Outgoing Senate Majority Leader Mitch McConnell (R-Ky.) on Friday circulated to colleagues a memo outlining the procedure for holding another trial for President Trump if the House impeaches him for a second time in just over a year.
The document, which was first reported by The Washington Post, lays out how the Senate would proceed if the House approves articles of impeachment and transmits them to the upper chamber before or by Jan. 19, when senators are scheduled to resume regular business after the January recess.
McConnell says the most likely scenario if the House impeaches Trump in his final 12 days in office is for the Senate to receive a message from the lower chamber notifying it of the action on Jan. 19. That would then give the Senate the option of ordering the House managers to present those articles on the same day.
Senate Impeachment Rules require that at 1 p.m. on the day after the managers exhibit the articles, the Senate “must proceed to their consideration,” the memo states.
As a result, the Senate trial would not begin until one hour after President-elect Joe Biden takes the oath of office.
“The Senate trial would therefore begin after President Trump’s term has expired – either one hour after its expiration on Jan. 20, or twenty-five hours after its expiration on Jan. 21,” the memo states.
The document was confirmed by a source familiar with its contents.
McConnell’s memo notes that the Senate, which is scheduled to hold pro-forma sessions until Jan. 19, the day before Biden is to take the oath of office, cannot conduct any business during those pro-forma meetings without unanimous consent.
The GOP leader notes that would preclude the Senate from acting on any articles of impeachment received from the House until Biden is president, raising an implicit question about the point of such an exercise.
“It would require the consent of all 100 senators to conduct any business of any kind during the scheduled pro forma sessions prior to January 19, and therefore the consent of all 100 senators to begin acting on any articles of impeachment during those sessions,” the memo states.
The document notes the Senate “can receive a message announcing that the House has impeached the President” while the Senate is in recess, but the Secretary of the Senate wouldn’t notify the chamber of the message until the next regular session, which is scheduled for Jan. 19.
What’s unclear is whether Chief Justice John Roberts would preside over the trial because Trump will no longer be president of the United States at 1 p.m. Jan. 20, the earliest a trial could start without consent from all 100 senators.
The Senate impeachment rules state that unless the Senate orders otherwise, once the trial has commenced, the Senate “shall continue in session from day to day (Sundays excepted) … until final judgment shall be rendered,” according to McConnell’s memo.
Two Republican senators on Friday indicated they might support new articles of impeachment against Trump for his incitement of Wednesday’s riot at the Capitol.
Sen. Ben Sasse (R-Neb.) told “CBS This Morning” that he would consider whatever the House sends to the Senate.
“If they come together and have a process, I will definitely consider whatever articles they might move, because as I told you I believe the president has disregarded his oath of office,” Sasse said.
“He swore an oath to the American people to preserve, protect and defend the Constitution. He acted against that,” he added. “What he did was wicked.”
Sen. Lisa Murkowski (R-Alaska) told the Anchorage Daily News Friday that Trump should resign.
“I want him to resign. I want him out. He has caused enough damage,” she said.
Murkowski said Trump only wants to stay in office “for the title” and has largely given up on governing.
“I think he should leave. He said he’s not going to show up. He’s not going to appear … at the inauguration. He hasn’t been focused on what is going on with COVID. He’s either been golfing or he’s been inside the Oval Office fuming and throwing every single person who has been loyal and faithful under the bus, starting with the vice president,” she said.
It would require a vote of two-thirds of the Senate or 67 senators — if all are present — to remove Trump from office before Jan. 20. That means at least 17 senators would have to vote with all 50 members of the Senate Democratic caucus for a conviction.
The Hill has reached out to McConnell’s office for comment.
Jordain Carney contributed.
Updated: 10:45 p.m.