The Morning Dispatch: Trump’s Trial Kicks Off

Happy Tuesday! We hate to be bearers of bad news, but Major League Baseball announced last night it’s keeping last season’s “7-inning doubleheader” and “free baserunner in extra innings” rules for the 2021 campaign. Is nothing sacred?

Quick Hits: Today’s Top Stories

• Former President Trump’s second Senate impeachment trial is set to begin today. Senate Majority Leader Chuck Schumer announced Monday that rules for the trial had been agreed upon by Senate Democrats and Republicans, Trump’s legal team, and the House impeachment managers. The House impeachment managers will have 16 hours to lay out their case over the next two days, after which Trump’s defense team will have the same amount of time.

• Rep. Ron Wright—a Texas Republican who was reelected to a second term in November—died Sunday at the age of 67 after testing positive for COVID-19 in late January. He had been battling lung cancer for years.  

• Republican Richard Shelby, 86, announced yesterday he won’t seek a seventh term representing Alabama in the U.S. Senate in 2022.

• In an 87-7 vote, the Senate confirmed Denis McDonough, President Obama’s former chief of staff, to serve as President Biden’s secretary of Veterans Affairs.

• The Biden administration announced yesterday it will “reengage” with the United Nations’ Human Rights Council, reversing the Trump administration’s withdrawal from the organization in June 2018. Secretary of State Antony Blinken conceded that the Council is a “flawed body” in need of reform, but he added the Trump administration’s withdrawal “created a vacuum of U.S. leadership, which countries with authoritarian agendas have used to their advantage.”

• At least 26 are dead and 165 people are still unaccounted for after part of a Himalayan glacier broke off in India’s Uttarakhand state Sunday, creating an avalanche of rock, mud, and water. 

• The United States confirmed 83,329 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 5.6 percent of the 1,477,997 tests reported coming back positive. An additional 1,412 deaths were attributed to the virus on Monday, bringing the pandemic’s American death toll to 464,845. According to the COVID Tracking Project, 80,055 Americans are currently hospitalized with COVID-19. According to the Centers for Disease Control, 1,206,680 COVID-19 vaccine doses were administered yesterday, bringing the nationwide total to 42,417,617.

Trump’s Second Impeachment Trial Begins

The second annual February Impeachment Trial of Donald Trump is set to commence later today. In her Uphill congressional newsletter, Haley previews the arguments both sides will make and breaks down what to expect in a proceeding where “the outcome isn’t really in doubt.” (Reminder: If you haven’t subscribed to Uphill, you can do so by clicking here and checking the box.)

Where are Republicans positioning themselves heading into this?

Most are expected to vote against convicting Trump after hearing the House managers’ case against him. Only five Republicans—Sens. Mitt Romney, Ben Sasse, Susan Collins, Lisa Murkowski, and Pat Toomey—voted to proceed to the trial alongside Democrats last month in the face of a GOP effort to dismiss it. Seventeen Republicans would have to join Democrats for conviction to be successful. That looks unlikely.

“It’s not a question of how the trial ends, it’s a question of when it ends,” South Carolina Republican Sen. Lindsey Graham said on CBS over the weekend. “Republicans are going to view this as an unconstitutional exercise, and the only question is, will they call witnesses, how long does the trial take?”

How will the trial be structured?

The impeachment managers and Trump’s counsel are expected to spend up to four hours, equally divided between the two sides, presenting arguments today about the constitutionality of the trial. After that, the full chamber will vote on whether the Senate has jurisdiction to try the former president, according to Senate Majority Leader Chuck Schumer. A simple majority is needed to proceed.

This vote could break down along exactly the same lines as last month’s procedural vote, but there could conceivably be a couple Republicans who vote differently this time. Some, such as Ohio Sen. Rob Portman, said they voted in favor of the motion to dismiss the trial only in order to have a debate about its constitutionality. Legal scholars across the political spectrum have largely agreed that trying a former president is constitutional. (So has Rep. Matt Gaetz.)

After that—with the expectation that the Senate will vote to affirm the trial as constitutional—the agreement between Schumer and Minority Leader Mitch McConnell for the schedule provides the managers and the defense with up to 16 hours each, spread out over two days per side, to present their cases. Those arguments will begin at noon on Wednesday.

Do we know what arguments each side will make?

Lawyers for Trump pushed back Monday on the charge of incitement of insurrection against the former president, arguing in a brief that Trump’s speech before the attack on the Capitol “was never directed to inciting or producing any imminent lawless action.”

The attorneys added that Trump “did not direct anyone to commit lawless actions” and made the case that the rioters acted of their own accord.

In their response, the managers rejected Trump’s defense. Democrats previously argued in a brief that Trump whipped the crowd “into a frenzy” and then aimed them at the Capitol building “like a loaded cannon.” 

“It is impossible to imagine the events of January 6 occurring without President Trump creating a powder keg, striking a match, and then seeking personal advantage from the ensuing havoc,” the managers wrote.

Some Encouraging COVID Numbers

The trend is undeniable: Coronavirus numbers are improving across the U.S. At the worst point of our winter surge in late January, more than 250,000 COVID-19 cases were being reported per day. Now, the seven-day average for new daily cases is just north of 100,000—and falling fast. Fewer Americans are hospitalized with the virus than at any point since November; the percentage of COVID tests coming back positive continues to shrink.

What accounts for the dip? It’s unlikely any specific U.S. policy deserves the credit—the same slowdown in new cases can be observed in Europe and other continents. By the same token, every region in America is experiencing a comparable improvement—the first time in the course of the entire pandemic that this has been the case.

Some experts point to the fact that the holiday months of November and December offered substantial temptation for people to have virus-spreading indoor gatherings, compared with the relatively surly and antisocial months of January and February.

Others have speculated that COVID might be susceptible to ordinary viral seasonal fluctuations in a way that was obscured during its first year on the planet, when it was working from a standing start in Wuhan. (This theory, popular among optimists in the early months of the pandemic, fell out of favor as cases rose through the summer—but in retrospect, that summer spike looks like a gentle slope compared to what we experienced in the last months of 2020.)

Then there’s the simple fact that the U.S. population as a whole is somewhat less susceptible to the virus than we were a year ago, due to the sheer number of people who have already had it. The U.S. has logged over 27 million cases of COVID-19 since the pandemic began, but the Centers for Disease Control (CDC) estimates that the number who have actually had it is actually far higher: 83.1 million as of the end of last year, which would be a full quarter of the U.S. population. That isn’t anywhere close to the level of saturation you’d need to see for the virus to burn itself out on its own, but it could certainly play a role in slowing the speed of transmission.

And, of course, there’s the Pfizer and Moderna vaccines, 42 million doses of which have already been administered to the public. Most experts say this isn’t the primary reason yet for the decreasing number of cases, given that comparably few people have received both doses of their course of either vaccine and that transmission is still taking place disproportionately among the young and healthy, while vaccinations are concentrated among the elderly and at-risk. Still, it’s hard to dispute that the shots are at least nibbling at the margins of viral transmission.

As with all good pandemic news these days, all this needs to be taken with a significant grain of salt: Both the COVID variant from England and the one originating in South Africa have been detected in the United States—about 700 confirmed cases across 34 states, according to CDC Director Rochelle Walensky. Since both are believed to be substantially more infectious than the reference strain, there’s a chance they could begin to tip the scales back in the opposite direction as they begin to spread. 

In a White House press briefing yesterday, Dr. Anthony Fauci told reporters the UK virus variant could become the “dominant” strain in the U.S. by the end of March, though he reiterated that our existing vaccines are “quite effective” against it.

“Less so against the South African [variant],” he continued. “But hopefully we will get the virus under much better control by the time there’s any indication that that might become dominant.”

These mixed signals—positive-looking data on the one hand, another hurdle potentially on the horizon—make it difficult for public health officials to convey important messages without losing an already exhausted populace.

“You know, we’re still in unprecedented territory,” said Dr. Jeff Niederdeppe, a professor at Cornell University and expert in public health messaging campaigns. “The fact that this has been going on for almost an entire year, there’s just no getting around the public health fatigue element of things. … From a messaging standpoint, one of the most persuasive things I’ve heard is, if you think about a normal curve, that moment at which the curve peaks and starts to descend is only an indication of being halfway done.”

Worth Your Time

• Donald Trump’s legal team—and the majority of Republicans in the Senate, led by Sen. Rand Paul—have been arguing in recent weeks that the former president’s impeachment trial is unconstitutional because he’s no longer in office. In a Wall Street Journal opinion piece, Charles Cooper—one of the top conservative constitutional lawyers in the country—argues they are mistaken. “If removal were the only punishment that could be imposed, the argument against trying former officers would be compelling,” he says. “But it isn’t. Article I, Section 3 authorizes the Senate to impose an optional punishment on conviction: ‘disqualification to hold and enjoy any office of honor, trust, or profit under the United States.’” That punishment, he reminds us, can only be imposed on former officeholders. “The senators who supported Mr. Paul’s motion,” Cooper concludes, “should reconsider their view and judge the former president’s misconduct on the merits.”

• If you asked an American to guess which state’s vaccine distribution process has been the most successful thus far, few would likely choose West Virginia. But West Virginia is near the top in every key distribution statistic: It has administered 91 percent of the doses allocated by the federal government, nearly 12.5 percent of its population has received at least one dose thus far, and six percent has received both. According to Christopher Martin, a professor at West Virginia University’s school of public health, much of this success can be chalked up to the state’s strong sense of shared identity and public officials’ eagerness to collaborate with community leaders on the local level. “Unlike many other states, we modified the national vaccine-administration plans to reflect regional realities,” Martin writes in The Atlantic. Rather than follow the federal government’s plan to administer vaccines to long-term care facilities through CVS and Walgreens, West Virginia opted to run distribution through independent, community-based pharmacies across the state. “Most of the pharmacists at these stores, which often carry the names of owners who were born and raised in that community, are people whom residents know, and who know the residents.”

• In a piece for Vanity Fair, Peter Hamby argues it was Sarah Palin—not Donald Trump—who first fused “backlash politics and anti-elitism with the mighty American power of celebrity.” He urges readers to consider the former Alaska governor’s career arc when prognosticating about Trump’s future. “Right now, for Trump, that kind of political trajectory—from the center of the known universe to a lesser moon orbiting Pluto—feels like an impossibility,” he writes. “He will tease a presidential run, and maybe box out other Republican contenders in the process. But the center of gravity in politics always changes, whether he decides to run or not.”

• Klon Kitchen—whom we have often quoted in TMD as a tech policy expert—recently joined the American Enterprise Institute, and moved his newsletter—The Kitchen Sync—to Substack. Yesterday’s edition focused on new data privacy legislation, the latest on the SolarWinds hack, and the cybersecurity concerns surrounding the COVID-19 vaccines. If that sounds up your alley, check it out!

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• After a requisite breakdown of the Super Bowl, Monday’s Advisory Opinions episode revisits the ongoing question of religious liberty in the age of pandemic law. Tune in to hear David and Sarah discuss Smartmatic’s defamation lawsuit against Fox News, Trump’s First Amendment defense in his impeachment trial, and more.

Let Us Know

Former President Trump’s second impeachment trial is set to take place in a very different political reality than his first a year ago. The trial is beginning at a time where one portion of the Republican Party is ready to move on from the president, while a significant chunk is fighting to continue what he started. 

Would a conviction—and Trump being barred from holding future office—loosen Trumpism’s grip on the GOP, or strengthen it? What is the best case scenario for the Republican Party? For the country?

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