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CARTE BLANCHE: If you're a president running for reelection, Alan Dershowitz would let you do anything.
In the ongoing Senate impeachment trial, Dershowitz argued yesterday that if President Trump believes his own reelection is in the public interest, and “does something that he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
The startling assertion came after another attorney on Trump's legal team, Patrick Philbin, claimed that if the president's actions are motivated even partly by any legitimate public purpose, “it can't possibly be an offense.”
- “Every public official that I know believes that his election is in the public interest,” Dershowitz stated. “And mostly, you’re right. Your election is in the public interest.”
- Dershowitz's new talking point stands “in stark contrast to a key argument by Trump’s most ardent defenders in Congress and his own legal team: that a quid pro quo never happened,” per our colleagues Rachael Bade, Karoun Demirjian, Mike DeBonis, and Ann Marimow.
They said what?: This eyebrow-raising claim is just the latest example of Trump's allies arguing for sweeping executive powers that would appear to undermine the system of checks and balances envisioned by the framers of the Constitution.
With these friends …: Dershowitz's former colleagues, students and fellow lawyers excoriated the Harvard Law School professor emeritus for presenting an argument they warned essentially renders the impeachment process meaningless.
- “It is the most ridiculous thing I’ve ever heard that basically the president can decide that he can bring in foreign assistance in an election and violate the law and extort people and bribe people to what he thinks is in the public interest because it’s in the public interest to get him elected,” Nick Akerman, a former Watergate prosecutor, told Power Up.
- “He argued that if the president shot someone in the public square but believed it was in the public interest, it wouldn't be an impeachable offense,” said J.W. Verret, a law professor at George Mason University. “But dictators always believe that what they are doing is in the best interest of the public — that's the essence of an autocracy.”
- Professor Charles Fried, Dershowitz's old colleague at Harvard Law, remarked that Dershowitz actually made the “very best argument for getting Bolton’s testimony” to determine Trump's motives and whether they're “different from in the national interest to be reelected.”
- Verret added that motivation is determined in trials all of the time: “Using witness statements or inference from evidence — I think that there are nearly a dozen witness accounts that already show Trump's motivation. The fact that there were no other corruption investigations [into Ukraine] by Trump show a lack of public interest in motivation,” Verret told us.
- “Taken at face value, this would include illegal acts — even major felonies,” Ed Larson, a professor at Pepperdine University, told Power Up of Dershowitz's claims. “A president cannot be free to break the law to get himself reelected, even if he feels that unlawful activity would ultimately serve the public interest by his reelection. The framers expressly identified corrupt elections as a grounds for impeachment. Indeed, it was that very concern that brought [Pennsylvania delegate] Gouverneur Morris — the highest of the high federalists, champion of a strong executive, and architect of the electoral selection process — on board with supporting the impeachment power at the constitutional convention.”
Nevertheless, Republicans yesterday seemed to inch closer to preventing additional witnesses from being called in the Senate trial, which could wrap as soon as tomorrow — likely with an acquittal vote for Trump — if the witness vote is rejected.
- “I have heard enough,” Sen. Martha McSally (R-Ariz.), who is up for reelection in a swing state, tweeted. “It is time to vote.”
- Sen. Cory Gardner (R-Colo.), also running in November, said he opposed calling witnesses: “I do not believe we need to hear from an 18th witness. I have approached every aspect of this grave constitutional duty with the respect and attention required by law, and have reached this decision after carefully weighing the House managers and defense arguments and closely reviewing the evidence from the House, which included well over 100 hours of testimony from 17 witnesses.”
- Minority Leader Charles E. Schumer (D-N.Y.) weighed in on the possibility of winning enough Republican support: “Is it more likely than not? Probably no. But is it a decent, good chance? Yes.”
Roberts rules?: Here's a possible scenario picking up steam inside the Capitol: that Supreme Court Chief Justice John G. Roberts Jr., who is presiding over the trial, could break a Senate tie on calling witnesses.
- “That is a great unknown. There’s no way to know procedurally what he would do. Or if he’ll do” anything, said Sen. James Lankford (R-Okla.) told Politico's Burgess Everett and John Bresnahan.
- House manager Adam B. Schiff (D-Calif.) invoked Roberts's potential role in the witness calls, aimed at those concerned by trial delays: “Is the chief justice empowered under the Senate rules to adjudicate questions of witnesses and privilege? And the answer is yes.”
- “They’re afraid he’ll be fair,” he said of Trump's legal team. “They’re afraid he’ll make a fair ruling. "
There were 93 questions asked during today's session.— Senate Cloakroom (@SenateCloakroom) January 30, 2020
It wasn't just the Dershowitz of Wednesday that had legal scholars shaking their heads. Earlier in the week, Republicans latched on to Dershowitz's argument that even if the allegations against Trump proved to be true, his actions are not impeachable.
- “High crimes and misdemeanors decidedly doesn't need to be tasked a crime — it's meant to encompass all sorts of crime that involves a violation of the public trust,” Marisa Maleck, a former law clerk to Supreme Court Justice Clarence Thomas, told us. “The first impeachment was of a judge who was impeached for public intoxication."
- “It's creating misinformation as to what the definition of what 'high crimes and misdemeanors' is,” Maleck explained. “There is room for what it cover. But to perpetrate the idea that it has to be tied to a specific crime is indicative of a larger theme of disinformation in the Trump era.”
- Schiff addressed why they didn't include 'bribery' last night: “The question was asked, why didn't we charge bribery?” Schiff said. “And the answer is, we could have charged bribery. In fact, we outline the facts that constitute bribery in the article. But abuse of power is the highest crime. The framers had that in mind as the highest crime."
At The White House
FIGHT OVER BOLTON'S BOOK CONTINUES: “An attorney for John Bolton has pushed back against the White House’s assessment that his book manuscript contains classified material and asked for an expedited review of a chapter about Ukraine in case the former national security adviser is called to testify in the Senate impeachment trial,” our colleagues Tom Hamburger, Josh Dawsey and Karen DeYoung report. The White House has issued a formal warning to Bolton not to publish his upcoming book, “The Room Where it Happened,” without eliminating the allegedly classified material.
The request was made in a previously private email: “The Jan. 24 email to the White House from Bolton’s lawyer, Charles Cooper, was in response to a letter from the National Security Council a day earlier warning that the manuscript contained “significant amounts” of classified material that could not be disclosed publicly,” our colleagues write.
- Cooper said so far there's been no response: The exchange “signals the likelihood of a protracted dispute over the contents of Bolton’s book and whether he could testify about his knowledge of [Trump’s] activities related to Ukraine,” our colleagues write.
ELSEWHERE IN IMPEACHMENT NEWS:
Roberts is helping protect the whistleblower: “Chief Justice John G. Roberts Jr. has communicated to senators that he will not read aloud the alleged Ukraine whistleblower’s name or otherwise publicly relay questions that might out the official, a move that’s effectively blocked Sen. Rand Paul (R-Ky.) from asking a question,” Politico's John Bresnahan, Burgess Everett and Heather Caygle report.
You can crash a wedding, but not an impeachment trial: “Senators may be able to keep Lev Parnas from talking, but they couldn’t keep him from walking,” our colleagues Maura Judkis and Avi Selk report of Parnas's brief attendance of the trial.
- And that's how the cookie crumbles: A judge allowed Parnas to travel to D.C., but would not allow him to remove his ankle monitor. “Senate rules prohibited most electronic devices from the trial,” our colleagues write, “So, if he couldn’t say it in front of the Senate, he could say it here, in front of the Union Station Ladurée macaron shop."
DEAL WITH IT 😎: “With no Democrat in clear command of the race in Iowa, chatter and actual planning about caucus night team-ups are getting an early start,” our colleague David Weigel writes in the latest edition of The Trailer.
What's the deal?: “A decades-old rule that eliminates candidates who do not get 15 percent of the vote in a caucus room has gained extra resonance in a crowded race where voters view most of their candidates warmly,” our colleague writes.
- Why this happens: The major candidates — like former vice president Joe Biden and Sen. Bernie Sanders (I-Vt.) — probably won't have to worry about this. But with almost 1,700 precincts across the state, those who fail to reach the threshold may be looking to direct their supporters into the corner of another candidate.
- Who's talking: “Biden’s campaign has approached at least two rival primary campaigns, seeking to broker agreements ahead of the Monday night’s caucuses, according to sources familiar with his overtures. And an aide to Tom Steyer said Wednesday that his campaign had been approached by 'multiple candidates,'" Politico's David Siders, Elena Schneider and Eugene Daniels report.
Possible warning signs for Biden's ground game: “According to nearly a dozen county Democratic chairs and Biden activists around the state, [Biden’s] ground game has weak spots that threaten him with underperforming his polling in Iowa, where he has consistently been at or near the top,” the New York Times's Trip Gabriel reports.
- Why it matters: “Experienced Iowa strategists say a good ground game lifts a candidate’s support by two to three percentage points on caucus night,” the Times reports. “While that may not sound like a lot, it helps explain some past caucus surprises, most recently in the 2016 race: Donald Trump, who led in Iowa polls by an average of 4.7 percentage points on caucus day, had a poor ground game and wound up second behind Ted Cruz, who had an extensive organizing effort.”
How Elizabeth Warren has changed her message: “In a late shift in strategy, the campaign has supplemented, if not supplanted, its policy-driven messaging of 2019 with explicit talk about [Warren’s] identity as a female politician and her path to beating [Trump]. The 'I Have a Plan for That' candidate still talks about her big agenda, but with a newfound emphasis on how she’ll win, too,” the Times's Shane Goldmacher and Astead W. Herndon report.
- But her team has a backup plan: “Even as her poll numbers lag in crucial early states, the Massachusetts senator has built up organizations in places like Michigan, where her campaign was the first of any Democrat to open an office, in a bid to ride out a long nomination fight no matter what happens Monday in Iowa,” the Boston Globe's Jess Bidgood reports of their strategy to camp out in Super Tuesday states.
Why answering “Who won Iowa?” might be trickier than usual: Our colleague Philip Bump takes you through the changes to this year's caucuses.
Outside the Beltway
COMPANIES SCRAMBLE TO RESPOND TO CORONAVIRUS: “Some of the world’s largest corporations shuttered operations in China as the worsening coronavirus outbreak renewed concerns about their reliance on Chinese factories and threatened to take a lasting financial toll,” our colleagues David J. Lynch and Rachel Siegel report.
- More on what this means: “The enforced inactivity could rattle supply chains for products that are sold in U.S. stores and around the world,” our colleagues write. “Some of Apple’s Chinese suppliers, for example, now are scheduled to remain closed until Feb. 10, chief executive Tim Cook told investors Tuesday, adding that executives are 'working on mitigation plans to make up any expected production loss.'"
Most analysts remain upbeat but the situation is fluid: “The economic consequences of the fast-moving virus could snowball if the problem isn’t soon contained, some executives said,” our colleagues write. “China is the world’s second-largest economy and home to factories that produce machinery, computers, furniture and chemicals for customers on every continent."
The latest on the response: The World Health Organization will reconvene its emergency committee today to determine whether the “outbreak amounts to a public health emergency of international concern, as the total number of people infected in mainland China surpassed those infected with SARS during the 2002-2003 epidemic,” our colleagues Simon Denyer, Siobhán O'Grady, Hannah Knowles and Reis Thebault report.
OM-JE: Soon enough, you'll be able to say bison (though probably just your dad will), give your seal of approval to any group chat or have those pinched fingers at the ready when you drop the perfect pun. That's all because the organization that is the gatekeeper of emojis (yes, it's a thing ---anybody can propose an emoji) released its 117 new additions for 2020.
- Other new emojis include: the transgender flag, ninjas and a gender neutral Santa, per the BBC.