me into that briar patch.”

The latest injection of partisan fighting between the two chambers highlights one part of Trump’s impeachment that is unique. Though he’s the third president to be impeached, it’s the first time the House and Senate are controlled by different parties during impeachment, helping raise the level of political acrimony on Capitol Hill.

In addition to questions about when the House will send over the articles, negotiations over the details of the trial are at a stalemate.

During the Clinton trial in 1999, the Senate passed two resolutions. In a 100-0 vote, senators agreed on the timeline for the trial and basic ground rules. In a second resolution that broke down along party lines, they agreed to subpoena three witnesses for closed-door depositions. 

But Senate leaders this time around have kicked any talk of a deal on trial procedure until after the recess following days of partisan snipping about potential witnesses and whether to pass one resolution or two. What, if anything, will change that dynamic over the break is unclear. Schumer, pressed on that point, sidestepped, telling reporters: “Merry Christmas and a happy new year, one and all.” 

McConnell described the talks as “at an impasse” and accused Schumer of trying to create different rules for Trump compared to those for former President Clinton. McConnell wants to pass two resolutions — one on process and potentially a second calling witnesses — while Schumer wants one resolution at the outset of a trial that deals with both. 

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Republicans are weighing the possibility of a trial with no witnesses, something McConnell has publicly endorsed. But Democrats want at least four, including former national security adviser John BoltonJohn BoltonChina sees chance to expand global influence amid pandemic Trump ignores science at our peril Bolton defends decision to shutter NSC pandemic office MORE and acting White House chief of staff Mick MulvaneyMick MulvaneyOne year in, Democrats frustrated by fight for Trump tax returns Meadows joins White House in crisis mode Meadows resigns from Congress, heads to White House MORE, as well as documents related to the delay in U.S. aid to Ukraine that was at the center of the House impeachment inquiry.

“To my Republican colleagues, our message is a simple one. Democrats want a fair trial that examines the relevant facts. We want a fair trial. The message from Leader McConnell, at the moment, is that he has no intention of conducting a fair trial, no intention of acting impartially, no intention of getting the facts,” Schumer said on the Senate floor. 

Democrats would need at least four Republicans to side with them on the Senate floor to call witnesses if McConnell and Schumer do not reach a broader deal. They would also need at least three Republicans to join with them and block any GOP effort to move on to voting on the articles of impeachment without calling witnesses. A 50-50 tie in a trial, where Vice President Pence cannot break a tie, would result in a motion failing. 

GOP senators viewed as potential swing votes on trial rules have been tightlipped about whether they want to hear from witnesses as part of the proceedings, instead urging Schumer and McConnell to make a deal.

“They’re still going to be working on it. That’s what we’re encouraging them to do,” said Sen. Lisa MurkowskiLisa Ann MurkowskiHouse Republicans threaten pushback on Saudi Arabia amid oil market slump Zoom, grocery delivery, self-isolation: How lawmakers are surviving coronavirus Lawmakers announce legislation to fund government purchases of oil MORE (R-Alaska), viewed as a key vote.

Sen. John ThuneJohn Randolph ThuneDurbin: Bringing senators back in two weeks would be 'dangerous and risky' Trump's magical thinking won't stop the coronavirus pandemic Lawmakers brace for more coronavirus legislation after trillion bill MORE (R-S.D.) acknowledged that the impeachment trial’s majority rules dynamic — except on the vote to convict or acquit — injects an extra layer of suspense into the Senate deliberations.

“It’s hard to predict that at this point,” Thune said about witnesses. “I don’t know … where our members, all of our members, are going to come down.”