Sen. Charles E. Schumer (D-N.Y.) outlined a rapid-fire agenda for the coming weeks that includes confirming Biden’s Cabinet nominees, approving trillions in additional pandemic aid and barring Trump from holding office — despite an uncertain road map in the 50-50 Senate, which is struggling even to adopt its basic rules.
Schumer is set to move from minority leader to majority leader on Wednesday, when the Senate meets shortly after the inauguration of Biden and Vice President-elect Kamala D. Harris, who will tip the chamber toward Democrats with her tie-breaking vote.
“The next several months will be very, very busy and a very consequential period for the United States Senate,” Schumer said on the Senate floor. “Let us begin our work in earnest.”
Significant obstacles threaten each of Schumer’s early goals: Republicans have thrown up early roadblocks to some of Biden’s key nominees, GOP fiscal concerns could make a bipartisan coronavirus bill difficult to pass, and Trump’s impeachment trial threatens to consume the earliest days of the Senate Democratic majority.
Beyond that, Schumer and McConnell reached an impasse Tuesday in talks to set the operating rules of the equally divided Senate — making any action a challenge — as McConnell demanded that Democrats drop any notion of ending the legislative filibuster.
McConnell also seized the opportunity to make at least a rhetorical break with Trump at a moment when the consequences are relatively low, with Trump leaving office, and the benefits potentially high, possibly winning back donors turned off by Trump’s actions.
Most of McConnell’s fellow Senate Republicans, however, showed little sign of following suit. Many must still contend with a GOP base that is supportive of Trump, and they could pay a price for denouncing him too forcefully — suggesting the party could face a years-long struggle between those embracing Trump and those distancing themselves.
It would take two-thirds of the Senate to convict Trump and bar him from future office, so Republican senators would need to supply 17 votes if all Democrats vote against Trump. Even McConnell did not say whether Trump should be convicted.
Sen. Joni Ernst (R-Iowa), a member of McConnell’s leadership team who just secured a second six-year term, joined a growing group of Republicans arguing that it would be unconstitutional to try Trump after he leaves office — a position that is challenged by some constitutional scholars but embraced by GOP officeholders as they struggle to square Trump’s conduct with his popularity among Republican voters.
“He’s not our president after tomorrow,” Ernst said, accusing Democrats of wanting to “further divide the nation” with a Senate trial. “We need to start healing. I don’t think this does that.”
Sen. Lindsey O. Graham (R-S.C.), who has been among a small group of Republicans counseling Trump since the Jan. 6 riot, said convicting Trump after he leaves the presidency “is bad for the presidency, bad for the country.”
But Schumer said Trump’s actions — which included repeating baseless claims of a stolen election, calling his supporters to gather in Washington on the day of the electoral vote certification, and then sending them toward the Capitol as the proceeding got underway — deserved the gravest possible reprimand under the Constitution.
“After what he has done, the consequences of which we were all witness to, Donald Trump should not be eligible to run for office ever again,” he said. “All of us want to put this awful chapter in our nation’s history behind us. But healing and unity will only come if there is truth and accountability — not sweeping such a severe charge, such awful actions, under the rug.”
The push for accountability could impinge on the other items on the Democratic to-do list. A presidential impeachment trial has historically been an all-consuming affair for the Senate, impeding virtually all other significant business, and previous trials have lasted several weeks. Trump’s first trial, concluded last February, lasted 21 days.
While some Democratic senators have floated a much shorter trial this time around, the House impeachment managers, who act as prosecutors, could feel compelled to present witnesses and evidence elucidating the president’s role in the violence, as well as legal arguments rebutting the claim that former officials cannot be convicted.
The impeachment resolution passed last week in the House holds that Trump warrants “disqualification to hold and enjoy any office of honor, trust, or profit under the United States” — language found in the Constitution relating to those who foster insurrection.
Sen. Richard J. Durbin (D-Ill.), the No. 2 Democratic leader, said balancing the trial with the other pillars of the Biden agenda would depend on a “level of cooperation” with Republicans.
“We need to get President Biden his team,” he said. “America is in a terrible situation with this pandemic, we have issues of national security that are still in front of us, we have an economy that’s struggling — all of those things are high priorities.”
Looming over all of the incoming business in the Senate is the unfinished negotiation between McConnell and Schumer about precisely how a 50-50 Senate will operate. Both leaders are eyeing the rules from the last evenly split Senate, in 2001, as a template.
Republicans and Democrats agreed then that the party holding the White House — and therefore the vice presidency — would set the floor agenda and chair committees, while the panels themselves would be evenly split.
McConnell, however, threw a new wrinkle into the negotiations, seeking assurances from Schumer that Democrats would swear off any attempt at abolishing the 60-vote threshold for cutting off debate on legislation — something liberal activists have been demanding for years.
McConnell spokesman Doug Andres confirmed the filibuster demand remains an unsettled issue. “Discussions on all aspects of the power-sharing agreement will continue over the next several days,” he said.
Schumer spokesman Justin Goodman said the Democratic leader’s view is that “the fairest, most reasonable and easiest path forward is to adopt the 2001 bipartisan agreement without extraneous changes from either side.”
McConnell and Schumer emerged from a 30-minute meeting reporting no real progress, and some advisers suggested no deal could be struck this week.
The impasse, according to multiple Senate aides, could mean that Biden finishes at least his first day in office without any Cabinet members confirmed, a highly unusual circumstance in recent history.
Speaking on the floor Tuesday, McConnell sent a signal to Democrats by asserting that Biden enters office without “a mandate for sweeping ideological change,” given the narrow majorities in the House and Senate and Biden’s platform as a “presidential candidate who said he’d represent everyone.”
Until negotiations over the Senate procedures are resolved, many of Biden’s Cabinet selections could linger in limbo. Committees will be unable to formally process nominees and send them to the full Senate, and the only path for a nominee would be if all 100 senators agreed to move the selection directly onto the Senate floor.
Several Senate committees held hearings Tuesday with Biden nominees — including his picks to lead the departments of Defense, Homeland Security, State and Treasury, as well as his choice for director of national intelligence.
One roadblock emerged Tuesday from Sen. Josh Hawley (R-Mo.), who announced he would object to any effort to advance Alejandro N. Mayorkas, Biden’s pick for Homeland Security secretary, to the Senate floor. In a statement, Hawley cited Biden’s immigration platform, which includes creating a path to citizenship for millions of undocumented immigrants.
“Mr. Mayorkas has not adequately explained how he will enforce federal law and secure the southern border given President-elect Biden’s promise to roll back major enforcement and security measures,” said Hawley, who came under fire for contesting the electoral college count even after the mob ransacked the Capitol.
Meanwhile, the incoming chairman of the Senate Foreign Relations Committee, Sen. Robert Menendez (D-N.J.) said Anthony J. Blinken, Biden’s nominee for secretary of state, would not get a panel vote until next week. And Senate action on Biden’s choice for defense secretary, retired Gen. Lloyd J. Austin III, is in limbo due to the need for a congressional waiver of the federal law requiring that former military officers must wait at least seven years before they can become defense secretary.