with Mariana Alfaro
Donald Trump seems to live in a legal and political twilight, and not just because he’s banned from Twitter.
His office refers to him as “45th President Donald Trump,” preserving the honorific that other past chief executives also routinely use.
But the centerpiece of his Senate trial defense is that he is a private citizen constitutionally beyond the reach of the impeachment process, an argument rejected by most legal scholars.
Yet Trump is a private citizen despite winning the November 2020 election in “landslide,” according to one filing by his lawyers, apparently eager to preserve the fiction that he beat President Biden but was cheated out of a second term.
The linguistic contortions that result from these multiple identities can make for jarring reading.
In a formal Feb. 2 answer to the sole article of impeachment, incitement of insurrection, his lawyers refer to “President Biden.” But they defend this false claim, in the Jan. 6 speech that preceded his supporters ransacking the Capitol: “We won this election, and we won it by a landslide.”
“To the extent Averment 5 alleges his opinion is factually in error,” the lawyers said in their filing, “the 45th President denies this allegation.”
A Feb. 8 trial memorandum from the Trump team only refers to Biden as “former Vice President Joe Biden.” (This is probably less a denial of the electoral outcome the former president has never accepted and more a function of his “private citizen” defense.)
But whether “president” or “private,” Trump is one more thing, and it’s very much on the minds of his prosecutors and Republican defenders: A potential candidate in 2024.
Democrats have pushed the Senate to convict Trump and, in a second vote, impose the constitutional punishment: “Disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” While never tested in the courts — the Senate has acquitted all three impeached presidents to date — this would forbid another run for the White House.
The impeachment process “authorizes this body and this body alone to disqualify from our political system anybody whose conduct in office proves that they present a danger to the republic,” said Rep. David Cicilline (D.-R.I.), one of the House managers prosecuting Trump in the Senate.
“The idea of 100 people in these circumstances deciding that tens of millions of American voters cannot cast their vote for their candidate for president ever again is unthinkable,” countered Trump defense lawyer David Schoen.
Another Trump lawyer, Bruce L. Castor, Jr. asked “is the fear that the people in 2024 in fact will want to change and will want to go back to Donald Trump, and not the current occupant of the White House, President Biden?”
To which Democrats could say, as Cicilline did, that their concern is Trump “literally incited and armed attack on the Capitol, our seat of government while seeking to retain power by subverting an election he lost and then celebrated the attack.”
Even Twitter-mute, Trump has kept a lock on the GOP.
Just six Republicans sided with Democrats yesterday as the Senate voted 56-44 that the trial can proceed. A majority of the House GOP voted in the hours after the deadly Jan. 6 Capitol riot to overturn the results of the election. Only 10 voted to impeach Trump.
Sure, Rep. Liz Cheney (R-Wyo.) survived an effort to strip her of the No. 3 slot in House GOP leadership because of her support for Trump’s impeachment. But that 145-61 vote was by secret ballot, sparing individual lawmakers from retribution. And only 11 Republicans joined Democrats in the 230-199 vote to strip Rep. Marjorie Taylor Greene (R-Ga.) of her committee assignments. She has tied herself as closely to Trump as possible and yesterday argued the Jan. 6 rioters weren’t Trump supporters.
Just 3 in 10 GOP Republicans, according to a recent poll, thinks Trump bears at least a moderate amount of blame for the riot. And only 1 in 10 say he should be convicted. And 65 percent say Biden was not legitimately elected, despite the absence of any evidence of widespread voter fraud.
It’s why most observers share the conviction that Trump will be acquitted.
What’s happening now
Georgia prosecutors opened a criminal investigation into “attempts to influence” the administration of the 2020 election. The letter from Fulton County's district attorney seeking to preserve records comes in the wake of Trump's calls to state officials, including pressuring Georgia Secretary of State Brad Raffensperger to “find” enough votes to reverse Biden’s victory in the state, Amy Gardner reports.
The National Republican Congressional Committee released a list of the 47 House Democrats whose seats it is targeting. The list includes Reps. Abigail Spanberger (Va.) and Conor Lamb (Pa.), who have sparred with the party’s more liberal wing recently. (NYT)
Republican Josh Mandel, who has previously run twice for an Ohio U.S. Senate seat, announced a third bid this morning, citing Trump’s impeachment trial as his motivation. He is the first candidate to officially declare he will seek the seat being vacated by retiring Sen. Rob Portman (R-Ohio). (John Wagner)
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More on impeachment
House impeachment managers will use new Capitol security footage in their case against Trump.
The proceedings resume at noon; you can watch our team’s live coverage here.
- “The video will show ‘extreme violence’ and make clear what additional safety risks were posed by the insurrection, an aide said, including ‘just how close Trump’s mob came to senators, members of Congress and staff,’” John Wagner reports.
- “It will show the extent of what Donald Trump unleashed on our Capitol,” said the aide.
- Yesterday, 44 Republicans voted against moving forward with the trial, saying it's unconstitutional to try a former president. That makes it less likely 17 GOP senators will join the Democrats to convict Trump. Trump’s lawyers are expected to continue arguing that the impeachment claims are irrelevant now that Trump is a private citizen, per the Times.
Mitch McConnell suggested he hasn’t decided whether to convict Trump.
- The Senate minority leader is also signaling to fellow Republicans that the final vote on Trump’s impeachment is a matter of conscience and that senators who disputed the trial’s constitutionality could still vote to convict Trump, Bloomberg’s Jennifer Jacobs reports. McConnell voted yesterday that the trial was unconstitutional.
The backlash against Trump’s legal team continues — including from Republicans.
- Castor defended his performance, the WSJ reports: "You put 100 people in the same room, you're going to get 100 different opinions."
- Sen. John Cornyn (R-Tex.) was one of several critical Republicans, saying Castor “just rambled on and on and on and didn’t really address the constitutional argument.” Sen. Lindsey O. Graham (R-S.C.) slammed Castor’s opening statement and said he “thought I knew where it was going, and I really didn’t know where it was going.”
- Trump, who is hiding out in Mar-a-Lago, was infuriated with his legal team: “On a scale of one to 10, with 10 being the angriest, Mr. Trump ‘was an eight,’ one person familiar with his reaction said,” the Times’s Maggie Haberman reports.
Biden, meanwhile, said he was not going to watch the trial.
- “I have a job,” he said. “The Senate has their job; they’re about to begin it. I’m sure they’re going to conduct themselves well.”
As the Senate debated Trump’s guilt, his Palm Beach neighbors argued whether to evict him from Mar-a-Lago.
- At issue is a 1993 deal that Trump stuck with the town when he sought to turn what had been a single-family home into a private club, promising that members would only be permitted to stay there for seven days at a time, preventing anyone from making it a permanent residence, Antonia Farzan reports. It seems, however, that the Palm Beach fight is tiling in Trump’s favor, with his attorney there arguing that Trump is practically an employee of the club, which makes him exempt from the rule.
A majority of the people arrested for the Capitol riot have a history of financial trouble.
- “Nearly 60 percent of the people facing charges related to the Capitol riot showed signs of prior money troubles, including bankruptcies, notices of eviction or foreclosure, bad debts, or unpaid taxes over the past two decades,” Todd C. Frankel reports. “The group’s bankruptcy rate — 18 percent — was nearly twice as high as that of the American public, The Post found. A quarter of them had been sued for money owed to a creditor. And 1 in 5 of them faced losing their home at one point, according to court filings.”
Quote of the day
“Anyone that listened to those arguments would recognize that the House managers are focused, organized, they relied both upon precedent, the Constitution and legal scholars. They made a compelling argument,” said Sen. Bill Cassidy (R-La.), who joined Democrats and five other Republicans to allow the trial to proceed. In contrast, Cassidy said, Trump’s team was “disorganized.”
Lunchtime reads from The Post
- “Southern Baptist leaders called Kamala Harris a ‘Jezebel.’ That’s not just insulting, it’s dangerous, experts say,” by The Lily’s Anne Branigin: “Calling Harris a Jezebel accomplishes multiple things: It delegitimizes her power and dehumanizes her. Jessica Johnson, an assistant professor of religious studies at the College of William & Mary, said the term has historically been used as a justification for racial violence against Black women.”
- “A French nun survived the 1918 flu pandemic and both world wars. Now she’s beaten coronavirus days before she turns 117,” by Jaclyn Peiser: “On Tuesday, Sister André was declared recovered from the virus … allowing her to hold on to her title as the oldest living European and second-oldest person in the world.”
… and beyond
- “Isn’t 400 years enough?” by Jonathan Holloway, president of Rutgers University, in the Times: “The willful failure to appreciate that many people — the dispossessed, the poor, the enslaved, even the immigrants from ‘less desirable’ countries — have contributed to an exceptional national experiment leads people like the Proud Boys and a few too many members of Congress away from being the true patriots that they claim to be.”
- “Tasteful Nudes: Hospitality pros pose to raise funds for their industry,” by the Washington City Paper’s Laura Hayes: “It turns out the man behind one of D.C.’s most caloric burgers has rock hard abs. How is that fair, Daniel Kramer? The managing partner of Duke’s Grocery is one of six local hospitality professionals that got nearly naked for a photo shoot with photographer Kevin York to raise money for the workers in the pandemic-ravaged restaurant and bar industry.”
At the table
Today we're lunching with Rep. Ro Khanna (D-Calif.). The conversation has been edited for length and clarity.
Knox: Before President Biden took office, there was a fair amount of talk about progressives promising to hold his feet to the fire. On what issues has that been necessary so far?
Khanna: On the 15-dollar minimum wage. There was a fair amount of concern a few days ago that that would be stripped from not only the Senate bill but the House bill. We mobilized the progressive caucus under [Rep.] Pramila Jayapal’s [D-Wash.] leadership. The progressives said if it were stripped from the bill then we would add an amendment, and have the votes to pass that amendment. That procedural move, as well as our passionate advocacy for a $15 minimum wage — along with the advocacy of SEIU and so many labor groups — has ensured that the $15 minimum wage is going to be part of the House bill. Now it gives us a fighting chance, depending on how the Senate parliamentarian rules [on whether it can be adopted using the legislative tactic known as reconciliation].
The second place is on the threshold of who gets the checks. We had great advocacy from Bernie Sanders [I-Vt.], from Rep. [Alexandria] Ocasio-Cortez [D-N.Y.] and others on making sure that at least everyone who got the check under [Donald] Trump gets the check now. That was a complete win….That will undoubtedly be in the Senate bill as well, and in the final bill.
Knox: Is the minimum wage increase a must-keep item to retain progressive support?
Khanna: It’s certainly a must-keep in the House bill. And I have every reason to expect it will be in the House bill. [Rep.] Bobby Scott [D.-Va.] has said it’s going to be in the [House] Education and Labor [Committee] mark-up, and the speaker typically defers to what the committees pass. So I have no reason to believe that it would be stripped from the House bill. ... Here is the critical point: Vice President Kamala Harris has the prerogative, as chair, to overrule the Senate parliamentarian. The Senate parliamentarian’s ruling is not binding, it is advisory. So my sense is that progressives will then say that [Harris], should overrule the Senate parliamentarian if the Senate parliamentarian rules the minimum wage [has a] budget impact. Given the [Congressional Budget Office] report, it’s hard to argue that it doesn’t have a budget impact. So we should make it clear that it can pass with reconciliation.
Knox: I talked to Sen. Sanders last week, and he suggested the next economic rescue package would aim to transform the economy. What do you hope to see in that second wave?
Khanna: It should have a massive focus on infrastructure. But not just roads and bridges, which are important, but in building the modern infrastructure of the 21st century. That should include Rep. [James] Clyburn’s [D-S.C.] bill, universal access to affordable high-speed Internet. That’s something that Americans no longer view as a niche issue after a year with the pandemic, where kids have been having to do remote school, where people have had to rely on remote work, and remote interactions with family members, the digital divide has become apparent. The crisis should signal the need for affordable high-speed Internet for every American.
Sen. [Charles E.] Schumer [D-N.Y.] and I then have a bill, which is a high priority for us both, that would provide $100 billion to the National Science Foundation to ensure that we are leading in the cutting-edge technologies of the future — artificial intelligence, synthetic biology, green energy — and that we’re creating 10-15 tech hubs in rural communities, and mid-sized cities, in Black and Brown communities.
Knox: You and I have talked before about the pressure coming down on Big Tech. It seems to have intensified since the Jan. 6 Capitol riot. Some senators have proposed modifying — watering down — Section 230 protections for content moderation decisions. What do you make of that proposal?
Khanna: There needs to be reform, but it has to be thoughtful reform. The most promising [approach] says that if you get a court order of speech that is illegal, social media sites need to take it down.
There are some challenges with it, which can be worked out in the legislative process. But at the very least, we should agree that if a court rules speech illegal ... that incites imminent violence, social media platforms should be required to take it down.
People are surprised when they learn that that’s not the law, that you could actually get a court order that says speech is illegal, threatening someone’s assassination, and a social media company actually has the discretion to ignore it. They’re required to take down copyright violations, but not speech that incites violence. Having a court-adjudicated process for speech that’s unlawful under our own First Amendment tradition and requiring social media companies to comply with that would go a long way.
But it’s important to realize that that is not the holy grail. The challenge of social media is that it’s a business model based on capturing your data and then optimizing for our engagement and our attention. When you have that business model, you’re going to find custom audiences for fringe views. You’re going to push sensational content. So what we really need to do is rethink the rules of the market on the use of data and having a broader-based Internet bill of rights that will incentivize social-media companies to explore alternative business models. Until we do that, the fundamental challenges of sensationalization and polarization, I fear, will remain.
Knox: We’re obviously in Trump’s second impeachment trial. There have been calls for a body like the 9/11 commission to look at the events of Jan. 6. How do you see the tensions between accountability versus moving forward?
Khanna: Accountability is necessary to move forward. But it should be accountability not with a persecuting spirit, or a sense of vengeance, or a sense of being punitive. It should be accountability to make sure that the violations of our democracy never happened again. We have to do an investigation of what all went wrong.
We have to understand why we got to this point. When I decided to run for office I had a conversation with my grandmother in India, and she was fearful and she said “No, no, don’t do it!” And I said “why?” And her experience in Indian politics was that politics was violent. And that is the experience in so many other countries. And my mother told my grandmother “No, in America that’s not the case. In America, people argue but there is not the same violence on a day-to-day case.”
What is happening now to our democracy, where we are seeing the escalation of violence, of violent threats to solve political disputes, is certainly the most dangerous in my lifetime. We need a commission to think through what has gotten our democracy to this state and how we work ourselves out of that.
The first 100 days
- House Democrats began holding what will be a lengthy series of committee hearings this week over key portions of the $1.9 trillion relief package. They still plan on voting on various portions of the package soon, leading up to the final House passage later this month, per Jeff Stein and Erica Werner.
- Top members of Biden's coronavirus response team fear that the U.S. may not reach herd immunity until Thanksgiving or even the start of next winter, months later than originally calculated. (Daily Beast)
- The CDC is weighing whether to require domestic travelers to show proof of a negative coronavirus test before boarding their flights, prompting fierce backlash from airlines, labor unions and lawmakers, Lori Aratani, Michael Laris and Ian Duncan report.
- Biden plans to continue to seek Julian Assange’s extradition, Reuters reports.
Hot on the left
Less than a week after her past support for conspiracy theories prompted House Democrats to strip her of her committee assignments, Rep. Marjorie Taylor Greene (R-Ga.) falsely implied that the Capitol rioters weren’t Trump supporters. In a few tweets, Greene claimed that the rioters couldn’t be pro-Trump because they foiled Republicans’ efforts to object to electoral college votes for Biden. House Minority Leader Kevin McCarthy (R-Calif.) — who had a private conversation with Greene over the issues raised against her — declined to comment on her latest false statements, Reis Thebault reports.
Hot on the right
Americans’ opinions on the GOP have worsened in recent months, a Gallup poll found, with 37 percent saying they have a favorable view of the party, down from 43 percent in November. The Democratic Party’s ratings have slightly increased to 48 percent, up from 45 percent in November, giving them a rare double-digit advantage in favorability.
Average vaccine doses by day, visualized
This week in Washington
Christopher Krebs, the former director of the Department of Homeland Security’s cybersecurity agency who was fired by Trump, will be testify during a House hearing today about cyberthreats facing the U.S.
Biden and Harris will visit the Pentagon today at 2 p.m., where they’ll meet with Secretary of Defense Lloyd Austin. The three will later deliver remarks to DOD personnel and tour the African Americans in Service Corridor.
Neera Tanden, Biden’s pick to lead the Office of Management and Budget, will face the Senate Budget Committee today.
Seth Meyers reviewed the first day of Trump's second impeachment trial: