All eyes on McConnell as Senate returns Friday

Pelosi, who has declined to send the two articles of impeachment to the Senate until Democrats receive assurances about the structure of the looming trial, hasn’t made any public remarks about her plans.

On Thursday she asked on Twitter: “Why won’t Trump & McConnell allow a fair trial?” But she did not clarify her intentions moving forward.

Even her close allies remained in the dark throughout the holidays, lawmakers and aides said.

It’s a strategy that, at least to this point, has had no effect on McConnell, who has made clear withholding the articles will do little to shift his preferred path for the Senate trial. McConnell has described a trial, in line with the 1999 trial of President Bill Clinton, that would include presentations from the House managers and the President’s defense team, followed by questions from senators, then a decision on whether to vote on witnesses or to acquit the President altogether.

That position has left McConnell at an impasse with Schumer, who has pushed for weeks to include subpoenas for witnesses and documents in an initial resolution laying out the rules of the road for the trial.

Schumer has continued to press McConnell on a near daily basis to allow witnesses, pressure that Democrats hope will extend to other Republicans who would consider joining Democrats in voting for witnesses.

In the last week, Sens. Susan Collins and Lisa Murkowksi, Republican moderates who are always closely watched, both raised concerns about McConnell’s comments regarding his close coordination with the White House counsel’s office. Collins made clear she is “open to witnesses.” But neither explicitly broke from McConnell’s planned path.

But while McConnell preferred trial is only attainable if he has the support of at least 51 senators, whether to start the trial before Pelosi actually sends the articles over to the upper chamber, as some of the President’s allies have called for, is very much in his wheelhouse — and he has no intention of pursuing that path, aides say.

That leaves Trump and his allies uncertain as they eagerly anticipate their metaphorical day in court.

Next steps

On Friday, Trump will enter the third week of his vacation at his south Florida club, where he’s sounded out a plethora of advisers — both formal and more casual — about his next steps.

On New Year’s Eve, Trump suggested he held no position on whether he wanted a trial to proceed — “I don’t really care. It doesn’t matter,” he said — though privately he is eager for vindication from the GOP-controlled Senate, according to aides.

“As far as I’m concerned, I’d be very happy with the trial because we did nothing wrong,” Trump told reporters as he headed into a gala at his club.

White House aides have remained in touch with McConnell’s office during the extended holiday period, and have discussed various procedural measures that could be undertaken in the uncertain period as they await Pelosi’s next move.

McConnell, however, is disinclined to do anything related to the impeachment trial — which he has said he is not in a rush to convene — until Pelosi delivers the articles.

Lost on the legal theories or opinion pieces pushing for McConnell to start the trial unilaterally are the sheer number of complicated procedural steps it would take to actually make that happen, people familiar with the process said. The chamber already has rules dictating impeachment procedures, which require the articles to be transmitted by the House. As such, any effort to start a trial without them would require the chamber to operate outside of those rules — something that would not only require Democratic support, but also a multi-step process to even consider.

It’s a process that, given the steps necessary and where the votes currently stand, would likely set forth wide-ranging, and institution-rattling repercussions, which would include going “nuclear” on the legislative filibuster. In short, aides say, it’s not something that’s being considered.

Instead, as he waits, McConnell is most likely to guide the Senate toward approving various administration nominations and judicial appointments as the impeachment deadlock continues.

McConnell may bring the USMCA trade deal to the floor if there’s a delay of the impeachment trial beyond just a few days, according to a source briefed on the discussions, the latest sign Republicans are ready to charge ahead with their agenda if Trump’s trial remains in limbo. Initially, McConnell had planned to take up USMCA after the Senate trial.

The Senate Finance Committee is already set to vote on the USMCA on Tuesday, teeing up floor action as soon as next week.

The source also said that — at the moment — it appears doubtful McConnell can cut a deal with Schumer over the ground rules of the trial. So the process could look like this: the House votes to name impeachment managers, Pelosi sends over the articles, McConnell moves to set the rules of the trial on a party-line basis. But Pelosi would have to schedule a House vote to name her managers, something she said she won’t do until she understands the Senate process.

When the trial eventually starts, there are expected to be votes on the floor to compel witness testimony and document production. House impeachment managers and Trump’s defense counsels could make motions to hear from witnesses, at which point senators would have to vote. Fifty-one votes would be needed to compel witness testimony and document production, meaning four Republicans would have to break ranks and join 47 Democrats.

Until Pelosi acts, McConnell waits. How long that might last wasn’t clear. Most aides on Capitol Hill and at the White House expected quicker movements next week once lawmakers return to Washington. And almost everyone — at the White House and among both parties on Capitol Hill — said they expected a Senate trial to happen eventually.

Even some Democratic officials conceded it wasn’t tenable for Pelosi to hold the impeachment articles for much longer, though said it would be harmful for McConnell if the Senate trial does not appear fair.

Timing is critical

The timing will nevertheless prove critical. For Democratic senators running for president, a trial will force them to remain in Washington in the weeks leading up to the Iowa caucuses.

Trump, meanwhile, has already been filling his calendar: a China trade deal signing on January 15, foreign travel the third week of January to the World Economic Forum in Davos and his annual State of the Union address on February 4.

That speech is already proving a focal point for some White House aides, who privately wonder whether Pelosi is holding off on sending the impeachment articles until after the State of the Union to deprive Trump of a victory lap in the House chamber after being vindicated in the Senate.

Trump is growing anxious about the state of limbo and wants the trial to start quickly, his advisers say.

“All options are being reviewed,” one person familiar with the matter said, suggesting there was little belief the state of uncertainty would last in perpetuity: “This isn’t going forever.”

The President’s legal advisers have held off making firm decisions about how to handle the Senate trial until more details are known about how it might proceed. White House counsel Pat Cipollone — who did not travel to Florida with Trump — is still expected to lead the President’s defense, along with the help of his deputies, with private counsel led by Jay Sekulow playing a more limited role.

There are still discussions about House Republican allies playing a role during the trial, as well as renowned defense attorney Alan Dershowitz, who was spotted chatting with Trump at Mar-a-Lago on Christmas Eve.

As of now, there aren’t plans for former congressman Trey Gowdy to join the President’s defense team, though he did golf with the President over the weekend.

Later, appearing on Fox News, Gowdy brushed off a question about whether he planned to join the President’s legal team: “The President has got great lawyers and more importantly than having great lawyers, he’s got great facts.”