In a small Capitol Hill office after President Donald Trump had been impeached and official Washington bolted town for the holidays, a three-person team gathered to dig through musty old law books and congressional records.
The Senate parliamentarian, Elizabeth MacDonough, and her aides were scrambling to prepare for an event with little precedent in American history — the impeachment trial of a U.S. president. In just a few weeks, they would have to advise Chief Justice John Roberts on how to run that trial and address a slew of arcane procedural questions that few — if any — had ever been asked. Their answers, they knew, could influence how the historic event unfolded.
They read everything they could find on the subject, including transcripts and other historic materials from the two previous impeachment trials of U.S. presidents, as well as the work the office did in preparation for a case against Richard Nixon that didn’t happen because of his 1974 resignation.
They also looked at 17 other impeachment cases involving judges and other government officials dating to the John Adams administration. They made notes and downloaded all manner of material onto the laptops and internal systems they would be able to bring to the Senate floor and access at a moment’s notice.
“They’re up to their eyeballs in preparations,” said Alan Frumin, a former Senate parliamentarian and one of MacDonough’s mentors.
In a few days, House Speaker Nancy Pelosi is expected to send two articles of impeachment against Trump to the Senate, kicking off a trial. While Roberts is tasked with overseeing the proceedings from the Senate’s most prominent chair, it will be MacDonough hovering, omnipresent but essentially unseen, in the corner of the frame, offering guidance the entire time.
“America is about to get to know Elizabeth MacDonough,” Moira Whelan, a Democratic strategist and former Obama-era State Department senior official, recently posted on Twitter.
MacDonough, 53, will bring to her assignment more than 20 years of Capitol Hill experience as a non-partisan career government employee, going all the way back to her days in the Senate Library. She started as an assistant in the parliamentarian’s office just a few months after President Bill Clinton survived his own Senate impeachment trial and rose to become the first female Senate parliamentarian in U.S. history. Along the way, MacDonough has played pivotal roles helping senators navigate vicious debates over taxes, government shutdowns and health care. She helped the upper chamber work through the controversial decision to remove the filibuster as a weapon to block judicial nominations.
One of MacDonough’s most important assignments came in the wake of the Sept. 11, 2001, terrorist attacks, when she was still a relatively junior Senate adviser: preparing a continuity plan in case the U.S. Capitol ever needed to be evacuated and the government relocated.
Her job has many bosses. All 100 senators look to the parliamentarian’s office for advice as they draft legislation. Senate committees find out from MacDonough’s team which bills are headed their way. On the floor, she’s the one who provides guidance to the presiding officer whenever there’s a question or debate about precedent or procedure.
But it’s ultimately the Senate majority leader who makes the call on who serves in the post: Harry Reid promoted MacDonough in 2012 after Frumin’s retirement, and Mitch McConnell kept the Washington, D.C., native around when Republicans took control of the chamber two years later following the 2014 midterms.
“I’ve been here with many, many parliamentarians. All were good. But she’s the best,” said Vermont Democratic Sen. Patrick Leahy, the longest active serving senator.
“She’s tough,” added Texas GOP Sen. John Cornyn, the former majority whip. “She calls them straight down the middle.”
For the Trump trial, MacDonough’s three-person office will get the added responsibility of serving as the main liaison for Roberts, who along with a select group of aides must make the short commute into a building that they typically only visit on ceremonial occasions.
Her team will be tasked with delivering to Roberts the daily program that he’ll use to guide the proceedings. She will also be the one helping Roberts keep track of the clock as he calls on the people with assigned speaking roles — Trump’s White House and personal attorneys, Senate leaders and the House impeachment managers who will present the case for the Democrats. It’s a critical task for a chamber that operates on a series of careful agreements dictating time management.
At times, MacDonough’s deputy, Leigh Hildebrand, will also occupy the parliamentarian’s chair. Hildebrand, a Senate staffer entering her 15th year, is also a well-known face around Capitol Hill.
Perhaps most importantly, though, MacDonough will be the one who must give the chief justice instant advice should he need to make any snap rulings or decisions that could influence the trajectory of the trial.
Unforeseen events also loom. While the members are supposed to sit silently during large portions of the trial, they do have the right to raise objections, pose questions and hold press conferences right outside the ornate chamber doors. The whole world will be watching, too, including one person — Trump — with more than 70 million Twitter followers and little restraint on raining down invective on previously unknown figures.
MacDonough is no stranger to Capitol Hill. Senators feted the moment she made history as the first woman to get the job. Freshmen preparing for their inaugural turn chairing the Senate have described her as a lifeline to navigating arcane legislative questions.
Yet given the inherent political nature of her job, MacDonough also faced some criticism. Conservatives ripped MacDonough, for example, over a 2017 procedural ruling that hindered the Senate GOP’s attempts to dismantle the Affordable Care Act.
She’s taken the criticism in stride. During a commencement speech in 2018 at her alma mater, the Vermont Law School, MacDonough weaved together stories about some of those tense showdowns with more light-hearted moments, such as a quip about Sen. Marco Rubio’s awkward reach to grab a sip of water during a nationally-televised speech.
“Taking the long view is a part of what I do every day as I represent the interest of my unseen client, the institution of the Senate itself,” MacDonough said. “While serving its 100 members on a day-to-day basis, I still represent the Senate. No matter who is in my office asking for assistance, I represent the Senate with its traditions of unfettered debate, protection of minority rights and equal power among the states.”
Of course, senators don’t have to listen to her either. Reid and the Democrats, for example, overruled MacDonough in 2013 when they invoked the “nuclear option” to end the requirement that 60 votes were needed to confirm executive branch nominations and non-Supreme Court federal judicial appointments. She faced the same predicament in 2017 when McConnell changed the Senate rules so future Justice Neil Gorsuch could get confirmed to the Supreme Court without having to find the votes needed to overcome a filibuster.
“It was a stinging defeat that I tried not to take personally,” MacDonough recalled in her speech to the graduating students. “The one thing I can tell you about situations like this. It will never feel good, or rewarding enough, to say, ‘I told you so,’ when people finally understand the point of which you are trying to convince them.”
MacDonough — and, in turn, Roberts — may end up breaking new ground during the Trump impeachment trial. Chief justices have only presided over two Senate trials involving presidents, and neither left much in the way of precedent. Back in 1868, the parliamentarian’s role didn’t even exist when Chief Justice Salmon Chase opted for a highly assertive role during the trial of President Andrew Johnson, which ended in his acquittal.
More than a century later, the Senate parliamentarian’s office built a dossier as it geared up for a Nixon trial that then-Chief Justice Warren Burger would have overseen. While the Senate never got that case, the parliamentarian at the time, Floyd Riddick, explained in an interview with the Senate historian that his research backed up the notion that the parliamentarian would be essential for any future chief justice who presides over another impeachment trial.
“I would assume that the chief justice, whether he always followed the advice of the parliamentarian or not, would at least want him there to give him the benefit of what the practices of the Senate had been, and then he would have the same right that all presiding officers have to ignore the advice of the parliamentarian and rule as he wanted,” ddick said.
At Clinton’s 1999 trial, Chief Justice William Rehnquist tried to maintain a hands-off approach.
He later told TV interviewer Charlie Rose that he “did nothing in particular and I did it very well.” But Rehnquist, who had written his own book in part about the Andrew Johnson impeachment trial, did issue several controversial rulings, including one instance in which he ignored the advice of the parliamentarian to rule that the 100 senators shouldn’t be referred to as “jurors.”
Frumin, the parliamentarian at the time, recalled that he hadn’t been expecting the issue to come up, forcing him to scramble in real time to find the right materials while still paying attention to the debate. But Rehnquist, as was his right, made his own decision.
For Trump’s trial, Frumin will be on the CNN set offering commentary and insights on the Senate’s unique protocols, including the role that MacDonough will play at Roberts’ side. He doesn’t expect her to wilt in the spotlight.
“Parliamentarians have been trained over the years that you’re the referee,” Frumin said. “You’re not a player. And that you don’t create controversy. You don’t look for controversy. You don’t assert yourself. You’re there as a reference to make a call or give advice when called upon. I think she’ll do everything to prevent herself from becoming the story.”
John Bresnahan contributed to this report.
Every liberal legislative promise from a Democratic presidential candidate—from Beto O’Rourke’s $5 trillion climate-change plan to Elizabeth Warren’s wealth tax to Bernie Sanders’ Medicare for All idea—comes with an asterisk: the U.S. Senate.
In a Democratic president’s worst-case scenario, Republicans retain control of the Senate in 2020 and Majority Leader Mitch McConnell (R., Ky.) plays the grim-reaper role he relishes, creating a graveyard for Democratic legislation.
But even if Democrats regain the Senate, the fate of environmental, health and tax policy will be constrained by a handful of more moderate Democrats. Even if Democrats change Senate rules to let any legislation pass with a bare majority, they would still likely need to keep both wings of the party satisfied to muster at least 50 votes for their top priorities.
The dynamic is a reminder that the Democratic Party as a whole isn’t necessarily on board with some of the more liberal proposals of the party’s presidential contenders.
“Under the most optimistic scenario, I can guarantee there will be at least a handful of Senate Democrats who will be dead-set against doing what the advocates will be pushing for,” said Jim Manley, an aide to former Senate Majority Leader Harry Reid (D., Nev.) “There’s still a real question about how much you can get done.”
This reality check looms over campaign-trail policy proposals that candidates make a central part of their stump speeches. A Democratic president trying to expand on President Obama’s accomplishments or roll back President Trump’s achievements will find those ideas shaped by the aims of a few senators.
One, for example, is West Virginia’s Sen. Joe Manchin. He voted against Mr. Trump’s tax law, wants improvements to the Affordable Care Act and wants to address climate change.
But he hasn’t sponsored plans for a fully government-run health-care system. He has described his climate-change approach as pragmatic and advocates an all-of-the-above energy policy that reflects the needs of his coal-producing state.
It is early, for sure, but Mr. Manchin—along with Arizona’s Kyrsten Sinema, and Alabama’s Doug Jones, if he survives re-election next year—could find themselves at the Senate’s pivot point. Democrats currently hold 47 seats in the Senate, putting the majority within reach.
Democrats are targeting Republican incumbents in Iowa, Maine, Georgia, Colorado, Arizona and North Carolina and defending Mr. Jones on GOP turf in Alabama. None will be easy, and Democrats need a net gain of three for a majority if they have a vice president’s tiebreaking vote.
To Senate watchers, the moderate in the middle is a familiar story, the unavoidable result of a more sharply partisan legislature. That is where Joe Lieberman, Ben Nelson and others were in 2009. The compromises they struck on health care removed the public-option insurance plan from what would become the Affordable Care Act and forced progressives into other concessions.
Senate Republicans are warning the White House that the 2012 presidential candidate will face one of the most difficult confirmation fights of Donald Trump’s presidency and are making a behind-the-scenes play to get the president to back off, two GOP senators said.
.. Republican senators have generally waved through Trump’s nominees over the past two years, but they are reluctant to do the same for the Fed, amid fears that Trump’s push to install interest-rate slashing allies will politicize the central bank.
The resistance comes as Senate Republicans also actively are pressing Trump to halt his purge at the Department of Homeland Security and reconsider economy-damaging auto tariffs.
Some GOP senators said that Cain’s difficult path might have eased Stephen Moore’s confirmation to the Fed, despite Moore’s own problems with unpaid taxes and his partisan reputation. After all, Republicans might be hard-pressed to revolt against both of Trump’s nominees.
..“I think the chances of getting both through, I would say at the moment, are pretty steep,” Thune said.
Neither Moore nor Cain has been officially nominated. A senator familiar with the nominations said Trump is “full speed” ahead on Cain even though FBI background checks and documentations of sexual harassment allegations have not yet been submitted to the Senate. A person familiar with the process expects the background check to raise more questions about Cain.
With that in mind, Republicans are trying to dissuade Trump from a brutal political fight that would highlight intraparty divisions; the nominations need a simple majority and no Democratic support can be counted on.
Trump’s intent to nominate Cain marks one of his most brazen moves yet to take on his own party, coming on the heels of his emergency declaration at the southern border that went against the wishes of GOP senators who stood by Trump during the shutdown.
And once again, Republicans are sending the president clear signals: Pick someone with less partisan credentials and less baggage. While Cain did serve on the Kansas City Federal Reserve Board, Senate Republicans say he now largely appears to be a Trump surrogate.
“I don’t think Herman Cain will be on the Federal Reserve Board, no. I’m reviewing [Moore’s] writings and I’ll make a determination when I have done so,” said Sen. Mitt Romney (R-Utah), who ran against Cain in the 2012 presidential race and seems confident Cain will either be derailed or not officially nominated.
“I feel that we can’t turn the Federal Reserve into a more partisan entity,” Romney added. “I think that would be the wrong course.”
.. Cain later endorsed Romney in 2012, but one of Romney’s colleagues said the Utah senator “is not fond of Herman.” Cain also challenged Sen. Johnny Isakson (R-Ga.) in a 2004 Senate primary race.
But more troubling to some in the Senate is that Cain founded pro-Trump group America Fighting Back.
“Do you seriously want a guy on the Fed that has a whole organization, the only purpose of it is to encourage Republicans to do whatever the president says he’d like you to do?” said one Republican senator distressed about the nomination. The senator said confirming Cain would be “hard,” but his nomination alone “might confirm Stephen Moore.”
Cain’s group recently said in a fundraising request that Republicans who opposed the president’s emergency declaration were “traitors.”
The rosier reception for Moore comes in part because Republicans will be reluctant to reject two of Trump’s Fed nominees, given their desire to protect their already shaky relationship with the president. In addition to their opposition to Trump’s tariff threats and his shake-up at the Homeland Security Department, Republicans also recently forced him to back off his demand for a new GOP health care bill.
Yet it’s not clear at all that the president is keeping in mind the fact that he will need to get 50 of 53 Senate Republicans to vote for these nominees. Asked about Cain, Sen. Pat Roberts (R-Kan.) said only: “I was not aware it was that serious of a consideration.”
Stressing that he was not singling out Cain, Sen. John Cornyn (R-Texas), a whip for six years, said the White House must simply do more to consult with Capitol Hill.
“It’s really important for the White House to work with us as they’re contemplating nominees to make sure that both the White House has reasonable expectations about confirmations. We can also communicate with the White House about what the challenges of a confirmation may be,” Cornyn said.
.. It’s not clear the president quite realizes the scale of the potential task ahead to confirm his two Fed picks. A half-dozen GOP senators are bracing for competitive races next year and do not want to be seen as Trump’s lackeys. Voting against those nominees could help them assert their independence in their voting record.
Then there are senators like Romney and Isakson who have shown little fear in confronting Trump of late. Romney voted against Trump’s national emergency declaration, while Isakson stepped into a void of Senate Republicans to defend the late Sen. John McCain (R-Ariz.) from Trump’s attacks.
They won’t be alone in scrutinizing these nominees.
“Mr. Cain did serve on the regional Federal Reserves, so that is good experience. His wanting to return to the gold standard is something that is very controversial. And I don’t know the details at this point about the sexual harassment allegations against him,” said Sen. Susan Collins (R-Maine). “Stephen Moore appears to have a host of financial and other issues that are going to need to be explored, as well as the fact that he is a very unconventional choice.”
Spending bills need 60 votes to clear procedural hurdles in the Senate, where Republicans hold a 51-49 edge.
Later Friday morning, the president encouraged Mr. McConnell to change the rules of the Senate to enable spending bills to pass with a simple majority instead of the 60 votes required to clear procedural hurdles.
“Mitch, use the Nuclear Option and get it done! Our Country is counting on you!” Mr. Trump wrote on Twitter.
The conservative case for a Republican Senate and a Democratic House.
.. Let me suggest a third option. If you are a conservative who is moderately happy with some of Trump’s policy steps, fearful of liberalism in full power, but also fearful of Trump untrammeled and triumphant, the sensible thing to root for — and vote for — is the outcome that appears most likely at the moment: A Republican majority in the Senate and a Democratic majority in the House of Representatives.
.. The best argument for conservative support for Donald Trump was always defensive: Elect him and you prevent the installation of a long-term liberal majority on the Supreme Court, and perhaps chasten the Democratic Party and arrest its leftward march.
For that argument to persuade, you had to trust the institutional Republican Party’s promise to contain Trump’s authoritarian instincts and restrain his follies. You also had to downplay the long-term damage, to conservatism and the body politic, of putting someone with such poisonous rhetorical habits in the bully pulpit.
.. so far Trump has been more constrained and less destructive than I expected — his foreign policy less destabilizing (so far) than either of his predecessors, his cruelest policy instincts walked back under pressure, the country more prosperous, his appointments more responsible and a large-scale investigation into his possible crimes proceeding, beset by Trumpian insults but otherwise mostly unimpeded by the White House.
To the extent that any Republicans deserve credit for this constraint, though, they are mostly elected Republicans in the Senate. The House is more pure, uncut MAGA, more reflexive in its defense of a president whose behavior is often indefensible, more poisoned by the worst Trumpist tendencies (witness the steady migration of the Iowa congressman Steve King toward an overt white nationalism) and more inclined to allow Trump a free hand should he seek to make his actual presidency exactly like his Twitter feed.
.. So a Democratic House would supply a much more effective check on that temptation, along with more vigorous scrutiny of corruption in the White House, about which congressional Republicans have been studiously incurious. And it would offer that check without jeopardizing any potential conservative legislative achievements — because, let’s be frank, the congressional G.O.P. isn’t going to do anything serious with its power if it gets re-elected except confirm judges, and you don’t need the House to elevate Amy Coney Barrett if there’s one more high court vacancy.
.. for the genuinely populist sort for conservative (that is, the best kind), having a Democratic House might force Trump himself back toward the economic populism of his campaign, which he mostly abandoned but has suddenly remembered in the last days before the midterms, talking up a phantom middle-class tax cut and proposing an “America First” approach to drug pricing.Given the more favorable Senate map and the possibility of a recession, Democrats can reasonably hope to retake the upper chamber in the next four years no matter what. And it will go much worse for the right if that Democratic majority has 60 seats in that scenario as opposed to 52 — something that will be determined by this fall’s election as much as by what happens two or four years hence.
Of course, if you’re a Trump skeptic who believes that only an earth-salting defeat will enable the re-emergence of a decent right, then trying to constrain a future liberalism will seem less important than rooting for the necessary disaster to arrive for Republicans today. But I don’t think our polarized system lends itself to salt-the-earth defeats anymore, and I also don’t think that parties necessarily emerge from them wiser than before — since in such defeats they’re condensed to their more fervent and often foolish core.
In 1991, the Senate Judiciary Committee had an opportunity to demonstrate its appreciation for both the seriousness of sexual harassment claims and the need for public confidence in the character of a nominee to the Supreme Court. It failed on both counts.
As that same committee, on which sit some of the same members as nearly three decades ago, now moves forward with the Kavanaugh confirmation proceedings, the integrity of the court, the country’s commitment to addressing sexual violence as a matter of public interest, and the lives of the two principal witnesses who will be testifying hang in the balance.
.. the public expects better from our government than we got in 1991, when our representatives performed in ways that gave employers permission to mishandle workplace harassment complaints throughout the following decades.
.. That the Senate Judiciary Committee still lacks a protocol for vetting sexual harassment and assault claims that surface during a confirmation hearing suggests that the committee has learned little from the Thomas hearing, much less the more recent #MeToo movement.
.. To do better, the 2018 Senate Judiciary Committee must demonstrate a clear understanding that sexual violence is a social reality to which elected representatives must respond.
.. The details of what that process would look like should be guided by experts who have devoted their careers to understanding sexual violence.
.. Select a neutral investigative body with experience in sexual misconduct cases that will investigate the incident in question and present its findings to the committee. Outcomes in such investigations are more reliable and less likely to be perceived as tainted by partisanship. Senators must then rely on the investigators’ conclusions, along with advice from experts, to frame the questions they ask Judge Kavanaugh and Dr. Blasey.
.. The investigators’ report should frame the hearing, not politics or myths about sexual assault.
.. Do not rush these hearings. Doing so would not only signal that sexual assault accusations are not important — hastily appraising this situation would very likely lead to facts being overlooked that are necessary for the Senate and the public to evaluate.
.. Process is important, but it cannot erase the difficulty of testifying on national television about the sexual assault that Dr. Blasey says occurred when she was 15 years old. Nor will it negate the fact that as she sits before the Senate Judiciary Committee, Dr. Blasey will be outresourced. Encouraging letters from friends and strangers may help, but she cannot match the organized support that Judge Kavanaugh has.
The largest tax reduction in 31 years has contributed to the best economy in 18 years. Defense spending is up, many Dodd-Frank banking rules and the Obamacare individual mandate have been repealed. Drilling in the Arctic National Wildlife Refuge, blocked for 38 years, has been approved, as has a reconfigured National Labor Relations Board, a source of much Obama administration mischief. The Congressional Review Act, under which Congress can disapprove many regulations issued by federal agencies, has been used 19 times since it was enacted in 1996 — 18 of them during this Congress.
.. This, says McConnell, constitutes the best 18 months of center-right governance in his Senate career, which began when Ronald Reagan’s second term did. There also are the judges.
.. By preventing a vote on President Barack Obama’s nomination of Merrick Garland
.. McConnell ended the requirement of a supermajority to stop filibusters of Supreme Court nominees
.. To prevent Republicans from reciprocating with filibusters against Obama’s packing-by-enlargement of the nation’s second-most-important court, the U.S. Court of Appeals for the District of Columbia Circuit, Democrats changed Senate rules to bar filibusters of judicial nominees other than those for the Supreme Court. McConnell removed that pointless exemption to make possible the confirmation of Neil M. Gorsuch.
.. But without filibusters of legislation, he says, the nation might have socialized medicine, guaranteed government jobs, card-check workplace unionization, a ban on right-to-work laws, and other afflictions.
.. since popular election of senators began in 1914, Republicans have never had more than 60 senators.
.. Almost 30 years after the end of his presidency, Reagan still shapes events because of his nomination of Justice Anthony M. Kennedy, who often has been 20 percent of a court majority. Three decades from now, McConnell will be shaping the nation through judges who today are in their 40s, some of whom might be destined to be Gorsuch’s colleagues. This is the long game.