Much Is Murky about the Impeachment Trial

Pretty much the only things that are certain about the upcoming impeachment trial are: (1) Donald Trump will be the defendant and (2) he won't be president when it happens. Little else is known about it. We are definitely in uncharted waters now.

Speaker Nancy Pelosi (D-CA) signed the article of impeachment Wednesday evening. Now she has to decide when to transmit it to the Senate. Then the Senate has to decide when to begin the trial. That will be up to soon-to-be Senate Majority Leader Chuck Schumer (D-NY). He will also have to decide whether the Senate can collectively walk and chew gum at the same time (or more specifically, if it can try Trump every morning and then confirm cabinet nominees every afternoon). If that kind of split-screen scenario is ruled out, Schumer may prefer to spend the first week of Joe Biden's administration ramming through secretaries, deputy secretaries, and assistant secretaries, so they can get going dealing with the pandemic and the economy.

Another key question is whether the Senate can even try a former president. There is some precedent in trials of former judges and other former officials, but Trump's lawyers will certainly argue that the trial itself is unconstitutional. Interestingly enough, while the 1787 Constitutional Convention was in progress, the British Parliament was busy impeaching and trying the former governor general of India, Warren Hastings. So the framers of the Constitution certainly knew that in British law, a former official could be impeached and convicted. Because this was obvious to them, they may not have bothered to make it explicit in the Constitution, in the same way they didn't specify explicitly that the trial would be in English, that lawyers would be allowed on both sides, that people were expected to wear clothes during the trial, and so on.

Speaking of the Constitution, when a president is on trial, the Chief Justice presides. What about a former president? Will Chief Justice John Roberts preside? Who gets to make the call? Can Roberts insist on presiding? Can he refuse to preside? Can the Senate insist the president of the Senate preside? Or can the Senate insist on the pro tem (soon to be Sen. Pat Leahy, D-VT) presiding? Nobody knows.

How will the trial proceed? Can the prosecution bring in witnesses or show videos? Can the defense? How long will it last? Will it follow the same format as the first Trump impeachment? What will the defense team argue? Will they say Trump didn't mean for the protesters to occupy the Capitol? Will they say he just wanted a peaceful protest?

And most important of all, unlike the first trial, the result is not a foregone conclusion. All 48 Democrats and the two independents will certainly vote for conviction. That's 50 votes to convict right off the bat. Very likely Sens. Mitt Romney (R-UT), Lisa Murkowski (R-AK), and probably Ben Sasse (R-NE) will vote to convict. That's 53. Will 14 more Republicans join them to get to 2/3 of the Senate? Sen. Mitch McConnell (R-KY) hasn't said how he will vote, but privately he has told aides that Trump committed an impeachable offense. Also, McConnell would love to purge the Republican Party of Trump and this is his chance. If he decides to vote to convict, that could bring in 13 more Republicans, especially Republicans who were (re)elected in 2020. They won't have to face the voters again until 2026, by which time the trial will have faded into obscurity.

Also a factor are the senators who see themselves as presidential material. They would also like to get rid of Trump as a possible opponent in 2024. How will they vote? For the ones who are running in the Trump lane, voting to convict Trump may not endear them to the base, though. And, of course, how the trial proceeds and what public opinion says then are also factors in whether we get to 67 votes to convict. (V)

Biden Explains His Economic Plan

When Joe Biden takes over next week, he will have two crises on his plate that need immediate attention: the pandemic and the economy. Yesterday he laid out his plan for dealing with them. He wants to spend $1.9 trillion to tackle them simultaneously. It is called the "American Rescue Plan," and it is only the first step in beating back the twin threats.

The plan has three parts:

• $400 billion for more vaccines and testing and opening schools
• $1 trillion for relief to families through direct payments and unemployment benefits
• $440 billion for aid to states, local governments, and businesses

The plan includes the goal of getting 100 million people vaccinated within 100 days and reopening all K-12 schools in that same time period. The plan also includes some things that many Democrats want but which have little to do with the pandemic, such as raising the minimum wage to $15/hr. It also adds $1,400 to the direct payments Congress has already approved, bringing them to the $2,000 that Donald Trump called for, while also expanding the group of people eligible. It also provides for 14 weeks of sick leave and medical leave for workers.

The large price tag and inclusion of liberal priorities is certain to generate massive opposition from Republicans. Many Republicans have called for unity and bipartisanship and puppies and unicorns and rainbows. This puts their words to the test. If they say: "Of course we want to work together for the good of the country; if you would just carry out our program, we could achieve that," then the President-elect knows it was all a smokescreen and they never had any intention of working with him. However, Biden also knows he can achieve most of his plan using the budget reconciliation process. Republican senators know that too, so the choice for them is to work with Biden to get his program through the Senate and get some of the credit for it or else oppose it from day 1, making it clear that they really have no interest in working with him, and then having the program rammed down their throats anyway via the reconciliation process. Logically, since they know it is going to happen with or without their help, they ought to help and get some of the credit. But politics being politics, we guess most of them will oppose the plan from the get go and force Biden to use plan B (which he is probably expecting anyway). (V)

Biden Will Have a Prime-Time Inauguration Program

The (virtual) Democratic National Convention was a made-for-television special. Following that template, Joe Biden is also going to have a made-for-television inauguration. It will be broadcast on all the major networks—except Fox News, naturally—on Jan. 20, from 8:30 p.m. to 10:00 p.m. ET. It will also be broadcast live by YouTube, Facebook, Twitter, and other social media platforms (unless, of course, they feel obligated to ban Biden just as they have Trump). Given the double whammy of the coronavirus and possible threats of violence in D.C., it makes sense to have most of the celebration be virtual.

It will have a star-studded cast, led by host Tom Hanks, and will feature performances by Jon Bon Jovi, Demi Lovato, Justin Timberlake, and Ant Clemons. It will also show inaugural celebration events from around the country. The show will be produced by Stephanie Cutter and Ricky Kirshner. Cutter produced the DNC show, so expect more of the same: A celebration of America with a visibly diverse cast of Americans. Donald Trump will not be featured in it, but he will nevertheless claim that his was bigger. Maybe Cutter can book Stormy Daniels to tell everyone that, in truth, it wasn't big at all.

At noon, Biden and Harris will take the oaths of office on the steps of the Capitol. Lady Gaga will sing the national anthem and Jennifer Lopez will also perform. There will be a short ceremony there including a poetry reading, but most of the action is reserved for Cutter's show, which right-wing protesters will not be able to disrupt.

It will actually be a 2-day show. On Jan. 19, the inaugural committee is planning an event to honor the 380,000 Americans (by then, over 400,000 Americans) who have died from COVID-19. (V)

It's Cheney v. McCarthy

No, it is not a court case or a boxing match, but it certainly is a battle. Rep. Liz Cheney (R-WY) and Minority Leader Kevin McCarthy (R-CA) are definitely locked in a power struggle for control of the post-Trump Republican Party. McCarthy is the current House minority leader and Cheney sees herself as the next speaker if the Republicans take the House in 2022. They are making very different bets on what is going to happen in the next two years.

Cheney has no use for Trump, condemned the rioters, and voted to impeach him this time. McCarthy is a Trump toady, hasn't condemned the riots very strongly, and voted against impeachment. Basically, Cheney is betting that Trump is a spent force and can be increasingly ignored going forward. McCarthy is betting that Trump will remain a powerhouse for years and that the most important thing for a Republican politician to do is kiss his rear end.

Cheney, who got her politics from Dad, is no flaming liberal. Still, her position allows her to take the high road, which makes her more acceptable to traditional conservatives. She said: "There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution." She put the blame for the riots clearly on Trump's doorstep. This did not make her uniformly popular within her caucus. House Freedom Caucus Chairman Andy Biggs (R-AZ) called on her to resign her leadership post. He could be a problem for her down the road, as the speaker is elected by the entire House, not just the majority party caucus. If, come Jan. 3, 2023, the Republicans have, say, 220 seats in the House, and 20 members of the Freedom Caucus refuse to vote for her for speaker, she won't have the 218 votes needed to get the job.

In fact, she now has to fight to keep her current job as conference chair, to which she was elected in November. Rep. Jim Jordan (R-OH) is circulating a petition to force a meeting at which the caucus could discuss getting rid of her. Then there would be a vote by secret ballot to remove her. Cheney has made it clear she is not going voluntarily. In contrast to Jordan, Rep. John Katko (R-NY) is circulating a petition supporting her. This activity foreshadows a civil war within the GOP between the pro-Trumpers and anti-Trumpers.

McCarthy, by contrast, is all in on Trump. He thinks the way to become the majority party again in 2023 is stick with Trump and Trumpism all the way and start attacking Biden the minute he takes the oath of office. Bipartisanship is for fools and losers. But the Minority Leader is taking a big risk. If Trump goes down in flames in the coming year, so does McCarthy and so does the House Republican caucus. When the dust clears, we'll know who guessed right. (V)

House to Fine Members Who Refuse to Go Through Security Screening

Rep. Lauren Boebert (R-CO) has been in Congress for less than 2 weeks and already she has inspired the House to act. Even Rep. Alexandria Ocasio-Cortez (D-NY) didn't move that fast. Probably because Ocasio-Cortez obeys the rules and Boebert doesn't. In particular, Boebert, whose whole campaign was about how much she loves her guns, maybe even more than she loves Jesus, went through the metal detector to get into the House and set the alarm off. When the security officer asked her to open her purse for inspection, she refused. He might have had a hunch what was in there that set off the alarm, because Boebert has pledged to carry her Glock onto the floor of the House. That is not allowed, although members may have firearms in their offices. And even then, D.C. has strict laws forbidding concealed carry of weapons.

Nancy Pelosi doesn't have a lot of sympathy for gun-toting congressmen and women. She said that when the House comes back in session on Jan. 21, it will vote on a new rule that will fine lawmakers $5,000 the first time they refuse to comply with the security officials and $10,000 the second time. The fine will be deducted directly from their paycheck.

When the vote comes, Boebert could argue her case that solving political problems by dueling is an American tradition. Schoolchildren all learn about how Aaron Burr, then the sitting vice president, killed former Secretary of the Treasury Alexander Hamilton in a duel. But duels were actually fairly common before the Civil War. Then-New York governor DeWitt Clinton nearly killed a Burr supporter in a duel in 1802. In 1826, then-senator John Randolph fought a duel with Secretary of State Henry Clay for crucifying the Constitution and cheating at cards. Andrew Jackson frequently dueled. In 1838, then-representative William Jordan Graves killed then-representative Jonathan Cilley in a duel. So maybe Boebert wants to make America great again by bringing back the great old tradition of solving problems by dueling. (V)

It's Nightmare Time for Republicans

And this particular nightmare doesn't involve Donald Trump. If Republicans had to vote on the person they would least like being in charge of how the federal government should spend its money, it would probably be Sen. Bernie Sanders (I-VT) (although Sen. Elizabeth Warren, D-MA, or possibly AOC might be a close second). As soon as the two new senators from Georgia are seated, Republicans will get their nightmare. The person who will then take over the chairmanship of the Senate Budget Committee is indeed Sanders. As such, he and Rep. Rosa DeLauro (D-CT), chair of the House Appropriations Committee and a founding member of the Congressional Progressive Caucus, will have a huge say in how the federal government spends its money. Republicans are not likely to be amused. And the budget can be passed in the Senate using the budget reconciliation procedure, so it can't be filibustered. Joe Biden can make his wishes known to the pair, but in the end, Congress passes the budget and all Biden can do is sign it or veto it. Vetoing it would be political suicide, so he is pretty much stuck with whatever Sanders and DeLauro cook up. If DeLauro wants to know what the people want, she can just ask her husband, veteran Democratic pollster Stan Greenberg.

Sanders, as you might have heard, is not a cautious deficit hawk who wants the government to turn over every penny three times before spending it. He is a strong supporter of a big government stimulus to right the economy. He also supports sending most Americans a $2,000 check right now. He is definitely going to like Joe Biden's American Rescue Plan and will do his damnedest to get it through the Senate. Sanders is pretty good at giving speeches and exciting his base. Now we will find out how good he is at actually legislating.

It is a given that the budget will be passed using the reconciliation process, since having Sanders and likely ranking member Sen. Lindsey Graham (R-SC) make a deal is never going to work. The former chair was Mike Enzi (R-WY), but he retired from the Senate. Graham is the #3 Republican on the Committee, after Sens. Chuck Grassley (IA) and Mike Crapo (ID), but he seems to have the inside track on ranking member slot since Grassley will probably keep his ranking member slot on the Finance Committee and Crapo will probably stick with his slot on the Banking Committee. But it doesn't matter who wins. Sanders has big plans and will go it alone. That's his style. Biden considered him as Secretary of Labor, but was worried about losing Sanders' Senate seat in a special election. Sanders will actually have a lot more power as budget chairman than he would as labor secretary.

The way reconciliation works is this: The Senate and House first adopt a budget resolution that directs the other committees to draw up plans for spending and the taxes to pay for it. Tax increases would have to come from the Senate Finance Committee, chaired by progressive Sen. Ron Wyden (D-OR) and the House Ways and Means Committee, chaired by moderate Richard Neal (D-MA). After that happens, the budget committees get to work and formally draw up the budget, which both chambers have to approve.

In the House, once the final budget bill is ready, it will be up to Nancy Pelosi to whip at least 218 votes for a majority. It is in the Senate where reconciliation matters. Given the importance of making sure the federal government is funded, the Congressional Budget Act of 1974 provides Chuck Schumer with a "Get Out of Filibuster Free" card. Actually, it provides him with up to three of them per year—one each for spending, revenue, and debt limit bills, though in practice those things are often combined into one or two bills instead of three. Anyhow, in order to make sure that the Senate and House are able to pass identical, reconciled bills on spending/revenue/the debt limit in a timely manner, Schumer will be able to limit debate to no more than 20 hours per bill, at which point the bill(s) can be passed by a simple majority. Beyond the "once per year per type," the Byrd Rule imposes other limitations on the reconciliation process, largely meant to keep non-budgetary things from being snuck in through the back door. But the bottom line is that if the Democrats want to give Biden his $1.9 trillion, they'll be able to do it, and Mitch McConnell won't be able to say "boo." Life is much easier when you have the trifecta.

When asked about what Republicans should be expecting from him, Sanders said: "They should be worried." But he added: "But their constituents should not be." (V)

Koch Brother Not Happy with Republicans

The half of the Koch brothers that is still alive (Charles) is not a happy camper. Overturning elections and attempted coups really aren't his things. Yesterday he said that when it comes time to pass out money in 2022, the money fairy is going to take into account who was naughty and who was nice in the aftermath of the riot in the Capitol. In particular, Republicans who tried to overturn the election results are going to find themselves out of favor because Koch is not much of a fan of mobs coming for the elites. Some of his best friends are elites.

Koch is increasingly dissatisfied with the Republican Party. He believes in free trade, and in the last 4 years the Republicans have become the party of walls and tariffs, which are not to his liking. Also, he and his billionaire friends feel their reputations are on the line if they back Republicans who tried to throw out election results just because those Republicans didn't like who won.

The problem became more acute when Sen. Rick Scott (R-FL) voted against certifying the election results in Pennsylvania. Scott is incoming chair of the NRSC, a job where the main responsibility is prying millions of dollars from wealthy Republican donors. Some of the donors are angry with him for that vote and might just express their anger by saying "No" next time he asks them for something. Asked about this, NRSC spokesperson Chris Hartline said: "Chairman Scott has been having great conversations with donors, activists, and Republican senators over the last few days. Everyone is focused on the challenge ahead and excited to get to work to win back the Senate majority." Huh? The donors are furious with Scott for trying to subvert democracy and Hartline says they are having great conversations with him?

Charlie Black, longtime Republican lobbyist and political adviser, said: "Nobody who has a leadership position at a big organization is going to give Trump money again." Another Republican fundraiser said: "My gut tells me there would be, at least in the major-dollar community, much less enthusiasm for giving to him if he were to run for president again." In short, Trump has angered big donors and big corporations and that may translate into less money next time around. Of course, when the Democrats start raising taxes on rich people and big corporations, that view could change fairly quickly. (V)

Business Sucks

Donald Trump's business, that is. And it is only going to get worse as all the companies he worked with in the past are bailing on him. We addressed this a bit yesterday, but it's worth a closer look.

To start, Deutsche Bank, the only major bank still willing to lend Trump money, said it's finished with him and his two private bankers there both quit. Professional Bank went a step further and told him to take the $5 million he has in an account there and go move it somewhere else. It doesn't want his money. Signature Bank did the same thing, and while it was at it, also told him to resign the presidency. The PGA canceled a major golf tournament at his Bedminster, NJ, golf course. Organizers of the British Open said they would not use his Turnberry club in Scotland for the foreseeable future (translation: "while Trump is still alive"). New York City is canceling his contracts to run the ice rinks and merry-go-round in Central Park. The broker that handles office leasing for Trump Tower and his other properties (Cushman and Wakefield) dumped him. The e-commerce store that sells his merchandise (Shopify) dropped him. Much of his income is from licensing his brand. That's not exactly a growth industry these days.

And there is more. Four Trump-branded hotels have closed, his plans for a new chain fizzled, and his remaining hotels are toxic for all but his most die-hard supporters, most of whom tend not to stay in expensive hotels much anyway. He could lose the lease on his D.C. hotel, because starting Jan. 20 at noon, there will be a new landlord in town: Joe Biden (the government owns the building the hotel is located in). There is a clause in Trump's lease that says the government can cancel the lease if Trump is under investigation by any government authority, which he is in New York. Trump has been trying to sell the hotel, but no one wants it because it has been losing money hand over fist. And once he is no longer president, foreign governments are not going to be holding expensive bashes there anymore, so the red ink will only get worse. That sale could be crucial for him, since he owes $400 million and has few liquid assets to pay his creditors unless he can sell some assets at fire-sale prices soon.

Trump's biggest asset now is the 74 million people who voted for him, but he needs a way to monetize that. One possibility (maybe the only one) is to start a streaming channel on the Internet (to avoid dealing with cable companies, which don't want him) and charge people $5.99/month to watch him rant. If he attracted 7 million paying fans, that would be $500 million per year in revenue. Of course, if he repeats the same rant every day, not many folks will sign up for a second month.

But it is not clear that he will have a lot of time for setting up new ventures and hosting a rant show every evening. Manhattan D.A. Cyrus Vance Jr. is closing in on him, as is New York AG Letitia James. The new AG, Merrick Garland, might possibly hire a special prosecutor to look into whether he committed sedition, obstruction of justice, or violations of the Constitution's emoluments clause. Then there are the lawsuits from Summer Zervos and E. Jean Carroll to deal with, plus any new ones that pop up once he is out of office. Going back to the life he led before entering politics is not in the cards. Nor is a life of leisure or spending lots of time on the beach in Florida. The only thing that is sure is that he won't be bored to death for lack of anything to do. (V)

Biden Is Already Worried about the Midterms

Historically, the president's party takes a beating in the first midterm. In 2010, Barack Obama called it a "shellacking" and Joe Biden had a close-up view of it. He's determined not to have that happen to him in 2022 and is already looking at how to avoid it. Of course, he is taking office during both a pandemic and an economic crisis. If both are in the rear-view mirror in the fall of 2022, Democrats can campaign on the slogan: "We did pretty well, didn't we?"

One thing Biden is doing is merging his campaign with the DNC. To do that, he will send a top aide, possibly Andrew Bates or T.J. Ducklo, over there to smooth the process. He also sent his campaign manager, Jen O'Malley Dillion, over to manage the process of choosing a new DNC chair and officers. Biden wanted, and got, Jaime Harrison, who raised more than $100 million in his losing Senate race in South Carolina, to be the new chair. Biden's also committed to building up state Democratic parties, some of which atrophied during the Obama years. In particular, he wants them to devote more outreach to rural voters.

The stakes are high and reapportionment is nearly upon us, which will cause some blue states to lose House seats and some red states to gain them. But Biden is coming to the presidency as prepared as anyone could be, with 30 years in the Senate and 8 as veep on his C.V. He knows he has to deliver results and since he has majorities in both chambers of Congress, he might be able to.

Biden is also aware of how important the ground game is. Stacey Abrams won Georgia pretty much all by herself by registering 800,000 new voters. COVID-19 prevented the Democrats from going door to door in 2020, but they want to build up the state parties so they can do that in 2022.

In some ways, Biden is the exact opposite of Obama. The former president ignored the DNC and state parties and did his own thing. Biden is a creature of politics and will leverage the existing political infrastructure, not disown it. He will work to help state candidates, something Obama didn't do much. Biden is also starting on the midterms before he is even inaugurated. It is not an afterthought to him. But probably the main thing he has to do is make sure the country is in better shape in 2022 than it is now. That could be the strongest argument of all for electing Democrats. (V)

Republican Governor Tries to End Gerrymandering--by Democrats

Gov. Larry Hogan (R-MD) decided that he had enough of gerrymandering, so he created an independent commission to draw the new congressional and state district lines. The commission will have three Democrats, three Republicans, and three independents. Hogan himself picked three of the nine members. The other six will be chosen from online applicants by the three people he picked.

So does Hogan get a gold medal for being a fan of good government? Well, not exactly. In the past, the state legislature, which has huge Democratic majorities in both chambers, has drawn heavily gerrymandered maps favoring the Democrats. Now the Republican governor has decided he wants a fair map. In other words, he wants to block the Democrats from gerrymandering the state again. The net result will probably be that the Republicans get more seats in Congress and the legislature than they would otherwise have gotten. Good government in action! Now if, say, Gov. Greg Abbott (R-TX) were to block the Republican-controlled Texas legislature from gerrymandering, we'd call that an act of good government. But when a partisan governor tries to block the other party from gerrymandering, it looks more like scoring points for his team.

In the end, Hogan's scheme won't work, because state law gives the legislature the power to draw the maps. Hogan's commission can draw all the maps it wants and submit them to the legislature, but the legislature is under no obligation to even look at them, let alone accept them.

If Hogan were serious about good government, rather than just blocking the other side, he would have paired up with another governor where the tables are turned. For example, in Kentucky, Republicans control the legislature but the governor is a Democrat, Andy Beshear. If Hogan and Beshear had done this together, with Hogan blocking the Democrats and Beshear blocking the Republicans, it would look a lot more like a good government action than merely a maneuver to block the other side. (V)

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