| | | | | |  | | By Jeffrey Rosen | Presented by |  | | | | | | |  | DRIVING THE DAY | | Good morning! I'm JEFFREY ROSEN, president of the National Constitution Center. I'm not JEFFREY A. ROSEN, the acting attorney general of the United States. So please stop tweeting me @rosenjeffrey demanding that I invoke the 25th Amendment! The matter for debate this morning: Does the Senate have the power to try President DONALD TRUMP after he leaves office and bar him from running again? Sen. TOM COTTON (R-Ark.) has concluded that Congress lacks that power; GOP leader MITCH MCCONNELL has left open the possibility that Congress has the power and that he will consider voting to convict. My view: The Senate does have the power to try a former president. And if the Senate agrees, the Supreme Court should not, and likely will not, intervene. Because no former president has been tried before, there are no direct precedents that settle the question. On one side is J. MICHAEL LUTTIG, an influential former appeals court judge who writes that the Senate can't hold an impeachment trial once the president leaves office because he cannot "be removed from Office," as the Impeachment Clause in Article II, Section 4 provides. But I'm persuaded by other scholars, such as LAURENCE TRIBE and STEPHEN VLADECK, who notes that a person shouldn't be able to avoid the penalty of disqualification from holding future office by, say, resigning moments before the Senate trial takes place. (The corrupt Secretary of War WILLIAM BELKNAP tried to do exactly that when he resigned in 1876 minutes before the House voted on his impeachment, Vladeck points out. The Senate acquitted BELKNAP, but not before concluding that he could be tried "for acts done as Secretary of War, notwithstanding his resignation of said office.") Trump shows no intention of resigning before Jan. 20, but I think the same principle applies. The bottom line: If the Senate decides to convict Trump, it will probably have the final say. And SCOTUS, in all likelihood, will defer to the Senate's interpretation of its own rules. A look at past Supreme Court decisions shows why. In a 1993 case involving the impeachment of Judge Walter Nixon, the Supreme Court unanimously said that courts shouldn't second-guess whatever rules the Senate adopts for impeachment trials. Senate rules are "political questions," the Court said, because Article Section 3 of the Constitution says "the Senate shall have the sole Power to try all impeachments." Chief Justice WILLIAM REHNQUIST'S opinion for the Court left open a possible role for Supreme Court review only if the Senate violated the "three specific requirements" in the text of the Constitution: "that the Senate's members must be under oath or affirmation, that a two-thirds vote is required to convict and that the chief justice presides when the president is tried." It's hard to predict whether five justices on the current Supreme Court would agree to second-guess the timing of a Senate impeachment trial conducted after Trump is gone. Or whether the justices would question the trial of former president Trump if VP KAMALA HARRIS, rather than Chief Justice JOHN ROBERTS, presides. But given Roberts' stated efforts to keep the Court out of deciding political questions whenever possible, I wouldn't bet on it. | | A message from the American Petroleum Institute: Meeting energy needs and tackling climate change isn't either/or. We have to do both. That's why America's natural gas and oil companies are working on climate solutions that will help the U.S. remain the world leader in reducing emissions. Let's make even more progress together. | | | Impeachment isn't the only momentous constitutional question the Court may avoid deciding in the wake of the Jan. 6 attack on the Capitol. Some constitutional scholars are making the case that the 14th Amendment's obscure section 3 offers a sounder basis than an impeachment trial for disqualifying Trump from holding future office. MARCIA COYLE offers a useful primer on the forgotten history of section 3, which the House quoted in the impeachment against Trump. It says that "no person shall hold any office, civil or military, under the States" who "shall have engaged in insurrection or rebellion." COYLE says section 3 could be applied against Trump with a simple majority vote by each chamber of Congress, whereas impeachment requires a two-thirds vote in the Senate. Trump might challenge his disqualification if the new Democratic House and Senate passed it by a simple majority. Translation: The Democrat-controlled Congress could act unilaterally to bar Trump from holding future office. It also means that, if the Senate refuses to convict Trump in the impeachment trial, his fate may continue to distract Congress and the Supreme Court for weeks or even months as President JOE BIDEN pushes for the consideration of his $1.9 trillion recovery package. (As a political matter, it's another question whether Democrats would want to stop the most divisive force in the Republican Party from running again.) But either way, it's unlikely, once again, that the Supreme Court would intervene, instead viewing it as a political question that Congress alone can decide. In my view, that's a good thing. In the wake of the only domestic assault on the Capitol in American history, it's healthy for our democracy that representatives and senators are making decisions about what the Constitution means, rather than counting on the Supreme Court to make these decisions for them. | | | |   | | | The Framers of the Constitution expected representatives and senators to act virtuously, which they defined as using their powers of reason to transcend selfish passions, such as partisanship, avarice and ambition. They came to Philadelphia in 1787 because they feared the power of demagogues to incite violent mobs, like Shays' Rebellion, the mob of debtors in Western Massachusetts who attacked the courthouse. If there's any silver lining to the current crisis, it's focusing America on the urgent need for constitutional education. More than 500,000 users a day have been clicking on the National Constitution Center's explainer on the 25th Amendment. It's hosted on our nonpartisan Interactive Constitution, which convenes top conservative and liberal scholars to write about every section of the Constitution, exploring areas of agreement and disagreement. As long as citizens continue to educate themselves about our founding principles and current debates, the Constitution will prevail. Over to the Playbook crew … | | | | KEEP UP WITH THE FIRST 100 DAYS OF THE BIDEN ADMINISTRATION WITH TRANSITION PLAYBOOK: It was a dark week in American history, and a new administration will have to pick up the pieces. Transition Playbook brings you inside the last days of this crucial transfer of power, tracking the latest from President-elect Biden and his growing administration. Written for political insiders, this scoop-filled newsletter breaks big news and analyzes the appointments, people, and the emerging power centers of the new administration. Track the transition and the first 100 days of the incoming Biden administration. Subscribe today. | | | | | | | PLAYBOOK READS | | | 
PHOTO DU JOUR: Armed members of the National Guard stand outside the Capitol Building on Thursday, Jan. 14. | Andrew Harnik/AP Photo | BIDEN'S BIG SPEECH — "'A call for unity': Biden lays out vast federal expansion of pandemic response," by Alice Miranda Ollstein and Adam Cancryn: "In a speech in Wilmington, Del., Biden, called on Congress to swiftly pass a nearly $2 trillion relief package soon after he takes office, with significant sums directed at expanding testing, accelerating vaccine deployment and safely reopening schools. The bill will also include $1,400-per-person checks to working families, extended unemployment insurance and housing and nutrition aid. … "His central message is the federal government is finally ready to meet the moment and will no longer leave financially struggling states on their own … Across a planned two-day rollout of his pandemic strategy, Biden will also propose creating a federal public health corps of 100,000 people and deploying them to states to staff vaccination sites, bolster contact tracing and launch new programs to better reach rural communities." NPR INTERVIEW: "With Impeachment Trial And Relief Plan On Deck, Harris Stresses Need To 'Multitask'" CORONAVIRUS RAGING … The U.S. reported 3,915 Covid-19 deaths and 223,000 new coronavirus cases Thursday. THE AWFUL TRUTH — "The Covid-19 Death Toll Is Even Worse Than It Looks," WSJ: "The recorded death count from the Covid-19 pandemic as of Thursday is nearing 2 million. The true extent is far worse. More than 2.8 million people have lost their lives due to the pandemic, according to a Wall Street Journal analysis of data from 59 countries and jurisdictions. This tally offers the most comprehensive view yet of the pandemic's global impact. Deaths in these places last year surged more than 12% above average levels." THE PRESENT THREAT — "Biden inauguration rehearsal is postponed due to security threats," by Tyler Pager and Olivia Beavers: "A rehearsal for Joe Biden's inauguration scheduled for Sunday has been postponed because of security concerns, according to two people with knowledge of the decision. … The rehearsal is now planned for Monday." — "Online extremists are ignoring Trump's call for calm," by Tina Nguyen and Mark Scott: "A vast swath of the president's diehard base in MAGA Nation — the conspiracy theorists, the militia members, and the followers of the QAnon conspiracy theory — has disregarded Trump's Wednesday remarks. Instead, they are dissecting his phrases and using those cues as rallying cries, doubling down on their plans to keep the MAGA movement going after Trump leaves the White House. "The absence of a formal Trump concession to President-elect Joe Biden has emboldened their chatter and bolstered their ideology. So, too, has the clamp-down by social media platforms on MAGA extremist content — Trump's own posts included — which has given white nationalist and unapologetically fascist groups openings to recruit Trump fans to their cause." CHENEY HANGS ON AFTER IMPEACHMENT VOTE — "McCarthy rejects kicking Cheney from GOP leadership," by Matthew Choi and Melanie Zanona MAJOR WAPO RECONSTRUCTION — "'We got to hold this door': How battered D.C. police made a stand against the Capitol mob" FOR YOUR RADAR — "Lawmakers who conspired with Capitol attackers in legal peril," by Josh Gerstein: "Lawmakers who interacted with the pro-Trump protesters who rioted at the Capitol last week could face criminal charges and will almost certainly come under close scrutiny in the burgeoning federal investigation into the assault, former prosecutors said. "'This is incredibly serious,' said Ron Machen, a former U.S. attorney for Washington, D.C. 'Although you would need compelling evidence before charging a member of Congress with anything related to the breach of the Capitol that day, this has to be investigated.' Unlike with the president, there's no Justice Department policy shielding members of Congress from legal accountability while in office." THE FULL ARREST PICTURE — "FBI director says 100 arrests to date from Capitol riots," by Kyle Cheney and Josh Gerstein: "The Justice Department also announced on Thursday evening that the FBI had received more than 140,000 tips identifying rioters and had opened about 200 subject case files." — "Feds edge closer to sedition charge in Capitol riot aftermath," by Kyle Cheney and Josh Gerstein: "Federal prosecutors on Thursday for the first time described last week's assault on the U.S. Capitol as a 'violent insurrection that attempted to overthrow the United States Government' — and one they consider to still be underway. … "FBI and Justice Department officials have emphasized that more serious charges are on the horizon, after an initial round of lesser charges were leveled to ensure they corralled some of the most dangerous offenders." — "The Guy Who Flew a Confederate Flag in the Capitol Has Predictably Surrendered," Vice: "Kevin Seefried has been identified as the middle-aged goateed man who was photographed carrying a huge and historically racist confederate flag as he marched uninvited around the halls of Congress on Jan. 6. He surrendered to authorities in Wilmington, Delaware, on Thursday, along with his son, Hunter Seefried, according to the Department of Justice." — FIRST LIBERAL CHARGED: "Liberal Utah activist charged with joining Capitol riot," by Josh Gerstein | | | |   | | | NOT ON CRUZ CONTROL — "Ted Cruz's Former Staffers Are 'Disgusted' by His New Low for Trump," New York magazine: "Intelligencer spoke to more than half-a-dozen former Cruz staffers who have spent the past week trying to reconcile the man they once believed in with the politician they saw on January 6 when — hours after a mob tore through the Capitol — Cruz voted to throw out electoral votes from states that voted for Joe Biden, just as the rioters and Trump wanted. They say their former boss has become unrecognizable to them." NOTE OF CONTRITION — "Sen. James Lankford apologizes to Black Tulsans for questioning presidential election results," Tulsa World: "In a letter addressed to 'My friends in North Tulsa,' Lankford acknowledges that his actions 'caused a firestorm of suspicion among many of my friends, particularly in Black communities around the state. I was completely blindsided, but I also found a blind spot.'" WHAT TRUMP IS UP TO — "Trump Plans to Live at Mar-a-Lago, Employ Some Current Aides," Bloomberg: "Donald Trump plans to fly to his Mar-a-Lago resort in Florida sometime before Joe Biden's inauguration, where several current White House staff will work for him or his son-in-law Jared Kushner after his presidency, according to people familiar with the matter. "Trump intends to live at the Palm Beach resort, the people said, though some of his future neighbors are trying to stop him from taking up permanent residence. In Washington, the State Department extended an invitation to Biden and his wife, Jill, to stay at Blair House, a historic home near the White House, the night before the inauguration on Jan. 20, according to people familiar with the matter." LOOK WHO'S BACK — "Trump Reconciles With Ex-Strategist Steve Bannon in Talks on Election," Bloomberg: "President Donald Trump has repeatedly spoken by phone in recent weeks with once-estranged White House adviser Steve Bannon, who's facing federal criminal charges, for counsel on his campaign to overturn his re-election defeat, according to people familiar with the matter. One person familiar with the matter said the president has sought out allies who would tell him what he wants to hear as he promulgated false claims that the election was stolen from him." LAME DUCK QUACKING — "Trump admin races to enact term limits for top health scientists," by David Lim and Sarah Owermohle: "The Trump administration is rushing to enact term limits for top federal health scientists that could increase political pressure on some of the most prominent critics of the president's pandemic response — even after Trump leaves office, say three current senior health officials. "The regulation, which the Department of Health and Human Services could issue as a direct final rule within days, would mandate job reviews every five years for career federal scientists who serve as center directors at the Food and Drug Administration, Centers for Disease Control and Prevention and other health agencies. The reviews could lead to renewal — or reassignment." HOW IT (REALLY) HAPPENED — "Jeff Sessions' DOJ was 'driving force' behind family separation policy, IG report finds," by Sabrina Rodríguez … The report THE PRESIDENTIAL TWITTER — "Biden Team Starts @PresElectBiden While Clashing With Twitter," Bloomberg: "Joe Biden's transition team flipped the switch on a new Twitter account for the president-elect on Thursday night, while clashing with the social media company over its decision to deny the incoming administration millions of existing White House followers. "Biden's transition opened @PresElectBiden in order to start building a following for one of the official accounts the new president will inherit at noon on Jan. 20: @POTUS. In a change in practice from 2017, when President Donald Trump entered office, Twitter Inc. plans to reset both the @POTUS and @WhiteHouse official accounts to zero followers for Biden." NOT HAPPENING TODAY — "Senate postpones first confirmation hearing for crucial position in Biden administration," CNN: "The Senate Select Committee on Intelligence postponed Friday's confirmation hearing for President-elect Joe Biden's pick to be the next director of national intelligence, Avril Haines … A source familiar, who said the timeline for confirmation is not expected to be altered significantly, said the reason for the delay was a senator wanted the hearing in person, and Friday's session was slated to be remote." TRUMP'S FRIDAY — The president has nothing on his public schedule. — Biden and Harris will meet with transition advisers, and Biden will participate in a finance event for the Presidential Inaugural Committee. He'll deliver remarks on his vaccination plan at 3:45 p.m. in Wilmington, which Harris will attend. MEDIAWATCH — NBCUniversal is launching NBCU Academy, a training and development program it calls "a centerpiece of our diversity initiative" that will partner with 17 higher education institutions to help expand the career pipeline for college-level students. Yvette Miley is leading the effort. More details — Jewish Insider is launching a new podcast, "Jewish Insider LLP (Limited Liability Podcast)." The weekly show will be hosted by Rich Goldberg and Jarrod Bernstein, who served in the Trump and Obama administrations, respectively. The first guest is Rep. Ritchie Torres (D-N.Y.). TV TONIGHT — PBS' "Washington Week," guest-hosted by Yamiche Alcindor: Peter Baker, Geoff Bennett, Seung Min Kim and Pierre Thomas. SUNDAY SO FAR … | CNN | "State of the Union": Rep. Jamie Raskin (D-Md.) … incoming White House chief of staff Ron Klain … H.R. McMaster … Sen. Dick Durbin (D-Ill.). | CBS | "Face the Nation": West Virginia Gov. Jim Justice … Rep. Adam Schiff (D-Calif.) … incoming CDC Director Rochelle Walensky … Scott Gottlieb. | FOX | "Fox News Sunday": Incoming National Economic Council Director Brian Deese. Panel: Karl Rove, Kristen Soltis Anderson and Juan Williams. Power Player: Tim Cook. | Sinclair | "America This Week": Megyn Kelly … Raz Simone … Daniel Lippman … Peter Navarro. | ABC | "This Week": Panel: Chris Christie, Rahm Emanuel, Sara Fagen and Karen Finney. | NBC | "Meet The Press": Panel: Rich Lowry, Claire McCaskill and Kristen Welker. | | | | | | A NEW YEAR, A NEW CONGRESS, A NEW HUDDLE: It was an ugly and heartbreaking week inside the Capitol, particularly for all of those who work on the Hill. How are lawmakers planning to move forward? How will security change? How will a new Senate majority impact the legislative agenda? With so much at stake, our new Huddle author Olivia Beavers brings you the most important news and critical insight from Capitol Hill with help from POLITICO's deeply sourced Congress team. Subscribe to Huddle, the essential guide to understanding Congress. It has never been more important. SUBSCRIBE NOW. | | | | | | | PLAYBOOKERS | | Send tips to Eli Okun and Garrett Ross at politicoplaybook@politico.com. STAFFING UP — Incoming first lady Jill Biden announced several new staffers: Rory Brosius as executive director of Joining Forces, Michael LaRosa as press secretary, Vanessa Lion as deputy policy director, Liz Hart as deputy social secretary, Gina Lee as director of scheduling and advance, Jordan Montoya as director of advance and trip director and Garima Verma as digital director. TRANSITIONS — Joanna Rodriguez will be deputy comms director at the Republican Governors Association. She most recently was NRSC press secretary during the 2020 cycle, and is a Carlos Curbelo and Marco Rubio alum. … Trevor Hanger is now an SVP at Forbes Tate Partners. He previously was president and director of research at Height Capital Markets. … … Willie Brown and Ed Rollins are launching a new San Francisco public affairs firm, Unifire Advisors. Brown's a former San Francisco mayor, and Rollins was campaign manager for President Ronald Reagan's reelect. Brent Lowder, Eric Beach, and Michael McClelland will join them at the firm. G-d knows what we'll be doing at 86 years old (Brown) or 77 (Rollins), but it won't be launching a new business. (h/t Alex Isenstadt) BIRTHDAY OF THE DAY: Jonny Hiler, principal at Miller Strategies. A trend he thinks doesn't get enough attention: "Over the last few decades, Hollywood, Big Tech, the media, academia and one of our two political parties have all come to adopt essentially the same worldview. This seems to correlate with a diminishment of humility and tolerance as national virtues, with attendant effects on our politics. It's not clear how long the institutions that sustain our liberal democracy can hold under such trends." Playbook Q&A BIRTHDAYS: CNN's Jeremy Diamond … Hawaii Gov. David Ige is 64 … Mark Penn, president of the Stagwell Group, is 67 … Amanda Sloat … Sarah Kliff, NYT investigative reporter … New Yorker staff writer Jon Lee Anderson is 64 … Ben Shapiro is 37 … Stuart Eizenstat, senior counsel at Covington and Burling, is 78 … Deesha Dyer … Scott Hall … Invernergy's Andrew Wills (h/t Mitchell Rivard) … Chuck Babington … Wesley Morgan … Jaymi Light, health policy director for Sen. Todd Young (R-Ind.) … Matthew Hoeck, aide for Sen. Ben Ray Luján (D-N.M.), is 27 … IPCC's Jonathan Lynn … Jason Larrabee is 48 … Jeff Carroll, staff director for the House Energy and Commerce Dems … Lorraine Voles … Joe Fuld (h/ts Teresa Vilmain) … Kyle Herrig, president of Accountable.US, is 39 (h/t Karl Frisch) … WaPo's Aaron Gregg is 31 … … Dan Scavino … George Sifakis … Pat White … Robin Goldman … Scott Stanzel, managing VP of corporate comms at Capital One … Lisa Garcia … Adam Levine … Valeri Vasquez … Lisa Zamosky … Sam Schulz … David Zaslav, president and CEO of Discovery Inc., is 61 … Katherine LaBeau … Dale Bishop is 31 … Don Sapatkin … Mina Hamblet … Alison Percich … Rebecca Haller ... Claire DeMatteis is 56 ... Sarah Svoboda, producer at Vice News … Apple's Margaret Richardson … Airbnb's Christopher Nulty … Adam Sexton … Spencer Chretien ... Erin Lardy ... Daniel Arkin ... Mike Hoffman … Stephen Lewis ... Lisa (Burgess) Belot ... Melissa Green, partner at Rational360 … David Agnew … Joe Coletti … Jordan Ray … Gregory Ehrlich … Alex Xu ... James Thompson is 41 … Toni Verstandig … Israr Khan … Bruce Schneier is 58 | | A message from the American Petroleum Institute: Reducing emissions and providing affordable, reliable energy shouldn't be a choice. We can and must do both. Today, America is leading the world in CO2 emission reductions. As we look toward tomorrow and the future, America's natural gas and oil companies are working with the country's brightest minds and organizations to continue that progress while reliably delivering essential energy. Join us to create real, lasting progress – together. | | | | | | | Subscribe to the POLITICO Playbook family Playbook | Playbook PM | California Playbook | Florida Playbook | Illinois Playbook | Massachusetts Playbook | New Jersey Playbook | New York Playbook | Brussels Playbook | London Playbook View all our political and policy newsletters | | Follow us | | | | |
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