Federal Legislation – In the Thick of It (Impeachment) 

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

The slow-moving drama of President Donald Trump’s impeachment has continued to dominate Washington. Our articles in this space have spent the last several months discussing impeachment’s progress through the House of Representatives, and the process has now officially moved to the Senate. How did it get there, and what happens next?

The House Finishes Its Work

As PORAC’s January magazine went to print, the House was in the process of drafting articles of impeachment prior to a vote. In the final version of those articles, President Trump was impeached for “abuse of power,” in relation to his interactions with Ukraine, and “obstruction of Congress,” for his administration’s refusal to comply with multiple subpoena requests from the House. On December 18, these articles were passed on a largely party-line 229–198 vote, with one Democrat, Representative Jeff Van Drew of New Jersey, even switching parties after voting no.

Simply approving the impeachment articles is not, however, the end of the House’s role in the process. The House must transmit those articles to the Senate, which starts the Senate’s trial, and also must vote on the appointment of “impeachment managers,” a group of lawmakers who will essentially act as prosecutors during the trial. Generally, a vote on impeachment managers and transmittal occurs shortly after approval of the articles. In this case, however, Speaker of the House Nancy Pelosi (D-Calif.) decided to withhold the articles from the Senate, hoping that a delay would put pressure on Senate Majority Leader Mitch McConnell (R-Ky.) to clarify the details of the trial process. McConnell, for his part, maintained that he was under no obligation to reveal details and that he had the votes to advance trial rules with only Republican support.

The stalemate endured over the holidays and into the new year before Pelosi ultimately opted to transmit the articles without precondition. On January 15, she announced her team of impeachment managers:

  • Intelligence Committee Chairman Adam Schiff (D-Calif.)
  • Judiciary Committee Chairman Jerry Nadler (D-N.Y.)
  • Representative Zoe Lofgren (D-Calif.)
  • Representative Val Demings (D-Fla.)
  • Representative Hakeem Jeffries (D-N.Y.)
  • Representative Jason Crow (D-Colo.)
  • Representative Sylvia Garcia (D-Texas)

The appointment of these impeachment managers was approved on a 228–193 party-line vote. That same day, Demings, along with the other impeachment managers, physically carried the articles across the United States Capitol to the Senate. The following day, January 16, the impeachment managers, led by Schiff, formally read the articles to the Senate, marking the official start of the trial.

The Senate Takes Over

The Constitution clearly establishes that, when a federal official is impeached, the Senate acts as a jury and the chief justice of the Supreme Court, in this case, John Roberts, presides. However, it is much more ambiguous regarding the actual conduct of the trial. Senators must be physically present, but beyond this basic requirement the Senate has significant leeway to govern a trial as it sees fit. At the time this article went to print, the rules had not yet been approved.

But, nevertheless, the trial has begun. Immediately following the formal presentation of the impeachment articles by Schiff, Roberts administered the oath to “do impartial justice” to all 100 senators, who also signed the oath in writing. Now, the Senate must formulate, debate and approve the rules under which the trial will be administered.
As previously mentioned, the shape of those rules will take is unknown. However, McConnell has given away a few hints, noting that he would like the trial to resemble the impeachment proceedings during the Clinton administration. That could mean:

  • The Senate meets every day except for Sundays, as it did during the Clinton trial.
  • Formal legal briefs from the White House and the House of Representatives may be drafted and filed, leading to a brief break in the actual trial portion of the proceedings.
  • There may be multiple days of arguments from both the impeachment managers and the president’s legal team, followed by multiple days of questioning.
  • There may be several days of deliberations and closing arguments before a vote.

It could also mean witnesses, or not. Whether McConnell will allow witnesses to be called is a contentious question, and one that remains unresolved. Whatever the answer, it will be decided soon. From the time this issue goes to print until a verdict is reached, the Senate will focus solely on impeachment. Only time will tell how the trial proceeds.

What It Means for Law Enforcement

What does this all mean for law enforcement issues in Congress, and for PORAC priorities in particular? In all likelihood, not much. While the Senate will be taken out of the legislative process for several weeks, an unfortunate loss of time in a year already likely to be light on legislating due to the election cycle, the House, including relevant committees such as Judiciary, is now unencumbered by impeachment.

In addition, Congress as a whole has taken pains to show that it is able to accomplish work regardless of the impeachment proceedings, with both the House and Senate passing President Trump’s new trade deal with Mexico and Canada, the United States–Mexico–Canada Agreement (USMCA), prior to the trial. It is possible that PORAC priorities such as law enforcement funding, the Improving Community Safety Task Force Act, and the Public Servants Protection and Fairness Act are able to find similar bipartisan support. As PORAC’s voice in Washington, Steptoe will continue to advocate on these issues and others in the coming weeks and months.

Federal Legislation – Chaos on Capitol Hill

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

It’s finally happened. Here in Washington, it’s all anyone can talk about. The headlines have been impossible to escape, and there’s a new development every day. Hot takes have been fired off faster than the presses can print them.

Speaker of the House Nancy Pelosi (D-Calif.) and House Democrats have pulled the trigger and launched an impeachment inquiry into the conduct of President Donald Trump.

The inquiry, thus far, has focused narrowly on a phone call between President Trump and Ukrainian President Volodymyr Zelensky, in which President Trump pressed for an investigation into the former vice president and current Democratic presidential candidate  Joe Biden. Now, the House will conduct its own investigation into whether the president’s behavior reaches the level of impeachable “high crimes and misdemeanors” before deciding whether to send the matter to the Senate for a trial.

While the question of the criminality of the behavior is for the House to investigate and the Senate to decide, there is a separate, equally relevant question: What does this mean for an already dysfunctional Congress and the work it needs to do?

There’s no easy answer. While Speaker Pelosi and Senate Majority Leader Mitch McConnell (R-Ky.) have at least hinted at a desire to keep the wheels of government moving regardless of impeachment, the process will inject a significant amount of instability into what was already a fraught political situation. Important issues such as surprise medical billing and the United States–Mexico–Canada trade deal (commonly referred to as the new NAFTA) negotiated by President Trump were already on tenuous ground; it is hard to see how impeachment improves their prospects.

One deadline, in particular, looms — November 21, when the continuing resolution (CR) passed and signed in September expires and, unless action is taken, the federal government will shut down for the second time this year. While the Senate has been making some progress on its own set of funding bills and the House passed its package in July, there is always the possibility that talks between the Senate, House and President Trump could break down along the same fault lines as they have in the past. An unpredictable impeachment inquiry only adds another unavoidable obstacle.

In addition to the looming possibility of a government shutdown given the November 21 deadline, vital funding for state, local, and tribal law enforcement grant programs administered by the U.S. Department of Justice is also at stake. As such, PORAC has nothing but appreciation for California Democratic
Representatives Josh Harder, Grace Napolitano, Mike Thompson, Jimmy Panetta, Jim Costa, TJ Cox, and Anna Eshoo, all of whom signed on to a letter (reprinted at the end of this article) urging congressional leadership to prioritize law enforcement funding and maintain the high levels of funding passed by the House. PORAC applauds these lawmakers for standing up for the funding that helps law enforcement keep our communities safe. 

House Ways and Means Chairman Richie Neal Introduces WEP Reform Bill

Despite the uncertainty currently permeating Washington, some legislative business has continued. In a notable example, House Ways and Means Chairman Richie Neal (D-Mass.) introduced his long-awaited legislative fix for the Social Security Windfall Elimination Provision (WEP) — H.R. 4540, the Public Servants Fairness and Protection Act — on September 27.

The WEP has long been a target of PORAC and public employee groups across the country. It reduces the Social Security benefit for workers who are receiving a government pension and as such affects most public employees, including teachers and law enforcement officers. While originally envisioned as a way to ensure that government workers did not receive both a pension and a large Social Security benefit, the effect has instead been to deprive state and local government workers, including law enforcement officers, of the benefits they have earned.

The Public Servants Fairness and Protection Act, as introduced by Representative Neal, seeks to fix the current formula. H.R. 4540 replaces WEP with a new formula called the Public Servant Protection (PSP) formula. Rather than the current and rather arbitrary formula, the PSP would base Social Security benefit payments on the percentage of earnings that were covered by Social Security. Additionally, while the PSP itself is delayed in taking effect, H.R. 4540 stipulates that an extra $150 be added to the benefit of every current retiree who is affected by the WEP. Finally, in a key provision, H.R. 4540 guarantees that no current or future retiree will be worse off under the new formula.

H.R. 4540 is not the first WEP reform bill to have been introduced in this session of Congress. In January, Representative Rodney Davis (R-Ill.) introduced H.R. 141, the Social Security Fairness Act. A Senate companion bill, S. 521, was later introduced by Senator Sherrod Brown (D-Ohio). The Social Security Fairness Act would eliminate the WEP entirely rather than make the more technical fixes prescribed by H.R. 4540. PORAC leadership looks forward to discussing each fix to the WEP with members of Congress during its fall advocacy visit to Washington.

PORAC Heads to Washington

At the time this issue went to print, the PORAC Executive Committee was less than a week away from their semiannual fly-in to Capitol Hill. President Brian Marvel, Vice President Damon Kurtz and other PORAC officers are meeting with senators and representatives from the California delegation on a multitude of issues, including, as previously mentioned, WEP reform. In addition, PORAC will be meeting with members of Congress on federal funding, stressing the need for improved relations between law enforcement officers and the communities they serve and registering their opposition to the national use-of-force bill, H.R 4359, which was recently introduced by Congressman Ro Khanna (D-Calif.). PORAC is excited for the opportunity to bring the issues important to its members to Washington and to advocate on their behalf.

Expect a full report on PORAC’s advocacy in Washington in next month’s issue.

 California Representatives’ Letter to Congressional Leadership on Law Enforcement Funding

As previously mentioned, on September 18, Members of Congress Josh Harder, Mike Thompson, Jim Costa, Anna G. Eshoo, Grace Napolitano, Jimmy Panetta and TJ Cox (all D-Calif.) sent the following letter to House and Senate leaders.

Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:

Thank you for your leadership of the U.S. House of Representatives and the U.S. Senate. We appreciate the opportunity to work together to support the American people. With the recess behind us, our attention now turns to crafting a compromise on an end of year funding bill to keep the government funded through the 2020 Fiscal Year. While there are many important issues at stake during this effort, our responsibility to ensure robust funding for the state and local law enforcement officers that keep Californians and all Americans safe is paramount.

This critical funding is provided through a number of federal grant programs and direct spending initiatives administered through the Department of Justice (DoJ). In June, the House of Representatives passed a Commerce-Justice-Science appropriations package that expanded funding for law enforcement over FY 2019 levels. The vital appropriations included:

  • $530.25 million for Edward Byrne Justice Assistance Grants (compared to $497 million in FY19);
  • $323 million for the Community Oriented Policing Services (COPS) program (compared to $303.5 million in FY19);
  • $581.5 million to fund the Violence Against Women Act (VAWA);
  • $100 million to support survivors of human trafficking;
  • $2.357 billion for the Drug Enforcement Agency (DEA) to fund additional anti-opioid and gang efforts; and
  • $501 million in assistance to state and local governments for grants authorized by the Comprehensive Addiction and Recovery Act, as well as other opioid-related activities.

Not only do these programs equip California law enforcement officers with the resources they need to protect communities across the state, but they also provide the means to effectively combat broader issues facing Californians and all Americans.

As the Senate considers its own spending measures, I urge you to resist cuts to law enforcement programs. Day in and day out the brave men and women of state and local law enforcement in California and across the country risk their lives to fulfill their duty and keep their neighbors safe. We must now fulfill our duty, and ensure they have the critical resources they need to do their jobs safely, efficiently, and humanely.

Thank you for your time and consideration regarding this request.