Dems Weigh How To Get Around An Impeachment Hold-Up To Confirming Biden’s Noms

WILMINGTON, DE - DECEMBER 28: President-elect Joe Biden delivers remarks at the Queen Theater on December 28, 2020 in Wilmington, Delaware. Biden will be inaugurated as the 46th president in a scaled-down ceremony i... WILMINGTON, DE - DECEMBER 28: President-elect Joe Biden delivers remarks at the Queen Theater on December 28, 2020 in Wilmington, Delaware. Biden will be inaugurated as the 46th president in a scaled-down ceremony in Washington D.C. due to the coronavirus (COVID-19) pandemic on January 20, 2021. (Photo by Mark Makela/Getty Images) MORE LESS
January 12, 2021 11:43 a.m.

The plan to impeach President Trump over his encouragement of a mob that ransacked the Capitol is colliding with the reality that doing so could delay, by at least a few days or weeks, confirmation of key Joe Biden nominees after the inauguration.

There are no signs yet that Democrats are having any second thoughts about their push to impeach Trump in the House — a move that at some point would require the Senate, the body in charge of confirming presidential appointments, to take up the matter with a trial.

But there is a recognition that doing so will come at cost to President-elect Joe Biden — even if its cost is outweighed by the demand to hold Trump accountable for inciting the riot — if the Senate does not take up the impeachment until around the time Biden is inaugurated president.

In a memo passed around on Friday, as the House was coalescing around moving forward with impeachment, Majority Leader Mitch McConnell (R-KY) said that the Senate rules would not let the Senate meet again before Jan. 19 unless all 100 senators agreed to convene earlier.

That timeline for a Senate impeachment trial would take off some of the pressure on Senate Republicans for voting to remove Trump, since the trial would not start until at least Jan. 20, after Biden was sworn in and Trump was already out of office. It could also mean that Cabinet posts that are usually filled with a president’s replacements in the early days of his or her first term would remain vacant — and at a time when the country is facing a devastating pandemic, an economic crisis, and now also the threat of violence from Trump supporters unwilling to accept Biden’s victory.

Already, the GOP-controlled Senate has been slow to schedule pre-inauguration confirmation hearings for crucial Biden nominees — a slowness that’s been a break with past practice. An impeachment trial in the early days of his administration could put Biden’s legislative agenda on hold as well.

House Majority Whip Jim Clyburn (D-SC) on Sunday floated the possibility that Speaker Nancy Pelosi (D-CA) could hold off on sending the impeachment  articles to the Senate for some extended period of time — perhaps as long as the first 100 days of the new Biden administration.

It just so happens that if it didn’t go over there for 100 days, it could — let’s give President-elect Biden the 100 days he needs to get his agenda off and running, and maybe we’ll send the articles sometime after that,” he said on CNN.

So far, there is no indication of broader support of such an approach, which would undoubtedly attract mockery from Republicans.

Biden told reporters on Monday that his team was looking into how the Senate could “bifurcate” its daily schedule, so that half of its working time is devoted to confirmations and the other half to the impeachment schedule.

Can you go [a] half-day on dealing with the impeachment, and a half-day getting my people nominated and confirmed in the Senate?” Biden said. 

A Senate Democratic aide, meanwhile, has suggested to some outlets that Sen. Chuck Schumer (D-NY), while he is still the minority leader, might use an obscure post 9/11 authority to pressure McConnell to reconvene the Senate earlier for impeachment. That option allows McConnell and Schumer to call the Senate back into session during times of national emergency. Schumer has also signaled support for finding a way for the Senate to advance on the Biden administration priorities while the impeachment trial is ongoing.

Incoming administrations in the past have traditionally been able to get Senate confirmation of key nominees quickly after inauguration. Presidents George W. Bush, Barack Obama and Trump have all had at least a few nominees confirmed on Inauguration Day or the day after. Usually that priority is reserved for secretaries of state, Defense secretaries and, sometimes, secretaries of the Treasury. But, given the unique nature of the crisis facing Biden, he may wish to also prioritize other Cabinet officials, such as his Health and Human Services nominee Xavier Becerra or his Justice Department pick, Judge Merrick Garland.

Not having those positions filled “inhibits any kind of long-range planning,” said Kathryn Dunn Tenpas, a Brookings Institution expert and a senior research director for the White House Transition Project. And it burns time off the four-year clock that Biden faces before the next election to implement his policies.

While most attention is on these top officials, Tempas noted that the Trump administration has brought about a hollowing out of the next tier of agency leadership — i.e. the handful of undersecretaries and other presidentially-appointed deputies at each agency who play an under-the-radar but crucial role in guiding a president’s policy within the executive branch.

Then there are the agencies that, under Trump, have gone for months without a Senate confirmed leader. 

However, on the other hand, Tempas said, these agencies have learned to function in those circumstances, and they will continue to function with any confirmation delays caused by impeachment. The Department of Homeland Security has not had a Senate-confirmed secretary since 2019, and its recent acting head, Chad Wolf, who was believed by many to be in the top role unlawfully, stepped down Monday night.

“Going forward, if people at DOJ or at Treasury have to wait another five days for the nominee to be confirmed, I would say, of all times to do it, this isn’t really gonna mess it up, because you have been with actings off and on for the last four years,” she said.

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