Criminal justice reform faces a make-or-break moment

A long-stalled criminal justice reform effort is facing a make-or-break moment: winning over President Trump’s support.

A bipartisan group of senators involved in talks has reached a deal to pair a House-passed prison reform bill with a handful of sentencing reform measures, according to two GOP aides. Advocates hope to get legislation to the president’s desk by the end of the year.

{mosads}But whether the bill can gain the traction it needs among Republicans, who are wary of being viewed as weak on crime, boils down to Trump.

Despite having lukewarm national approval, the president holds enormous sway over his party’s base and congressional Republicans, who have avoided picking a fight with him.

Supporters on and off Capitol Hill are hoping to win his blessing on the legislation in order to overcome a small, but vocal, group of conservative opponents who have dug in and helped poison the chances of passing criminal justice legislation in recent years.

Jason Pye, the vice president of legislative affairs for FreedomWorks, said he felt “pretty good” about the prospects for the Senate compromise legislation, crediting the White House and Trump for keeping the prospects of legislation alive during a heated, and deeply partisan, midterm year.

“I don’t think we would be where we are right now without the White House’s support, particularly the president,” he said. “I think the votes are there … but it’s unlikely it’s going to come to the floor without the president’s support.”

A GOP aide acknowledged that Trump is the “wildcard” in the criminal justice bill’s chances.

Trump’s verdict on the bill could come as soon as this week, after the issue was kicked to the lame-duck session of Congress.

The aide told The Hill that Trump’s son-in-law and adviser Jared Kushner, who has been at the center of the Senate negotiations, briefed the president on the agreement Tuesday at the White House.

The White House did not respond to multiple requests for comment.

The deal under discussion would link the House’s prison reform bill with four sentencing provisions, according to draft legislation and bill summaries viewed by The Hill.

The sentencing provisions include reducing lifetime mandatory minimum sentences after two prior felony drug convictions to at least 25 years; reducing minimum sentences after one prior conviction from 20 to 15 years; and making the Fair Sentencing Act retroactive.

It also would expand an existing safety valve for mandatory minimum sentencing that would not apply retroactively.

While one Republican staffer said the group of senators had a deal, a second said that changes were still possible until the bill is formally filed but characterized the legislation as being largely settled among the group of senators.

Underscoring the wariness of getting out ahead of the president, Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary Committee, hasn’t formally introduced the legislation — which was negotiated along with Sens. Dick Durbin (D-Ill.), Mike Lee (R-Utah) and Lindsey Graham (R-S.C.) — even as the broad framework has been in place for months.

Republican leadership has refused to move previous criminal justice bills from Grassley and Durbin, even though supporters say they had the votes to pass, in an effort to avoid putting a spotlight on GOP divisions.

And even as chatter of a potential agreement spread, some senators pushed back hard against talk of an agreement, arguing there wasn’t a deal until Trump signs off on the details of the legislation.

“There won’t be any agreement on a criminal justice reform compromise unless and until President Trump supports it and asks the Republicans who control both chambers of Congress to move it forward,” said Emily Hampsten, a spokeswoman for Durbin.

Grassley said on Tuesday night that he had not gotten an update on the White House meeting but that his colleagues sounded “positive” about the bill.

Graham added that he spoke with the president as recently as Monday about the issue. If, and when, Trump gives a thumbs up to the legislation, Grassley is expected to formally introduce the bill almost immediately.

“I talked to the president last night about it. I think now’s the time to do it,” Graham said. “I think the stars have aligned politically and now would be a good time to do it.”

It wouldn’t be the first time a bipartisan group of senators involving Durbin and Graham thought they had an agreement only for it to be quickly killed by Trump and conservatives.

Durbin and Graham went to the White House in January to brief the president on a compromise immigration bill only to find conservatives, including Sen. Tom Cotton (R-Ark.), waiting for them at the White House. The proposal quickly unraveled in the face of the showdown, and Congress has failed to pass immigration legislation for months.

Cotton has given no indication that he’s moved on criminal justice legislation. In August, he used a Wall Street Journal op-ed to warn Trump against cutting mandatory minimum sentences for serious crimes or giving judges more discretion to reduce those sentences.

“That foolish approach is not criminal-justice reform—it’s a jailbreak that would endanger communities and undercut President Trump’s campaign promise to restore law and order,” Cotton wrote.

A senior White House official told The Hill at the time that they didn’t believe they needed unanimous support among the Senate Republican conference for the bill to ultimately pass.

Pye added that while there are “some opposing voices” within the caucus, including Cotton, they “do not reflect the sense of the Senate Republicans as a whole,” and said he expects a bill could get more than 70 votes.

Prospects for criminal justice legislation have been steadily gaining steam heading into the lame-duck.

Senate Majority Leader Mitch McConnell (R-Ky.) pledged last month that he would give the bill a whip count and that if it has the 60 votes needed to pass — which Senate supporters and outside groups believe it does — he would find time to bring it to the Senate floor.

In a major boost to combat “weak on crime” accusations, the Fraternal Order of Police, the largest law enforcement labor organization in the U.S., endorsed the bill on Friday, crediting Trump and his staff for working with them on the bill. And Kelley Paul, Sen. Rand Paul’s (R-Ky.) wife, is lobbying senators this week, including conservatives and female members, to urge them to back the bill and press McConnell to bring it up for a vote.

One final curveball could come from Democrats, who will hold the House majority in the next Congress. Republicans and advocates are hoping Durbin’s involvement, and the difficulty of passing legislation, will quell political jockeying from 2020 White House hopefuls and talk of potentially kicking the legislation into next year, when Democrats will have more leverage.

“That is at the forefront of my mind,” Pye said. “Sen. Durbin is going to be key in convincing House Democrats not to overstep.”

Sen. Amy Klobuchar (D-Minn.) — a potential 2020 candidate — weighed in Tuesday in a tweet, urging lawmakers not to miss the window for passing criminal justice legislation and calling it at an “important opportunity that shouldn’t be lost.”