An impeachment trial could cast a shadow over Biden’s unity message and distract the Senate from beginning to implement his agenda, Biden advisers reportedly fear.
But there’s no reason to assume this is necessarily such a big problem.
Biden has taken new steps toward dealing with the potential conflicts this could raise. Speaking to reporters Monday, he said somewhat cryptically that he’s looking into whether it’s possible for the Senate to “bifurcate” its impeachment process.
A Senate trial wouldn’t begin until at least Jan. 20, when Democrats take over the White House and Senate, according to a memo laying out a timetable from the current Senate majority leader.
And so, if the House does impeach, Biden wants the Senate to spend some time on dealing with an impeachment trial, and the rest of the time working on his nominations and on legislation supporting his agenda, particularly a coronavirus relief package.
“Can we go [a] half-day on dealing with impeachment, and [a] half-day getting my people nominated and confirmed in the Senate as well as moving on the package?” Biden said, according to the media pool report.
Biden added that he doesn’t yet know if this is possible. “I haven’t gotten an answer from the parliamentarian yet,” he said.
So is this possible? Congressional scholar Norman Ornstein told me the answer is yes.
Ornstein noted that, within the confines of what the Constitution says about impeachment, the Senate still sets its own rules and procedures. “So in theory it is possible to move forward with other actions even as they’re doing a trial,” Ornstein told me.
Indeed, a Congressional Research Service report from January 2020 seems to suggest as much. It notes that at the precise moments the Senate is conducting a trial, it cannot do legislative business.
But it goes on to say that the Senate can choose “to spend some period of a day” in legislative session but also “spend a period meeting as Court of impeachment.”
The CRS report notes that this gives rise to technical questions, suggesting that unanimous consent might be required to set such a schedule. That could lead to a lot of mischief, but it doesn’t mean it can’t be done.
Indeed, as the CRS report points out, during Bill Clinton’s impeachment, “the Senate did conduct other business on some of the days on which it also considered articles of impeachment.”
Adam Jentleson, who was a senior adviser to former Senate majority leader Harry M. Reid and has written a new book on the Senate, told me that when it comes to its inner workings and rules, the Senate is “master of its own destiny.”
“The Senate can conduct this trial however it wants, so the bifurcation path is entirely doable,” Jentleson told me. “Procedurally, it’s basically a matter of conducting a two-track approach.”
Ornstein, for his part, noted that one way this might be done is by setting up committees to do investigative spadework for the impeachment trial. For instance, Ornstein said, you could see witnesses pre-interviewed by senators or staff in a committee setting, as the precursor to full trial testimony. This happened during Clinton’s trial, Ornstein noted.
Or you could see a fact-finding effort devoted to, say, a full reconstruction of the mob assault on the Capitol and what, precisely, Trump was doing and saying all throughout, and to whom he was saying it, Ornstein pointed out.
“You could have sessions for several hours doing the day” as part of an “investigative process,” Ornstein said, adding that he didn’t “see any reason” why the Senate couldn’t also do work on legislation and nominations at other times.
All this hints at a way forward that might be politically palatable as well. Precisely because Trump won’t be in office anymore, such an approach might come across to the public not as an effort to remove Trump (which it wouldn’t be) but rather as a quest to undertake a full accounting and reckoning into an extraordinary insurrectionist assault on the U.S. government.
It might also come across as being all about whether Trump should ever be permitted to hold office again.
There’s no reason to reflexively assume that the public would oppose all this in the name of vaguely defined “unity.” And there’s no reason to assume that majorities would even see such a reckoning as undermining “unity” to begin with. These assumptions themselves concede too much.