with Tobi Raji

Good Tuesday morning. Trump's second impeachment trial starts today. Watch our Washington Post Special Report with Libby Casey for gavel to gavel coverage starting at 12 p.m. here. This is the Power Up newsletter. Thanks for waking up with us. 

The investigations

IMPEACHMENT II: Former president Donald Trump won't be testifying in his second Senate impeachment trial starting today. But that doesn't mean Trump won't be tuning in to the proceedings as House impeachment managers argue he is “singularly responsible” for inciting the Jan. 6 insurrection at the Capitol.

Unlike his successor, the cable news hound who is camped out his Mar-a-Lago resort in Palm Beach is expected to turn on the television “at some point,” Trump spokesperson Jason Miller told Power Up. But that doesn't mean Team Trump is all that worried about how the trial will play out — at least not publicly. 

  • “I mean, they already had that vote two weeks ago where 45 Republican senators said it was unconstitutional right off the bat and nothing has been presented or proven to change any minds since then,” Miller told us. “Democrats are nowhere near getting enough votes — [Trump] will be acquitted next week. This is a simple charade to inflict political damage to Trump.”
  • Miller proceeded to call the potential for a vote to permanently disqualify Trump from holding future office “dead on arrival.”

The magic number 34: Trump, however, has been in “regular contact” with a number of Senate offices and a “handful of senators he's personal friends with leading up to the trial, though Miller said he would not describe it “as a full on whip effort.” Trump's also been talking to his impeachment lawyers — Bruce Castor and David Schoen — on a daily basis as they prepare his defense. 

In a brief filed Monday, the pair asked the Senate to dismiss the case, calling it unconstitutional “political theater” in an assessment many constitutional scholars disagree with. 

  • In the brief, “they relied heavily on the challenge to the constitutionality of impeaching a former president, as well as a First Amendment defense of Trump’s rhetoric leading up to the riot — which sought to disrupt the Congressional certification of Biden’s election win,” our colleague Mike DeBonis reports. 
  • Reminder: Trump needs the support of at least 34 Republicans to win an acquittal.

Miller, who has become Trump's de facto mouthpiece since leaving office and being banned from Twitter and Facebook, dismissed conservative lawyer Chuck Cooper's Wall Street Journal op-ed arguing an ex-president can indeed be tried for high crimes and misdemeanors. 

  • “The fact that John Bolton and Jeff Sessions's lawyer is popping off at President Trump shouldn't come as any surprise. But what many should be surprised about is that Cooper wanted to be solicitor general for Trump,” Miller told Power Up. “That didn't happen and I think it's pretty obvious where this is motivated from and I don't think this is representative of any broader thought pattern among conservatives.”

Cooper's argument isn't likely to increase the chances of conviction, but it does undercut the central argument embraced by GOP lawmakers. All but five Republican senators supported an objection raised by Sen. Rand Paul (R-Ky.) in a key test vote last month questioning the constitutional basis for the impeachment and removal of a former president. 

  • “Republican senators were gravitating toward this argument [made by Paul] because it allows them to avoid having to condemn or condone what Trump did,” Steve Vladeck, a constitutional law professor at the University of Texas School of Law, told our colleagues Ann Marimow and Tom Hamburger. “It’s a technicality that doesn’t actually have to be correct.”
  • “I thought [Cooper] made some excellent points, and obviously I'd want to hear the arguments … I wouldn’t presume to speak for others but I did think his argument was very good,” Sen. Susan Collins (R-Maine) said.
  • Our colleagues Ashlyn Still and JM Rieger are keeping tabs on where Democrats and Republicans stand.

In a rebuttal filed later in the day, House impeachment managers “called the lawyers’ attempt to dismiss their charge ‘wholly without merit,’ and argued that the Constitution gave them clear jurisdiction to proceed,” the New York Times's Nick Fandos reports. 

Trump might be facing criminal charges, too: Impeachment managers cite the ex-president's call to Georgia Secretary of State Brad Raffensperger's (R) to “find” enough votes to overturn the election as one of several examples of the president's “frontal assault on the First Amendment.” 

Raffensperger's office opened an investigation on Monday into Trump's “attempts to overturn the state’s election results,” the Times's Richard Fausset and Danny Hakim report. 

  • “The Secretary of State’s office investigates complaints it receives,” Walter B. Jones, a spokesman for the office, said in a statement. “The investigations are fact-finding and administrative in nature. Any further legal efforts will be left to the Attorney General.”
  • David Worley, the sole Democrat on the state elections board, said Monday that administrative inquiries by the secretary of state’s office could result in criminal charges,” per Fausset and Hakim.

Three men facing criminal charges for their role in the Jan. 6 riot on the Capitol have also implicated Trump  as “somewhat of a de facto unindicted co-conspirator in this case,” wrote an attorney for one of the men. 

  • Matthew Ryan Miller, a 21-year-old construction worker from Maryland accused of wielding a fire extinguisher against police on the Capitol steps, wrote through a lawyer Monday that he ‘was merely following the directions of then-President Trump, the country’s chief law enforcement officer,'” our colleague Rachel Weiner reports. 

On the Hill

The trial could conclude within a week: Senate Majority Leader Charles E. Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.) announced an agreement governing the trial's timing and structure.

  • The agreement will give members of both parties equal time to ask questions and deliver closing arguments,” our colleagues Mike DeBonis and Felicia Sonmez report.
  • Tuesday: “The trial will begin with a debate over the constitutionality of trying a former president … The four-hour debate over the constitutionality of the trial will be followed by a simple-majority vote on whether the Chamber has jurisdiction to try the former president.” 
  • Wednesday: Opening arguments will begin “with up to 16 hours of debate each for the House managers and the Trump defense team. There will also be a total of four hours for senators to question the two parties.”
  • At that point, the Senate could vote on calling witnesses or presenting additional evidence, if the managers or defense team wish to proceed. Finally, there will be four hours equally divided between the House impeachment managers and Trump’s legal team for closing arguments.” 
  • “If the managers decide they want witnesses, there’ll be a vote on that. That’s what they requested,” Schumer said. “They weren’t sure they wanted witnesses. They wanted to preserve the option.”
  • “Each side will then be allowed to offer motions to submit additional evidence, if they had provided the other side access to the materials at least 48 hours in advance. Those evidentiary motions are debatable for up to an hour per side,” Roll Call's Lindsey McPherson reports. 
  • “The trial could conclude as early as Monday if neither side offers any motions to subpoena witnesses or documents or submit evidence, but they use all the other time allotted under the procedures. If they don’t use all the time for arguments, it’s even possible the trial could be done by the end of this week,” per McPherson.

Arm's length: Biden, meanwhile, will be too busy this week to tune into the proceedings, according to White House press secretary Jen Psaki. Biden and White House officials have declined to comment on whether he believes Trump should be held accountable for his role in inciting the riots. “Let the Senate work that out,” Biden replied when asked for his position.

  • He’ll be focused on pushing his pandemic relief package, visiting the National Institutes of Health, touching base at the Pentagon and tackling his other duties at a time of crisis, the White House says,” per our colleagues Anne Gearan and Matt Viser. 
  • “I don’t expect that he’s going to be, you know, posturing or commenting on this through the course of the week,” Psaki told reporters.
  • “ … the White House says Biden will probably not get regular updates from [Schumer] or his own White House staff on how the trial is moving forward. Nor will he talk to senators about such issues as whether to allow witnesses, even though such decisions could affect the trial’s duration and whether it eclipses his agenda.” 

At the White House

DEMOCRATS REJECT LOWERING INCOME THRESHOLD FOR $1,400 CHECKS: “Senior House Democrats on Monday night proposed sending $1,400 stimulus payments to Americans with up to $75,000 in annual income, rejecting an earlier plan under consideration to sharply curtail the benefits,” our colleagues Jeff Stein and Erica Werner report

  • “Under the new plan, singles earning $100,000 a year and couples earning $200,000 would receive no stimulus payments.”
  • “The broadening of stimulus payment eligibility among middle-class households is the latest sign that Democrats are moving ahead without Republican support on President Biden’s $1.9 trillion economic relief package.”

But “there is a wide ideological gulf between the [Democratic] party’s moderate and liberal wings, which is likely to produce numerous policy fights,” including one about the income threshold. 

  • Sen. Joe Manchin III, a conservative Democrat from West Virginia, “[has] called for narrowing the payments to prevent them from going to higher-income Americans, arguing that those who have not lost their jobs do not need help.”
  • Senate Finance Chairman Ron Wyden (D-Ore.) and Senate Budget Chairman Bernie Sanders (I-Vt.) have slammed this proposal saying, “middle-class families have suffered pay cuts and other economic shocks and need relief, too.”

Former chief of staff confirmed as Veterans Affairs chief: “The Senate on Monday confirmed Denis McDonough as Biden’s Veterans Affairs secretary, choosing a non-veteran but a manager with years of government service to lead the sprawling health and benefits agency,” our colleague Lisa Rein reports

  • A Minnesota native, McDonough, 51, “was chief of staff during Barack Obama’s second term and held senior roles on the National Security Council and on Capitol Hill before that.”
  • McDonough was also “Obama’s deputy national security adviser during the Navy SEAL raid in 2011 that killed al-Qaeda leader Osama bin Laden.”
  • He was confirmed on an 87-to-7 vote.
  • The Senate has 26 Biden nominees left to confirm, NPR reports

Outside the Beltway

BIDEN, HARRIS TOUR 24/7 NFL VACCINATION SITE: “After returning to Washington from Delaware on Monday, Biden joined Vice President Harris in a virtual tour of a professional football stadium in Arizona that has been turned into a mass vaccination site,” our colleagues John Wagner and Felicia Sonmez report

  • During the virtual tour, Arizona Department of Health Services Director Cara M. Christ said the center vaccinates roughly 8,000 to 9,000 Arizonans daily and has completed nearly 170,000 vaccinations since it opened Jan. 11.

The Biden administration and NFL Commissioner Roger Goodell have teamed up to create more mass vaccination sites. “In a letter to Biden last week, Roger Goodell, the NFL commissioner, pledged that all 32 teams in the league will offer their facilities for similar purposes.”

  • “State Farm Stadium in Glendale, Ariz., home of the Arizona Cardinals, is one of seven National Football League stadiums in use as a vaccination site.”

The deal comes as “the United States recorded fewer than 100,000 new infections [Sunday], the first time in months that the closely watched daily tally fell below that threshold,” our Post colleagues report.

  • Although “the number of new cases has been declining steadily for about four weeks, even the lowest recent levels far exceed the virus spikes of the spring and summer.”

Secretary Pete to quarantine: “A member of Transportation Secretary Pete Buttigieg’s security detail tested positive for the coronavirus Monday, sending Buttigieg into a 14-day quarantine less than a week after being sworn in,” our colleague Michael Laris reports.

  • Buttigieg tested negative Monday and has had no symptoms, according to chief of staff Laura Schiller.

Texas congressman dies of covid-19. Rep. Ron Wright (R-Tex.), “who had received cancer treatment for years, died Sunday after being hospitalized with covid-19,” our colleagues Paulina Firozi and David Weigel report. He was 67.

  • He is the first sitting member of Congress to die after battling the virus.

In the agencies

DOJ TO ASK TRUMP-APPOINTED ATTORNEYS TO RESIGN: “The Justice Department, as soon as Tuesday, is expected to ask U.S. attorneys appointed by Trump to submit their resignations,” CNN's Evan Perez and Christina Carrega report. The move is expected to affect 56 Senate-confirmed attorneys. 

Who could stay?

  • David Weiss. “[Weiss] is overseeing the tax probe of Hunter Biden, Biden's son.”
  • John Durham. “Durham [was] appointed as special counsel by former Attorney General William P. Barr to reinvestigate the origins of the Trump-Russia probe.”
  • Michael Sherwin. “[Sherwin is the] acting U.S. attorney in Washington, who is overseeing the sprawling probe of the Jan. 6 attack on the U.S. Capitol.”

Meanwhile, New York's highest court agreed with a lower court that former Trump campaign manager Paul Manafort can't be prosecuted for alleged mortgage fraud and other state felonies because they're too similar to federal charges for which he was pardoned.

Global power

U.S. REJOINS HUMAN RIGHTS COUNCIL: “President Biden instructed the State Department on Monday to reengage with the United Nations Human Rights Council, reversing a decision by the Trump administration to withdraw from it nearly three years ago because of frustrations that the council repeatedly criticized Israel,” our colleague John Hudson reports

  • Secretary of State Antony Blinken on Trump’s withdrawal from the U.N. body in 2018: “[It] did nothing to encourage meaningful change, but instead created a vacuum of U.S. leadership, which countries with authoritarian agendas have used to their advantage.”
  • The move is expected to receive backlash from Republican lawmakers and pro-Israel activists who “have long complained that the council disproportionately criticizes the Jewish state’s occupation of Palestinian territories in comparison with human rights issues in other countries.”