“Our fragile 249-year-old experiment”
May 29, 2024
Opening thoughts: Our role in telling the story of Trump's crimes and corruption
The closing arguments in Trump's New York election interference trial finished late Tuesday evening. The logical force and detail of the closing arguments mirrored the respective strengths and weaknesses of the prosecution and defense cases. An impartial jury applying the law to the facts should convict Trump. As cable news commentators reminded viewers at least 1,256,328 times, all it takes for a mistrial is for one juror to refuse to convict. That truism applies to every criminal case so that risk is not unique to this case.
However, the consequences of a mistrial in this case are unique because of what Trump will do if the jury fails to reach a verdict. Anything less than a conviction will be touted as an “exoneration” by Trump. A mistrial is not “exoneration.” A jury can come to one of three conclusions: Guilty—requires unanimity, all 12 jurors. Not Guilty—requires unanimity, all 12 jurors. No verdict—a split jury.
If the jury does not reach a unanimous verdict, the sting of truth and the overwhelming weight of the evidence will remain. While we have strong reason to anticipate a guilty verdict, the point of the trial is not to affect the outcome of the election. It is to hold Trump accountable. And there is a measure of accountability in a public trial that illuminates Trump's corruption and criminality regardless of the outcome.
The public is entitled to a fair trial of the charges against Trump, nothing more. The jury’s verdict is beyond our control. The judgment of history is not. Each of us must bear witness to the story of Trump's effort to interfere in the 2016 election.
Observations on closing argument
Donald Trump is not going to pay his lawyer, Todd Blanche, whatever amounts are outstanding on Trump's bill. Todd Blanche not only failed to rise to the occasion, he stumbled through a closing argument that left everyone more confused than they were at the beginning of his remarks. Worse, he created openings for the prosecution that were exploited to dramatic effect. See Business Insider, In a baffling closing argument, Trump attorney Todd Blanche used DA's evidence against his own client.
Worst of all, Blanche engaged in improper argument, telling the jury, “You cannot send somebody to prison based on what Michael Cohen is saying.” Such arguments are improper because the question of the defendant’s sentence is left to the judge—not the jury. Judge Merchan (again) scolded Todd Blanche for his lack of professionalism and ethics. Everything Trump touches dies, including the reputations of his lawyers.
Judge Merchan admonished Blanche,
That was outrageous, Mr. Blanche. Someone who's been a prosecutor as long as you have, and a defense lawyer as long as you have, knows it's highly inappropriate. It's simply not allowed. Period.
Judge Merchan gave the jury curative instructions, telling them that Blanche's argument was “improper” and that they should disregard it.
Judge Merchan was correct—Blanche acted intentionally, attempting to prejudice the jury by making arguments he knew to be improper. The curative instruction notwithstanding, Trump cheats in everything he does. And he drags his lawyers into the gutter with him. That is a message that was not likely lost on the jury.
The prosecution’s closing argument exceeded four hours and kept the jury in the courtroom until 8:00 pm. While many commentators criticized the prosecution for presenting a lengthy closing, the jury agreed to stay later in one-hour increments. They wanted the trial to be over so they can commence their deliberations.
As in the opening, the prosecution was professional and meticulous in its closing arguments. There was too much evidence to be covered in this newsletter, but the prosecution spent much of its argument defending Michael Cohen’s testimony and highlighting the evidence the defense failed to address in its closing.
In particular, the prosecution failed to address Alan Weissenberg’s handwritten notes documenting the reimbursement to Michael Cohen for the hush-money payment to Stormy Daniels. Blanche simply ignored it. There is, therefore, no doubt that the jury will believe the payment was a reimbursement to Michael Cohen—which was later disguised as payment for legal fees. That is the core of the case.
The only other point the prosecution must convince the jury of is that Trump directed the effort to mischaracterize the payment to Cohen. At trial, Cohen testified that Trump was advised of and approved the plan. That should be sufficient to convict Trump.
But—for the 1,256,329th time—all it takes is for one juror to refuse to deliberate in good faith. But that risk is out of our control, so let’s not waste time worrying
Whatever happens, the judgment of history will be that Trump paid $130,000 to Stormy Daniels in the final weeks of the 2016 campaign to conceal a sexual encounter after the firestorm over the Access Hollywood tape. Trump then directed the falsification of corporate records to conceal the true nature of the payment—all to protect Trump's electoral prospects in 2016.
What’s happening in the national defense documents case in Florida?
Judge Aileen Cannon is again exhibiting blatant bias in favor of Donald Trump in the Florida national defense documents case. Although her newest ruling is outrageous, special prosecutor Jack Smith is boxing her in—and will ultimately obtain the relief he seeks.
What happened? Last week, Trump posted a false and inflammatory statement claiming that President Biden authorized the FBI to “shoot to kill” Donald Trump during the execution of the search warrants at Mar-a-Lago. That statement endangers the lives of the FBI agents and prosecutors who obtained and executed the search warrants. See The Hill, Garland calls Trump’s false FBI search claim ‘extremely dangerous’.
The prosecutors in the national defense documents case then filed a request for a gag order, asking for Judge Cannon to order “that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case.” See Motion to Modify Conditions of Release – #581 in United States v. Trump.
Judge Cannon denied the motion on the flimsiest of grounds—i.e., that Jack Smith should have made a more fulsome effort to obtain Trump's consent to the gag order before filing his motion. Jack Smith will now hold lengthier and equally unproductive meetings with Trump's counsel seeking his consent to the gag order. Smith will refile the motion when Trump's counsel fails to grant that consent.
If Judge Cannon fails to enter an order “that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case,” the 11th Circuit will remove her from the case on a petition by Jack Smith.
Yes, this is maddening. Trump has succeeded in corrupting a significant portion of the judiciary. Some, but not all. Judge Cannon will be held to account for her transparent bias. It may take a while, but her behavior is a disgrace to the federal judiciary and will not be ignored.
DNC to nominate Joe Biden early to ensure his presence on Ohio ballot
If you have been worrying about the GOP effort in Ohio to keep Joe Biden off the November ballot, the DNC is working on a procedural fix that will solve the problem. See Newsweek, Democrats Change Convention to Help Joe Biden. (“The Democratic National Committee (DNC) said Tuesday it will hold a virtual roll call to choose President Joe Biden as the Democratic nominee ahead of the party's convention, a move to ensure that Biden can meet a deadline to appear on the Ohio ballot.”)
Ken Burns’ commencement address at Brandeis
Dozens of readers recommended Ken Burns’ commencement speech at Brandeis University. It is a wonderful, timely speech by a preeminent historian. I highly recommend watching or reading the speech. See Video of Ken Burns 2024 Commencement Address | Brandeis (21:30 in length) or Text of Ken Burns 2024 Commencement Address | Brandeis.
Burns said,
[I]f I have learned anything over those years, it's that there's only “us.” There is no “them.” And whenever someone suggests to you, whomever it may be in your life that there's a “them,” run away. “Othering” is the simplistic binary way to make and identify enemies, but it is also the surest way to your own self imprisonment, which brings me to a moment I've dreaded [because it] forces me to suspend my longstanding attempt at neutrality.
There is no real choice this November. There is only the perpetuation, however flawed and feeble you might perceive it, of our fragile 249-year-old experiment or the entropy that will engulf and destroy us if we take the other route. [¶]
The presumptive Republican nominee is the opioid of all opioids, an easy cure for what some believe is the solution to our myriad pains and problems. When in fact, with him, you end up re-enslaved with an even bigger problem, a worse affliction and addiction, “a bigger delusion” [and] our national suicide as Mr. Lincoln prophesies[d].
Do not be seduced by easy equalization. There is nothing equal about this equation. We are at an existential crossroads in our political and civic lives. This is a choice that could not be clearer.
Opportunities for Reader Engagement
If you live in Los Angeles, here is a fun opportunity to connect with Swing Left West Valley and meet Politics Girl Leigh McGowan on Sunday, June 2 at 5:00 pm Pacific.
Swing Left West Valley is kicking off their annual Swing Left Summer Sundays letter/postcard writing series with PoliticsGirl (Leigh McGowan) as our featured guest speaker. We will have yummy food and wine to enjoy as we write Vote Forward letters and campaign postcards. Kids are welcome!
When: Sunday, June 2, 5:00 – 7:00 PM
Where: Lake Balboa, CA. (in the San Fernando Valley). (Address on sign up form.)
Why: Saving Democracy is more fun with friends! And, we have inspiring speakers throughout the summer to educate and motivate our incredible group of volunteers!
Sign Up Link: Swing Left West Valley Summer Sundays
Concluding Thoughts
Don’t overinterpret the outcome of the Trump election interference case in Manhattan. A guilty verdict will not hurt his candidacy. Similarly, a hung jury will not help him win. People have made up their minds about Trump.
Anyone likely to be persuaded by the charges that Trump paid hush money to influence the 2016 election has already made up their minds. Don’t believe anyone who says a conviction will make a difference in their vote. If they haven’t made up their minds based on the irrefutable evidence produced in the trial, the fact that twelve jurors believe he is guilty adds nothing to the overwhelming evidence of guilt established by the prosecution.
The trial matters because it represents accountability and defense of the rule of law. It is not about politics. Voting is about politics. Convincing others to vote is about politics. Reproductive liberty, voting rights, LGBTQ rights, marriage equality, climate change, student debt, free speech, a fair judiciary, international alliances, and national security are about politics. Don’t conflate the trial and the issues on the ballot in 2024.
Waiting for a jury to return a verdict is always hard. Fortunately, we have plenty of work to keep our minds focused on preserving “our fragile 249-year-old experiment.” Let’s do that—while we let the jury do its job.
Stay strong! We have every reason to be confident but no reason to be complacent!
Talk to you tomorrow!
Photo of reader meeting in Washington, D.C., taken over Memorial Day weekend. Thanks to Susan and Mike for hosting!
As always, many thanks for your clear-eyed presentation today, Robert. I'd like to add to your comments regarding the election interference case as it comes to a close by highlighting the remarks of columnist Jennifer Rubin who named Judge Juan Merchan her Distinguished Person of the Week. She wrote, in part:
"...you had to marvel at Merchan’s success in conducting an orderly, relatively swift and, in some sense, straightforward trial in the midst of the mayhem Trump creates. Merchan forced a former president to (more or less) stop threatening witnesses and court personnel. He managed to impanel an impartial jury, keep the trial on schedule, deflect inane defense arguments and yet allow both sides to put on their case. This is the rule of law at its best.
"In short, whatever the verdict, Merchan succeeded in protecting our criminal justice system. No wonder Trump detested him, smeared him with a racist insinuation and attacked the judge’s daughter. What Trump could not do was provoke a mistrial or throw the case off course. And for that, America owes a debt of gratitude to Merchan."
So, this came over on Facebook but it really made me think. “If you can’t enlist in the military if you have a felony conviction then why does that not apply to the presidency?