1.12.2021 Washington Update

House – Yesterday, Speaker Nancy Pelosi (D-CA) announced the House will vote on Wednesday to impeach President Trump. Before they do that, however, House Democrats will also attempt to pass a resolution urging Vice President Pence to invoke the 25th Amendment to oust President Trump from office. Impeaching the President by January 20th will require House Democrats to bring a resolution straight to the floor as a privileged resolution, rather than through the House Judiciary Committee. Currently, there are 222 members in the House Democratic Caucus, with 217 needed for passage on the floor.

House leaders may elect to hold the articles of impeachment until President-elect Biden is in office and Democrats have control of the Senate. Conviction in the Senate requires “two-thirds of members present,” or 67 votes. Obviously, a considerable number of Republicans would have to support Trump’s conviction to reach that threshold. Note that even though this could happen after Trump leaves office, it is not a moot point. Separately, the Senate can vote to disqualify Trump from “hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States,” and further that he “shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.”  (According to Justia US Law, “Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction.”)  So, the political and personal stakes, for Trump at least, are high.

A big question is what President-elect Biden wants to happen. He has emphasized time and again his sincere intention to unite the nation. Moreover, it’s possible that an impeachment trial could overshadow his agenda. So far, President-elect Biden has said that any decisions regarding impeachment are up to Congress. Incoming Senate Majority Leader Chuck Schumer (D-NY) will also have to consider how an impending trial could impact the Senate’s floor agenda, which, along with Biden’s legislative priorities on COVID/stimulus and infrastructure, must accommodate consideration of Biden’s Cabinet nominees. It’s still unclear how, or whether, a trial and regular order could coexist. We should note that the Senate can do both morning business and conduct an impeachment trial in the afternoon, because the Senate would convene at 1:00 pm. So, it’s entirely possible that Biden nominees, beyond DOD, could start moving, even with a trial occurring.

Senate – The makeup of the 117th Congress is now settled. Yet important procedural steps remain open.

The Senate is in recess this week, but negotiations on a Senate organization resolution, which, among other things, will establish committee ratios and budgets, are commencing. The 2001 power-sharing agreement, forged by then-Senate Majority Leader Lott (R-MS) and then-Minority Leader Tom Daschle (D-SD), could serve as a starting point for negotiations. But, ultimately, it will be up to Schumer and Leader McConnell (R-KY) and their respective caucuses, as a resolution requires 60 votes to pass.

Georgia’s Democratic Senators-elect, Jon Ossoff and Raphael Warnock, have not been officially sworn-in. And until Vice President-elect Harris becomes Vice President, Senate Republicans remain in control. But in effect, that doesn’t mean much. So far, only retired General Lloyd Austin, nominated to be Secretary of Defense, has received a hearing date (Jan. 19).

Added to the mix is the Congressional Review Act (CRA), which authorizes fast-track procedures (including a simple majority vote in the Senate) to nullify major regulations—in this case, according to our calculation, those that were issued by federal agencies on or after August 21, 2020. Incoming Biden Administration officials can also stop any rule that is not published in the Federal Register, or significantly delay implementation of rules that have been published, but not taken effect. Congressional Republicans successfully used the CRA 16 times when President Trump took office.

White House – There has been some discussion around a two-part stimulus bill from President-elect Biden. Components could include $2,000 direct payments, state and local funding, vaccine distribution funding, unemployment benefits, rental relief, tax incentives, and additional small business assistance. At this stage, it’s too early to tell whether Republicans will support Biden’s proposal.