Douglas Brinkley's Strange Case for Trump's Conviction
Note: 2017 was the year following, not preceding, 2016.
I watch CBS Sunday morning regularly, fast forwarding through the parts I don’t like. It started by my recording the whole thing so that I could get the beautiful 40- to 50-second nature shot at the end. But bit by bit, I found other things valuable. Even when I don’t find certain political parts valuable for their information, which is often, I get a good read on how mainstream media people often think about issues.
Yesterday morning, historian Douglas Brinkley hit a new low in his commentary on the Trump verdict.
Here’s how he led. This is word for word:
Two years shy of this country’s 250th birthday, twelve New York jurors have convicted former president Donald Trump on 34 counts of falsifying business records in an attempt to influence the outcome of the 2016 presidential election.
Do you see a major problem here? You do if you’ve followed the trial fairly closely, as I have. (You’re welcome.)
Whoever falsified the records, even if it was Trump, did so in 2017. You can’t influence the 2016 election with actions you take in 2017.
Brinkley goes on to wax eloquent about our country’s rule of law. (He spends none of the rest of his commentary discussing the details of the Trump trial, other than to claim that Trump had a fair trial.) It is true that what would make this country even greater is if prosecutors went after powerful people who violated laws. So, for example, I wrote in 2009 that President Obama was wrong for letting former president George W. Bush off the hook.
But you can’t seriously make the claim that the Trump trial was about the rule of law when the judge allowed the prosecutor to make allegations about what the federal election law says without allowing the defense to call as a witness someone who could say how the federal election laws work and how the Federal Election Commission would regard Trump’s actions. Judge Merchan did allow former FEC chairman Bradley Smith to testify. But Merchan made it clear that Smith could not talk about the important relevant details. So there was no reason for the defense to call Smith as a witness.
There are bad arguments against putting Trump on trial. Trump’s daughter-in-law Lara Trump made one of them on Fox News Channel. She stated that it was wrong to try a former president. Implicit in her statement was the idea that former presidents have some immunity that the rest of us don’t have.
Her argument reminds me of a bad argument many basketball analysts make about my favorite Golden State Warrior, Steph Curry. Curry gets knocked around a lot and doesn’t get the same frequency of calls against those who foul him as other top players do. So some analysts say that Steph is enough of a star that he should be getting those calls. NO. NO. NO. The reason Steph should be getting those calls is that he gets knocked around a lot. Period. Anyone, star or not, who's knocked around should be getting those calls.
The good arguments that Lara Trump should have made are the arguments that people like George Washington University law professor Jonathan Turley makes.
For more detail on my point, see Jacob Sullum’s excellent article on this: “The Prosecution’s Story About Trump Featured Several Logically Impossible Claims,” Reason, May 31, 2024. Here are his first 2 paragraphs:
Last January, Manhattan District Attorney Alvin Bragg summed up his case against Donald Trump this way: "We allege falsification of business records to the end of keeping information away from the electorate. It's an election interference case."
That gloss made no sense, because the records at the center of the case—11 invoices, 11 checks, and 12 ledger entries that allegedly were aimed at disguising a hush-money reimbursement as payment for legal services—were produced after the 2016 presidential election. At that point, Michael Cohen, Trump's lawyer, had already paid porn star Stormy Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump, and Trump had already been elected. The prosecution's case against Trump, which a jury found persuasive enough to convict him on all 34 counts yesterday, was peppered with temporal puzzles like this one.
David, I think you were wrong in 2009. While I certainly agree that no person is above the law, our country has benefitted greatly from the tradition that the winners of elections do not prosecute the losers except in unusual circumstances. Obama honored that tradition in 2009, and Trump honored it in 2016, even though Hillary Clinton's use of a private, unsecured e-mail system to communicate classified information was a much clearer crime than anything Bush or Trump did. They both were correct. Democracy cannot function if losing candidates believe that defeat means not just losing office, but also their property and perhaps their freedom. Good people will not run (we have already basically accomplished that), and bad people will not concede elections they lose.
If Trump had walked down Fifth Avenue and murdered somebody, that would be unusual circumstances. That would be a clear violation of the law and a major crime. Watergate probably qualified as well. You can argue that Trump's effort to overturn the election constituted "unusual circumstances", and it certainly was a major event in our history and a violation of constitutional norms observed by all of Trump's predecessors. But was it a crime? I have read the DC indictment, and if Trump's actions were clearly criminal, the indictment would be much stronger than it is. I have not read the Georgia indictment, so I cannot comment on that case.
But both New York cases, Leticia James's attempt to bankruptcy Trump and Alvin Bragg's attempt to jail him, do not involve unusual circumstances. Both involve unprecedented uses of laws enacted for unrelated purposes by elected officials who campaigned on promises to "get Trump". These cases are clear, unquestioned abuses of power, and exactly the kind of cases that poison democracy by telling anybody involved in politics that if you lose an election your property and freedom are at stake. [If I were a conservative in New York and interested in running for office, I would definitely think twice.] Democrats and progressives seem to think that "because Trump" is a good enough reason to throw out tradition to try to prevent Trump from being re-elected. But they are wrong, have likely given Trump a material boost in his campaign, and at the same time have established a precedent that will come back to bite them or other Democrats.
Nice. Thanks David. You're a braver man than me, watching CBS.