Skip to main content
analysis

Senate Republican Leader Mitch McConnell, left, and Senate Democratic Leader Chuck Schumer in Washington on January 6, 2021.JONATHAN ERNST/Reuters

The U.S. Senate, whose rhythms were set in the time of Joseph Haydn but whose members witnessed the new President be serenaded by Lady Gaga, faces a question for the ages: Does the possible conviction of an impeached former president strike the right chord for the new post-Trump era?

On the surface, the matter facing the Senate in February, after House Speaker Nancy Pelosi has transmitted the article of impeachment Monday, is simple: Did Donald Trump incite an insurrection against the American government?

But nothing about the Senate – the slow-moving, deliberate, quirky legislative body that moves to 18th-century cadences, has strict rules on some matters and no rules at all on others, where arcane codes of mannerly comportment prevail but where a lawmaker in 1856 beat a prominent senator on the head until he was unconscious – is simple.

And as a result, nothing about the pending trial of Mr. Trump – himself a complex figure, the 2021 personification of Churchill’s 1939 characterization of Russia as “a riddle, wrapped in a mystery, inside an enigma” – is simple either.

“This is a tricky, unusually complicated period with policy calculations the White House and the Democrats have to worry about,” said Steven S. Smith, a congressional scholar at Washington University in St. Louis.

This is perhaps the only trial in history where the jurors were the first-hand witnesses to the crime, the desecration of the Capitol. It is the only affair in recent years where lawmakers have to adjudicate between what is best for the institution in which they sit and whether they will continue, after the voters have their say in elections next year and beyond, to sit there at all.

And it is the only major proceeding in contemporary times where the side that holds the balance of power in the chamber may be injured if it prevails.

“Does a trial and a conviction help unify the country?” Senator Angus King, an Independent from Maine, asked during an interview this week. “No. But can you allow someone to make the most frontal assault on democratic values in the country’s history go unpunished? I think the answer there is ‘no.’ I don’t think it will help the President. But I don’t think we can let it go.”

Indeed, the entire affair is a matter of multiple questions like the one Mr. King, respected by members of both parties, raises:

Would a Senate trial distract from the initiatives of the Joe Biden administration? Would it delay Senate confirmation of key Biden appointees and slow the new President’s momentum? Would it heighten rather than relieve partisan tensions on Capitol Hill and in the country beyond? Would it create new fissures at a time when mainstream political figures are struggling to diminish them?

Already, Mr. Biden has made his view clear: He may be, as George W. Bush said in August, 2006, “the decider, and I decide what is best.” But he does not believe that the political disposition of his predecessor is for him to decide.

“It’s the Senate’s business alone, and if the Senate convicts him and bars him from future office, that’s the final word,” said former Democratic Senator Paul Kirk of Massachusetts, whose wisdom often is sought by his former colleagues. “Trump then would be a nuisance and a pest but little more.”

“But,” Mr. Kirk continued, “I worry that the time and distraction of the trial takes away from the President’s business, which the Congress plays a role in.”

Like so much in this episode – like so many other matters that come before a body that sometimes seems as if it were in the court of the 18th-century Esterházy establishment – the initial Senate wrangling has been about something else entirely.

The matter is as intricate, elaborate and perhaps impenetrable as some Senate exchanges themselves.

At the centre of the conundrum is the filibuster, the prolonged speeches that delay legislative action that have been a feature of the Senate since the early days of the United States. For the past century, the Senate generally has allowed only a supermajority – now three-fifths of the body, or 60 members – to end a filibuster. The newly empowered Democrats, during the civil-rights era the masters of the technique, now may be eager to change that practice, through a complex procedural manoeuvre called the “nuclear option.”

But GOP Senate leader Mitch McConnell wants his rivals to promise not to use the “nuclear option” that he once brandished, and to preserve the ability of a large majority to block action in the Senate. The chamber is equally divided between the parties, with Vice-President Kamala Harris holding the balance of power.

This may seem like a sideshow, but it is relevant because in order to organize the Senate’s committees, the lawmakers must pass an “organizing resolution,” which itself can be filibustered.

The result: For a brief period, Mr. McConnell may have as much power as minority leader as he possessed for the past six years as majority leader. And he wants to make the filibuster and the nature and length of the trial part of one deal.

There is little doubt that the disposition of the Biden program would be complicated with a Trump trial and conviction. “He has legislation he wants passed quickly,” Mr. Smith said. “He can’t be thrilled with a trial intensifying partisanship. Whether right away or later, he’ll need Republican votes in a Senate operating at a razor’s edge.”

Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.