The Morning Dispatch: Team Trump Struggles Early

Plus: Lawsuits loom for Fox News and other media companies that amplified voter fraud conspiracy theories.

(Photo by congress.gov via Getty Images.)

Happy Wednesday! A quick tip before we begin: Don’t let your kids use your Zoom account before you argue your big civil asset forfeiture case.

Quick Hits: Today’s Top Stories

  • The Senate voted 56-44 to proceed with President Trump’s second impeachment trial, rejecting the argument that trying a former president is unconstitutional. Just six Republicans broke with Trump’s legal team: Sens. Mitt Romney, Lisa Murkowski, Pat Toomey, Ben Sasse, Susan Collins, and Bill Cassidy.
  • The House impeachment managers played a video at the outset of the trial compiling footage from January 6 that they argue constitutes evidence of President Trump’s role inciting the violence.
  • President Biden’s Department of Justice is asking nearly all U.S. attorneys appointed by President Trump to submit their resignations, effective February 28. The order excludes John Durham, who will remain special counsel in the Russia inquiry, and David Weiss, who is investigating Hunter Biden’s taxes.
  • Jimmy Lai—a prominent pro-democracy media figure in Hong Kong—was denied bail by a Hong Kong court Tuesday. Lai was charged back in August under Beijing’s sweeping national security law and could face life imprisonment if convicted. The judges said Lai could make a “fresh application” for bail at a later date.
  • Many demonstrators were injured by rubber bullets and water cannons in Myanmar Tuesday, as the military cracked down on protests in cities from Nay Pyi Taw to Mandalay.
  • The United States confirmed 101,144 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 6.4 percent of the 1,585,569 tests reported coming back positive. An additional 3,258 deaths were attributed to the virus on Tuesday, bringing the pandemic’s American death toll to 468,103. According to the COVID Tracking Project, 79,179 Americans are currently hospitalized with COVID-19. According to the Centers for Disease Control, 788,573 COVID-19 vaccine doses were administered yesterday, bringing the nationwide total to 43,206,190.

Impeachment Trial: One Day Down

If Senate Republicans truly were the “impartial jurors” many of them have been claiming to be, President Trump’s chances of acquittal would be in serious jeopardy following a rocky start to his second impeachment trial on Tuesday. Even some of Trump’s strongest allies conceded that the former president’s legal team was outdueled yesterday by the House’s impeachment managers.

Still, the GOP voted overwhelmingly to dismiss the trial as unconstitutional, with only six senators—Ben Sasse, Lisa Murkowski, Mitt Romney, Susan Collins, Pat Toomey, and Bill Cassidy—breaking ranks. The effort failed because every Democrat voted against it, but it served as another reminder that the path to conviction is all but insurmountable.

Democrats know this too, but they demonstrated yesterday they will endeavor to make it as difficult as possible for Republicans to take that vote by vividly reminding voters of the details of the charges against the former president.

Early in the afternoon, the impeachment managers played a horrific 14-minute video compiling footage from the January 6 attack on the Capitol. Sitting in the very chamber from which they were evacuated a month ago, senators rewatched President Trump tell his supporters to “walk down to the Capitol,” adding that if “they don’t fight like hell, [they’re] not going to have a country anymore.” The video captured members of the mob assaulting police officers, breaking down the doors of the Capitol, and searching for lawmakers once inside, chanting “fight for Trump!” all the while. “If that’s not an impeachable offense,” said Rep. Jamie Raskin, the Democrats’ lead prosecutor, “then there’s no such thing.”

Sen. Roy Blunt, a Missouri Republican, told reporters the video “may be the longest time I’ve sat down and just watched straight footage of what was truly a horrendous day.”

The emotional footage was certainly a highlight of the Democrats’ case, but they made a legal argument as well. Raskin—a constitutional law professor—cited the Federalist Papers and the writings of other constitutional scholars to argue that, if accepted, the argument coming from Trump’s legal team would render impeachment entirely useless.

“President Trump may not know a lot about the framers, but they certainly knew a lot about him,” he said. “Given the framers’ intense focus on danger to elections and the peaceful transfer of power, it is inconceivable that they designed impeachment to be a dead letter in the President’s final days in office, when opportunities to interfere with the peaceful transfer of power would be most tempting and most dangerous—as we just saw.”

“Presidents can’t inflame insurrection in their final weeks and then walk away like nothing happened,” Rep. Joe Neguse of Colorado added.

Bruce Castor, President Trump’s defense lawyer, conceded that the Democrats’ case was “well done,” adding that it caused him to reshuffle his presentation at the last minute. “I’ll be quite frank with you,” he said. “I thought that what the first part of the case was, which was the equivalent of a motion to dismiss, was going to be about jurisdiction alone. … We have counterarguments to everything that they raised, and you will hear them later on in the case from Mr. [Michael] van der Veen and from myself.”

It was evident at many points in Castor’s 30-minute rebuttal that he was shooting from the hip, and throwing a variety of arguments up against the wall: Trump was just utilizing his First Amendment rights, impeachment is only supposed to be “the ultimate safety valve,” convicting Trump would lead to a “slippery slope,” Democrats are just trying to avoid having to run against the former president again in the future, and former presidents can still be held legally liable once out of office, even if they can’t be convicted in an impeachment trial.

Republicans were not particularly impressed. “I thought I knew where it was going, and I really didn’t know where it was going,” Sen. Lindsey Graham said.

Fox News’s Legal Fight

Fox Corporation filed a motion on Monday to dismiss the $2.7 billion defamation lawsuit brought against the network by voting technology company Smartmatic last week. In addition to Sidney Powell and Rudy Giuliani, three Fox anchors—Lou Dobbs, Maria Bartiromo, and Jeanine Pirro—were specifically named in the lawsuit due to their repeated claims that Smartmatic played a role in stealing November’s presidential election from Donald Trump. Dobbs’ show was abruptly canceled on Friday, one day after the suit was filed.

In its 285-page complaint, Smartmatic—whose technology was only used in Los Angeles County in the most recent election—argued that the defendants intentionally smeared the voting systems company as part of a larger misinformation campaign. “The Earth is round,” the complaint reads. “Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable.”

“Defendants have always known these facts,” the suit claims. “But they also saw an opportunity to capitalize on President Trump’s popularity by inventing a story.”

The meat of Smartmatic’s legal argument hinges on the “irreparable” reputational blow the voting technology company says it has sustained following the months-long blitz from right-wing media. “Smartmatic and its officers began to receive hate mail and death threats. Smartmatic’s clients and potential clients began to panic,” the lawsuit reads. “Overnight, Smartmatic went from an under-the-radar election technology and software company with a track record of success to the villain in Defendants’ disinformation campaign.”

In its 44-page motion to dismiss—filed by former U.S. Solicitor General Paul Clement in the New York State Supreme Court—Fox argued that its coverage of Smartmatic was newsworthy and constitutionally protected on First Amendment grounds. “This lawsuit strikes at the heart of the news media’s First Amendment mission to inform on matters of public concern,” the motion reads. “An attempt by a sitting president to challenge the result of an election is objectively newsworthy.”

Worth Your Time

  • For years, the war in Afghanistan—now nearly two decades in length—has lost support among the American people, as successive presidents spent less and less time explaining the continued efforts of the U.S. military deployed there. As a result, there was little popular opposition to Trump’s withdrawal of all but 2,500 troops from the region. But now, according to Center for a New American Security fellow Vance Serchuk, we’re suffering the consequences of the politically expedient—but strategically misguided—move, as the Taliban continue to grant refuge to global terror groups and wreak havoc across the country. “The Taliban … has made no sign of splitting with al Qaeda. The U.S. Treasury Department warned last month that al Qaeda influence in Afghanistan is actually increasing under Taliban protection,” he writes for the Wall Street Journal. “Taliban officials now speak of hosting al Qaeda members as ‘refugees’—the same rationale they used to shelter the group before 9/11. Far from facilitating a wider peace in Afghanistan, the U.S. drawdown has coincided with a surge in violence shocking even by Taliban standards. Insurgents have launched a Khmer Rouge-style campaign of targeted murders against journalists, judges, human-rights activists and civil servants in Kabul. The strategy behind this killing spree is clear: to exterminate, as a class, the modern-minded Afghan professionals who oppose the Taliban’s extremist agenda.”
  • In his latest for National Review, Kevin Williamson assesses the “move on” argument often deployed by lawmakers when their party’s president comes under any form of scrutiny. Like Democrats during the Bill Clinton impeachment, Sen. Marco Rubio and other Republicans have begun arguing that the impeachment trial is a waste of time and resources—particularly amid a pandemic. “Washington is more than capable of doing two things at once, provided it has the desire to do those things and the right incentives,” Williamson writes. “If it really were the case that the federal government’s vaccination efforts would be meaningfully hindered by the Trump trial—and that is not actually true—then that would be an argument for replacing Marco Rubio and every other man and woman of longstanding authority in Washington, not an argument for dropping the Trump trial.”

Presented Without Comment

Also Presented Without Comment

Chris Megerian @ChrisMegerian

One year ago tomorrow, Trump suggested impeaching a former president

Aaron Rupar @atrupar

“We should impeach him for that. Why aren’t we impeaching him?” — Trump suggests Republican should impeach former President Obama for his comments about health care https://t.co/hioytOMlab

Also Also Presented Without Comment

Toeing the Company Line

  • In yesterday’s edition of The Sweep, Sarah makes the case that House Republicans are not in as dire straits as you may believe. “Republicans came within 31,751 votes of winning the 5 additional seats they would have needed to hand Kevin McCarthy the speaker’s gavel and take back the majority in the House,” she notes. “Despite the near-universal condemnation of how McCarthy has handled his caucus (including very much by yours truly, I will add), these are the numbers he is looking at, and he must think we’re all complete morons.”
  • David’s latest French Press, up this morning, argues that Republicans attempting to avoid the merits of the case in Trump’s trial by fretting over precedent are missing the point: There will be precedents set either way, some far worse than “a former president can be impeached” if the Senate lets him off scot-free. “For the sake of the republic, I hope it sets a precedent that presidents cannot launch mendacious campaigns to overturn lawful elections,” he writes. “I hope it sets a precedent that efforts to halt the peaceful transition of power are met with extreme sanction. And I hope it sets the precedent that threats of civil war only steel the resolve of patriotic senators to hold a demagogue accountable for the consequences of his recklessness and malice.”

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Audrey Fahlberg (@FahlOutBerg), Charlotte Lawson (@charlotteUVA), and Steve Hayes (@stephenfhayes).