The Morning Dispatch: Team Trump Struggles Early

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. 

“The president’s lawyer just rambled on and on,” Sen. John Cornyn told an NBC reporter. “I’ve seen a lot of lawyers and a lot of arguments and that was not one of the finest I’ve seen.”

Sen. Susan Collins was the most blunt: Castor “did not seem to make any arguments at all, which was an unusual approach to take.”

David Schoen, Trump’s second lawyer, was more systematic in his approach, using aggressive rhetoric to remind Republican senators where their voters stand. “This trial will tear this country apart, perhaps like we have only seen once before in our history,” he said in an apparent reference to the Civil War. “A great many Americans see this process for exactly what it is: A chance by a group of partisan politicians seeking to eliminate Donald Trump from the American political scene and seeking to disenfranchise 74 million-plus American voters and those who dare to share their political beliefs and vision of America.”

Trump himself was reportedly “furious” with his defense team’s efforts, but Castor himself called it a “good day”—even though one Republican who previously believed the trial to be unconstitutional changed his mind after their presentation. “If it leaks down to 34 then I’ll start to worry,” Castor added.

The Republican, Sen. Bill Cassidy of Louisiana, lit into Castor and Schoen at the end of the day. “The House managers were focused, they were organized, they relied upon both precedent, the Constitution, and legal scholars. They made a compelling argument,” he said. “President Trump’s team [was] disorganized. They did everything they could but to talk about the question at hand. And when they talked about it, they kind of glided over it, almost as if they were embarrassed of their arguments.”

Will it matter to the final verdict that the defense’s lawyers were outgunned? Almost assuredly not. Most Senate Republicans have already determined political expediency requires they vote to acquit Trump, and will be able to backfill a rationale regardless of the arguments presented. Still, nothing is final until it’s final. 

Of the six Republicans who voted to proceed with the trial, some may still ultimately vote against conviction. In a statement issued later yesterday, Cassidy—who was just reelected to a six-year term—said his determination was “not a prejudgment on the final vote to convict.”

It’s also possible, though again unlikely, that a couple of Republican senators who said the trial is unconstitutional could cast a surprise vote later. “Three people familiar with [Mitch McConnell’s] thinking” told Bloomberg last night that the minority leader still hasn’t made up his mind on how he’ll vote, but is telling his colleagues that “senators who disputed the constitutionality of the trial could still vote to convict the former president.”

But for now, yesterday’s 56-44 vote gives us a good sense of where this could end up. “Not a single thing will change,” Sen. Tim Scott told Axios yesterday. “The outcome is set.”

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.”

Fox’s strategy is to argue that the network cannot be held legally responsible for any false statements that Giuliani and Powell made on air, given the two were Trump’s legal representatives rather than employees of the network at the time they made television appearances. As for the actual employees of the network named in the suit, the motion—providing a handful of examples in an appendix—asserts that they “repeatedly informed viewers that Smartmatic had denied its technology was involved in election manipulation and/or asked Giuliani, Powell, and others close to President Trump if they could substantiate their claims.” 

“If those surrogates fabricated evidence or told lies with actual malice, then a defamation action may lie against them,” it continued, “but not against the media that covered their allegations and allowed them to try to substantiate them.”

The network also claims that Smartmatic is a public figure, meaning the voting technology company must show that the defendants knew the statements they were making were false. “At most, Smartmatic alleges that Fox negligently failed to investigate its guests’ statements in advance,” the network’s motion said.

Smartmatic’s lawsuit follows two separate $1.3 billion defamation lawsuits filed by Dominion Voting Systems last month against Powell and Giuliani. Though Giuliani has yet to formally respond to Dominion’s lawsuit, Powell filed a motion on Monday requesting an extension until March 22 to respond. The voting company did not oppose her motion out of “professional courtesy,” but reminded the opposing counsel in its filing that “Powell evaded service of process for weeks, forcing Dominion to incur unnecessary expenses for extraordinary measures to effect service, including hiring private investigators and pursuing Powell across state lines.”

Dominion spokesperson Michael Steel told The Dispatch that the defendants’ attempts to smear the voting company have affected the livelihoods of its employees. “The misinformation campaign has resulted in Dominion employees and their families being threatened with physical violence,” he said. “And in some cases, death.”

For the most hardline right-wing media outlets, the threat of legal action from Smartmatic and Dominion has resulted in a precarious balancing act: Adhere closely enough to the facts to avoid a lawsuit, but raise enough questions to avoid alienating readers and viewers.

In mid-January, The American Thinker agreed to release a statement acknowledging it had published a variety of pieces that relied on “discredited sources” and “peddled debunked theories.”

“It was wrong for us to publish these false statements,” it continued. “We apologize to Dominion for all of the harm this caused them and their employees. We also apologize to our readers for abandoning 9 journalistic principles and misrepresenting Dominion’s track record and its limited role in tabulating votes for the November 2020 election. We regret this grave error.”

On TV networks, the juxtaposition is even clumsier. Late last week, MyPillow CEO Mike Lindell released a three-hour documentary that he claimed provides “absolute proof” the election was stolen from Trump (it doesn’t). He purchased airtime on One America News Network to run it—essentially as sponsored content. But before the broadcast, the network ran a nearly two-minute disclaimer, distancing itself from everything the “documentary” was about to allege. “OAN does not adopt or endorse any statements or opinions in this program regarding the following entities or people: US Dominion Inc. (and any related entities); Smartmatic USA Corp.; Brian Kemp; Brad Raffensperger; or Gabriel Sterling.”

A similarly awkward dynamic played out on Newsmax last week, when anchor Bob Sellers repeatedly interrupted an incoherent, conspiracy-laden spiel from Lindell in a transparent effort to cover against further legal action. “While there were some clear evidence of some cases of vote fraud and election irregularities, the election results in every state were certified,” Sellers said. “Newsmax accepts the results as legal and final. The courts have also supported that view.” (That segment led to a wild follow-up report on OAN, in which hosts accused Newsmax of “muzzling” Lindell and speculated that the competitor network was engaging in “leftist censorship.”)

Dominion has warned that—should Lindell continue to spread baseless conspiracies—he too may soon be on the receiving end of a very expensive lawsuit. “He is begging to be sued, and we may very well oblige him at some point in the future,” Steel told The Dispatch. Dominion has also sent preservation letters to a number of other institutions and figures, including One America News Network, the Epoch Times, Sean Hannity, Lou Dobbs, Maria Bartiromo, Rush Limbaugh, Sidney Powell, L. Lin Wood, Rudy Giuliani, and Newsmax—warning that defamation lawsuits are “imminent.”

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.”

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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.”

Let Us Know

For no particular reason whatsoever, what is the best Valentine’s Day gift you’ve ever received from a significant other?

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