Dueling Legal Filings Offer Preview of Trump Impeachment Trial

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Former President Donald J. Trump shook up his legal team just 48 hours before the legal brief was due.
Credit…Oliver Contreras for The New York Times

Former President Donald J. Trump’s lawyers denied on Tuesday that he incited the deadly assault on the Capitol and argued that the Senate had no power to try a former president, as House prosecutors made their case that Mr. Trump was “singularly responsible” for the Jan. 6 rampage and must be convicted and barred from holding any future office.

The dueling filings provided the clearest preview yet of a politically fraught impeachment trial — the second in just a year — scheduled to begin in earnest next Tuesday. Both sides indicated they were ready for a debate over the constitutionality of trying a former president. They were also lining up diametrically opposed interpretations of a set of events witnessed on live television across the nation.

In his first formal answer to the “incitement of insurrection” charge against him, Mr. Trump’s lawyers denied that he was responsible for the Capitol riot or that he intended to interfere with Congress’s formalizing of President Biden’s election win. They said his words to supporters, some who later stormed the building — “if you don’t fight like hell, you’re not going to have a country anymore” — were protected by his First Amendment right of free speech. They said they were not meant as a reference to violent action, but “about the need to fight for election security in general.”

“It is denied that President Trump incited the crowd to engage in destructive behavior,” the lawyers, Bruce L. Castor Jr. and David Schoen, wrote in the 14-page filing.

Notably, the document avoided repeating or attempting to defend Mr. Trump’s bogus claims that the November election had been “stolen” from him by widespread fraud, which the former president had wanted to be the central feature of his defense. But his lawyers in effect argued that Mr. Trump believed he won, and therefore was within his rights to “express his belief that the election results were suspect.” His claims could not be disproved, they added, because there was “insufficient evidence.” (The fraud claims were rejected in more than 60 court cases.)

Above all, the former president’s lawyers said the Constitution did not permit the Senate to try a former president after he had left office — despite the fact that the Senate has tried a former official in the past.

The response arrived two hours after the nine House Democrats preparing to prosecute the case argued in their own 80-page pretrial brief that Mr. Trump was directly to blame for the violent attack on Jan. 6 and a broader attack on democracy that showed he would do anything to “reassert his grip on power” if he were allowed to seek election again.

“President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power,” wrote the managers, led by Representative Jamie Raskin of Maryland. “A president who violently attacks the democratic process has no right to participate in it.”

The House prosecutors also refuted Mr. Trump’s constitutional challenge to the case, asserting that history and even conservative constitutional theory supported the Senate’s right to try a former president.

“There is no ‘January exception’ to impeachment or any other provision of the Constitution,” the managers wrote. “A president must answer comprehensively for his conduct in office from his first day in office through his last.”

They likewise insisted that Mr. Trump’s First Amendment right to free speech did not shield him from responsibility for inciting violence that would seek to do harm to the Constitution, undermining all the rights enshrined there, including free speech.

Mr. Trump’s response took an unusual form, addressing the House’s article of impeachment point by point. It also appeared to be somewhat hastily assembled after Mr. Trump shook up his legal team just 48 hours before the brief was due; the response was addressed to the “Unites States Senate.”

President Joe Biden returning to the White House after visiting injured service members at Walter Reed National Military Medical Center in Bethesda, Md., on Friday.
Credit…Anna Moneymaker for The New York Times

President Biden plans to sign three executive orders on Tuesday aimed at further rolling back his predecessor’s assault on immigration.

In one order, the president will direct the secretary of homeland security to lead a task force that will try to reunite several hundred families that remain separated under former President Donald J. Trump’s “zero tolerance” policy, which sought to discourage migration across the country’s southern border. More than 5,000 families were separated.

The Senate is expected to confirm Mr. Biden’s nominee to run the Homeland Security Department, Alejandro N. Mayorkas, on Tuesday.

Under Mr. Biden’s order, the federal government will seek to either bring parents to the United States or return children to parents who are living abroad, depending on the wishes of the families and the specifics of immigration law.

In two other orders, Mr. Biden will authorize a review of Mr. Trump’s immigration policies that limited asylum, stopped funding to foreign countries, made it more difficult to get green cards or be naturalized, and slowed down legal immigration into the United States

Mr. Biden is to formally announce the three orders on Tuesday afternoon at the White House. They help satisfy some of his campaign promises but underscore the difficulty the new president faces in unraveling scores of individual policies and regulations.

Pete Buttigieg, whom President Biden selected to be his secretary of transportation, will oversee an agency that employs 55,000 people and controls $87 billion in funding.
Credit…Pool photo by Stefani Reynolds

The Senate on Tuesday confirmed Pete Buttigieg, the former mayor of South Bend, Ind., and a 2020 Democratic presidential candidate, to be transportation secretary, putting in place a key emissary to President Biden as his administration seeks an ambitious overhaul of the nation’s infrastructure.

The confirmation, by a vote of 86 to 13, makes Mr. Buttigieg, 39, the first openly gay cabinet secretary to be confirmed by the Senate, as well as Mr. Biden’s youngest cabinet member.

Mr. Buttigieg’s bipartisan confirmation underscored the support he has received from lawmakers in both parties as he charted a vision for infrastructure reform that aligned with Mr. Biden’s goals on climate change, racial justice, job creation and economic recovery.

As transportation secretary, Mr. Buttigieg will oversee an agency that employs 55,000 people and controls around $87 billion in funding at a time when the country’s public transit systems are reeling from the pandemic. He is expected to play a key role in shepherding efforts by the Biden administration to push a $2 trillion infrastructure plan through Congress.

At his confirmation hearing last month, Mr. Buttigieg spoke of a “generational opportunity” to transform infrastructure. He pledged to work with state, local and tribal leaders on transportation concerns, while trying to mitigate the effect that transportation policies have historically had on poor and minority communities.

“I believe good transportation policy can play no less a role than making possible the American dream,” Mr. Buttigieg said. “But I also recognize that at their worst, misguided policies and missed opportunities in transportation can reinforce racial and economic inequality.”

Mr. Buttigieg’s confirmation was described by a number of human rights groups as a symbolic moment for the L.G.B.T.Q. community.

“This confirmation breaks through a barrier that has existed for too long; where LGBTQ identity served as an impediment to nomination or confirmation at the highest level of government,” Alphonso David, president of Human Rights Campaign, a group dedicated to advancing the interests of the L.G.B.T.Q. community, said in a statement. “Let this important moment for our movement serve as a reminder to every L.G.B.T.Q. young person: you too can serve your country in any capacity you earn the qualifications to hold.”

Democratic lawmakers said the cuts “benefit a narrow set of high-income taxpayers” in a letter to Senator Chuck Schumer, the majority leader, and Speaker Nancy Pelosi.
Credit…Stefani Reynolds for The New York Times

More than 100 Democratic lawmakers are urging Speaker Nancy Pelosi of California and Senator Chuck Schumer of New York, the majority leader, to repeal a business tax break as part of the economic aid package that Democrats hope to send to President Biden in the coming weeks.

The lawmakers, led by Representative Lloyd Doggett of Texas and Senator Sheldon Whitehouse of Rhode Island, say the move — and a related change that would effectively raise taxes on some businesses in the years to come — could reduce federal borrowing for the aid package by as much as $250 billion.

Mr. Biden has proposed a $1.9 trillion plan, all financed with borrowed money. Many Republicans have objected to the price tag, saying it is more than what the economy needs and will further bloat the federal deficit.

On Monday, 10 Senate Republicans countered with a $618 billion plan. But those Republican lawmakers will almost certainly reject any increase in business taxes as a means of bridging the two sides’ gap on borrowing for the bill.

The tax cuts in question — which center on so-called net operating losses — were included in a rescue bill Congress passed in March 2020, as the pandemic spread and the nation was in the midst of a recession. They were temporary rollbacks of a limitation placed on business deductions by the 2017 tax law that Republicans passed and former President Donald J. Trump signed. In effect, the March provision allowed some companies that suffered large losses in recent years to reduce their tax bills to the federal government, by applying those losses to offset taxes on profits from the previous five years.

Proponents of those tax breaks — including congressional Republicans and business groups — said the move would provide a cash infusion to companies struggling amid the pandemic.

In their letter to Ms. Pelosi and Mr. Schumer, the Democratic lawmakers say the cuts “benefit a narrow set of high-income taxpayers, including hedge funds, real estate developers, and likely the Trump family.”

“The best place to start for Republicans urging more narrowly-targeted relief is eliminating the $250 billion bonanza for hedge fund managers and real estate speculators they previously tucked into the CARES Act,” Mr. Doggett and Mr. Whitehouse said in a written statement. “With 120 Democratic lawmakers, we urge negotiators to halt the windfall to the least needy and reinvest in the most needy.”

The lawmakers propose repealing the change, which applied to losses incurred from 2018 to 2020, and making permanent the Trump-era limitation on the carrying back of net operating losses.

Together those changes would raise federal revenues by an estimated $250 billion over a decade, the lawmakers said, citing estimates from the congressional Joint Committee on Taxation. Some of that money would come from the government “clawing back” tax refunds sent to companies that have already filed their taxes and made use of the expanded loss provision.

Senate Minority Leader Mitch McConnell of Kentucky had strong words about Representative Marjorie Taylor Greene, Republican of Georgia.
Credit…Oliver Contreras for The New York Times

Senator Mitch McConnell said on Monday that the “loony lies and conspiracy theories” embraced by Representative Marjorie Taylor Greene amounted to a “cancer” on the Republican Party, issuing what in effect was a scathing rebuke to the freshman House Republican from Georgia.

In a statement reported earlier by The Hill, Mr. McConnell of Kentucky, the minority leader, never named Ms. Greene, but he referred to several of the outlandish and false conspiracy theories she has espoused and warned that such statements were damaging the party.

“Loony lies and conspiracy theories are cancer for the Republican Party and our country,” Mr. McConnell said. “Somebody who’s suggested that perhaps no airplane hit the Pentagon on 9/11, that horrifying school shootings were pre-staged, and that the Clintons crashed J.F.K. Jr.’s airplane is not living in reality. This has nothing to do with the challenges facing American families or the robust debates on substance that can strengthen our party.”

House Republican leaders in the past week have been mostly silent as pressure mounted to respond to the cascade of Ms. Greene’s problematic social media posts and videos that have surfaced in the past week, in which she endorsed a seemingly endless array of conspiracy theories and violent behavior, including executing Democratic leaders.

Mr. McConnell’s comments intensified pressure on Representative Kevin McCarthy of California, the minority leader, who is to meet with Ms. Greene later this week amid calls from outside Republican groups and some members of his own party to revoke the Georgia freshman’s committee assignments.

Ms. Greene offered her own retort in response to Mr. McConnell on Twitter, saying “the real cancer” on the party was “weak Republicans who only know how to lose gracefully.”

As Republicans splinter over how to deal with Ms. Greene, Democrats are seizing on the infighting to make her the avatar for an array of G.O.P. lawmakers.

The Democratic Congressional Campaign Committee on Tuesday began a $500,000 advertising campaign on television and online tying eight House Republicans, including Mr. McCarthy to Ms. Greene and QAnon, an effort to force them to make a public affirmation about Ms. Greene.

“Congressman Don Bacon,” an ominous-sounding voice intones in the ad targeting the Nebraska Republican, “he stood with Q, not you.”

The strategy is similar to the one Republicans employed against Democrats last summer during the protests over racial injustice, when they sought to paint all Democrats as in favor of defunding the police, including President Biden, who repeatedly said he did not favor it.

Democrats in Washington have adopted Ms. Greene as the symbol of the post-Trump Republican Party, aiming to elevate her profile as part of an effort to divide the G.O.P. while seeking to force Republicans to vote on whether to allow her to remain on House committees. On Saturday, Speaker Nancy Pelosi’s press office issued a news release under the headline “Minority Leader McCarthy (̶G̶O̶P̶)̶ (QAnon) Embraces Marjorie Taylor Greene.”

House Democrats on Monday indicated that they were prepared to unilaterally remove Ms. Greene from her committees if Mr. McCarthy does not act, advancing a measure to strip her of assignments that will be considered by the House Rules Committee on Wednesday.

Protestors surrounded the Capitol as they breached the doors on Jan. 6.
Credit…Jason Andrew for The New York Times

Nearly a dozen people who the authorities said made politically motivated threats by social media or phone have been charged with federal crimes — most of them were nowhere near Washington on the day of the Jan. 6 riot.

In recent weeks, law enforcement has arrested a Proud Boys supporter in New York accused of posting violent threats on the social media network Parler; a Colorado man charged with sending a text about “putting a bullet” in Speaker Nancy Pelosi; and a man near Chicago implicated in a voice mail message about killing Democrats on Inauguration Day.

Even though they were not physically present during the Jan. 6 attack on the Capitol, they have become part of its sprawling fallout, as investigators scour the country to track down hundreds of rioters and examine whether right-wing extremist groups were involved in organizing the attack.

Law enforcement agencies have long struggled to decipher whether online statements could lead to real danger, wary of bringing cases hinged largely on speech that could be protected by the First Amendment. But the volume of tips about threats has skyrocketed since the Capitol assault, compelling some officials to decide not to wait to see if violent language developed into action.

When law enforcement officials are concerned about a violent social media threat that has not led to any real-world action, that person will often get a knock on the door from the F.B.I. with a warning. But former officials have called the Capitol riot a “9/11 moment” for domestic violent extremism, a catalyzing event that has pushed local and federal resources around the country to focus on one top priority, with a much lower tolerance to wait and see if threats materialize.

Brian Miller was sworn in as Special Inspector General for Pandemic Recovery during a Senate Banking, Housing, and Urban Affairs Committee nomination hearing on Capitol Hill in Washington in May. 
Credit…Pool photo by Alex Wong

The Biden administration has moved aggressively to undo former President Donald J. Trump’s policies and dislodge his loyalists from positions on boards and civil-service jobs, but it has hesitated on a related choice: whether to remove two inspectors general appointed by Mr. Trump under a storm of partisan controversy.

At issue is whether the new administration will keep Eric Soskin, who was confirmed as the Transportation Department’s inspector general in December, and Brian D. Miller, a former Trump White House lawyer who was named earlier in 2020 to hunt for abuses in pandemic spending.

Both were confirmed over intense Democratic opposition after Mr. Trump fired or demoted a number of inspectors general last year, saying he had been treated “very unfairly” by them.

By ousting or sidelining inspectors general who were seen as investigating his administration aggressively, Mr. Trump undercut a longstanding tradition that presidents refrain from firing inspectors general without cause.

Mr. Trump also named inspectors general who were overwhelmingly opposed by Democrats — breaking with another tradition that nearly all inspectors general since Congress created the independent anti-corruption watchdog positions in 1978 were confirmed unanimously or by voice vote without recorded opposition.

The Biden team wants to repair what it sees as damage to the government wrought by Mr. Trump through his many violations of norms. It also wants to restore and reinforce those norms, according to people briefed on its internal deliberations about inspectors general dating back to the campaign and transition.

“It’s very possible — and it would be a real mistake — for the Biden people to remove those I.G.’s because they were appointed by Trump,” said Danielle Brian, the executive director of the Project on Government Oversight, a government watchdog group.

Ms. Brian was one of the few outside observers to call attention to a little-noticed push by Senator Mitch McConnell of Kentucky, then the majority leader, to get Mr. Soskin confirmed as the Transportation Department inspector general. The 48-to-47 vote to confirm Mr. Soskin made him the first such official to take office on a purely party-line clash.

The office Mr. Soskin now controls has been investigating whether Mr. Trump’s Transportation secretary, Elaine Chao, improperly steered grants to Kentucky as her husband, Mr. McConnell, was seeking re-election there. During the lame-duck session, Mr. McConnell used his power to prioritize getting Mr. Soskin confirmed over four other inspector general nominees who had been waiting for floor votes longer, raising the question of why he was trying to ensure that a Republican appointee would control that post even after Mr. Biden took office.

Earlier in the year, only one Democrat voted to confirm Mr. Miller, who had worked in the Trump White House. Others rejected him on the grounds that he was seen as too close to the Trump administration to aggressively hunt for waste or fraud in pandemic spending during an election year.

The Biden team appears not to have reached any decision about what, if anything, to do about Mr. Soskin and Mr. Miller.

Supporters of President Trump during a campaign rally at the Wilkes-Barre Scranton International Airport in Avoca, Pa., in November.
Credit…Doug Mills/The New York Times

Former President Donald J. Trump lost ground with every age group in the 2020 election compared to his performance in 2016, but he had his “greatest erosion with white voters, particularly white men,” according to an analysis by one of his campaign pollsters.

The 27-page report, by the Trump pollster Tony Fabrizio, focused on what he called ten key target states. Five of them — Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin — all flipped to President Biden after supporting Mr. Trump in 2016. Another five — Florida, Iowa, North Carolina, Ohio, and Texas — were held by Mr. Trump in both 2020 and 2016.

Mr. Fabrizio, who analyzed National Election Pool and Associated Press exit polls, also found that the bulk of independent voters broke for Mr. Biden. The analysis was first reported by Politico.

Mr. Trump’s handling of the coronavirus played a key role in why voters did not back him, Mr. Fabrizio found. The pollster and Mr. Trump’s former campaign manager, Brad Parscale, had urged Mr. Trump to take the virus more seriously earlier in 2020, and Mr. Fabrizio had pushed Mr. Trump to support some form of a national mask mandate. But Mr. Trump rejected the idea.

Mr. Fabrizio noted that Dr. Anthony S. Fauci, the infectious disease expert who Mr. Trump repeatedly attacked during the campaign, had a markedly higher job approval than Mr. Trump. Some 72 percent of voters who flipped their votes away from Mr. Trump supported the job that Dr. Fauci did on the coronavirus.

And very few late-breaking voters cast ballots for Mr. Trump. Most had settled on their candidate before October, the analysis found, meaning decisions made by the Trump campaign on how to allocate resources, including the president’s time, were of minor impact.

The analysis found that Mr. Trump gained support with Latino voters compared to 2016 while his support among Black voters was essentially unchanged.

It was not clear on Tuesday if Mr. Trump has read Mr. Fabrizio’s report.

President Trump had made the rollback of Obama-era fuel economy standards as the centerpiece of his deregulatory agenda.
Credit…Kendrick Brinson for The New York Times

WASHINGTON — Toyota, Fiat Chrysler and several other major automakers said Tuesday that they have dropped their support for a Trump-era lawsuit that sought to block California from setting its own strict fuel-economy standards, signaling that the auto industry is ready to work with President Biden to reduce climate-warming emissions.

The decision by the companies was widely expected, coming after General Motors dropped its support for the effort just weeks after the presidential election. But the shift may help the Biden administration move quickly to reinstate national fuel-efficiency standards that would control planet-warming auto pollution, this time with support from industry giants that fought such regulations for years.

The auto giants’ announcements come on top of a 2020 commitment by five other companies — Ford, Honda, BMW, Volkswagen and Volvo — that they would abide by California’s tough standards.

In a statement, the auto companies, represented by the industry group Coalition for Sustainable Automotive Regulation, wrote, “We are aligned with the Biden Administration’s goals to achieve year-over-year improvements in fuel economy standards that provide meaningful climate and national energy security benefits.”

They added, “In a gesture of good faith and to find a constructive path forward, the C.S.A.R. has decided to withdraw from this lawsuit in order to unify the auto industry behind a single national program with ambitious, achievable standards.”

President Trump had made the rollback of Obama-era fuel economy standards as the centerpiece of his deregulatory agenda. The Obama-era standards, which were modeled on California’s tough state-level standards, would have required auto companies to make and sell vehicles that reached an average fuel economy of about 54.5 miles per gallon by 2025. The standards, which would have eliminated about six billion tons of planet-warming carbon dioxide pollution over the lifetime of the vehicles, stood as the single largest federal policy ever enacted to reduce climate change.

The Trump administration last year rolled back that standard to about 40 miles per gallon by 2026 — a move which would have effectively allowed most of that carbon dioxide back in the atmosphere. California, however, reached a separate deal with the five automakers, in which they agreed to reach a standard of 51 miles per gallon by 2026. The Trump administration, backed by G.M. and other automakers, blocked California’s legal authority to set those standards.

Now that G.M., Toyota and Fiat Chrysler have dropped out of that lawsuit, Biden administration officials are expected to try to make that California deal the basis of a new federal standard.

But if other automakers follow G.M.’s pledge to phase out internal combustion engines by 2035, the whole concept of miles per gallon of gasoline or diesel fuel could soon be moot.

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