If Nancy Pelosi intends to withhold articles of impeachment until Mitch McConnell and Chuck Schumer strike a deal on President Donald Trump’s trial, the speaker could be in for quite a wait.
The two Senate leaders on Monday appeared deadlocked on the key questions surrounding the trial more than a week after Minority Leader Schumer made his opening bid. The stalemate raises the prospect of a partisan set of rules for the trial, which would be a black eye for a chamber that kicked off former President Bill Clinton’s impeachment trial with a unanimous vote.
Schumer has called for subpoenaing key administration officials and requesting documents withheld by Trump. On Monday, he zeroed in on the case for new documents, emphasizing that the paper trail from the White House’s Ukraine decision-making is just as important as his call for administration witnesses like former national security adviser John Bolton and acting White House chief of staff Mick Mulvaney to testify.
In a letter to his 99 Senate colleagues, Schumer argued the Senate should obtain records from the Department of State, Office of Management and Budget and the White House.
McConnell remains unmoved. On Fox News on Monday, he said Schumer should “quit the charade” that either party leader is an impartial witness and reiterated that any witness decisions would be left until after the trial begins. The two leaders are "at an impasse," McConnell said.
“He does a lot of namecalling, he does a lot of partisanship," Schumer responded at a news conference in New York City on Monday afternoon. "He still hasn’t answered the question: what is wrong with witnesses? What is wrong with documents."
When he addressed local media on Monday morning at an event in Louisville, McConnell suggested the standstill could persist until January when Congress gets back from its holiday recess. And he was much more interested in boasting of the windfalls to Kentucky in the year-end spending bills than discussing impeachment.
“Everything that could be said has been said,” McConnell said of the impending trial. “We’ll find out when we come back in session.”
The Senate is set to return on Jan. 3. Until then, the two party leaders and their allies appear content to engage in a messaging battle rather than relent on their entrenched positions.
That conflict could come at a price: Senators in both parties hope McConnell and Schumer can give the trial even the slightest veneer of bipartisanship after the partisan impeachment fight in the House, which charged Trump with abuse of power and obstruction of Congress.
“McConnell has shown that he is going to use whatever powers that are available,” Sen. Chris Murphy (D-Conn.) said. “I’m not anticipating that he’s going to give an inch if he thinks that witnesses are going to hurt his members. But I think Chuck really believes that there may be some critical mass of Republicans who don’t want to short-circuit this.”
The Senate can pass motions during the trial with 51 votes. Republicans control 53 seats and, with party unity, can ignore Schumer's requests, though it is not a preferred option.
“Once we’re sworn in, that 51 of us could adopt the rules for [Clinton’s trial] that would still apply,” Sen. Roy Blunt (R-Mo.) said on Monday. “We don’t want to do it that way. Hopefully it won’t happen.”
Likewise, Schumer can force votes on motions even if McConnell doesn’t support them, putting senators on record about witnesses and documents. Republicans are entering 2020 with a real chance at losing the majority, and Democrats believe if GOP incumbents vote against gathering more information in the trial, it could affect tough races in Maine, Colorado, North Carolina, Arizona and Iowa.
On Monday, Sen. Chris Coons (D-Del.) circulated a memo to his fellow senators written by former Sens. Chuck Hagel (R-Neb.) and Russ Feingold (D-Wis.) that the two impeachment veterans wrote could serve as "helpful and unbiased guidance" for the impending trial and potentially momentous procedural votes.
The House has unsuccessfully sought some of the records and testimony that Schumer is seeking. In his Monday letter, he referred to records to understand delays in aid to Ukraine, the president and his allies’ request that the country announce a probe into Joe Biden, and Ukrainian President Volodymyr Zelensky’s pursuit of a White House meeting.
“No good reason has been offered as to why the Senate should not hear all of the available evidence in this trial. The majority leader has suggested that the Senate should begin the trial and decide later whether to call witnesses or obtain documents,” Schumer wrote. “The practical effect of that approach, however, would be to foreclose the possibility of obtaining such evidence because it will be too late.”
McConnell has argued the Senate should follow the pattern of Clinton’s impeachment trial. In 1999, during Clinton’s impeachment, the Senate voted 100-0 to establish the trial’s basic parameters and later voted mostly along party lines to subpoena witness depositions.
McConnell and Schumer met privately off the Senate floor on Thursday and were unable to strike a deal on rules to govern the trial. On Monday morning, on “Fox & Friends,” McConnell said the Senate won’t do the House’s work for it on pursuit of documents and witnesses.
“The House went ahead without witnesses, and they didn't pursue the witnesses in court,” McConnell said. “They just blew right through that and accused the president of doing something improper by simply invoking executive privilege, which every president has done.”
Schumer said the two scenarios are different because of the documents and testimony received by the House during Clinton’s impeachment. Schumer wants the Senate to simultaneously establish rules for the trial and agree to witnesses and documents, something McConnell appears unwilling to consider.
Schumer has also argued new emails released to the Center for Public Integrity showing OMB communications bolsters his case for more information. The Democratic leader urged his Senate colleagues to take the holiday recess “to reflect on whether it is possible for the Senate to conduct a fair trial and reach a just outcome without reviewing all of the existing evidence and considering all of the available facts.”
McConnell said on Monday, “All I'm asking of Schumer is that we treat Trump the same way we treated Clinton."
Pelosi has said she can’t choose impeachment managers and submit the impeachment articles until she knows “what sort of trial the Senate will conduct.” Democrats are angry that McConnell admits he won't be an impartial juror and is predicting Trump will be acquitted in the Senate.
Most senators believe Pelosi will deliver the impeachment articles in January. There’s no real cost to her withholding them now since the Senate was never going to start the trial until next year, although her stance has been interpreted by some Republicans as meddling in the Senate’s business.
“It exerts a level of control over this process that the speaker doesn’t have,” Blunt said. “I think it’ll work out.”