Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Douglas Brinkley:

He is the only truly unthoughtful president we’ve had. He does not read, he doesn’t care. He has no pets, he has no empathy. He’s only about himself.

Preet Bharara:

That’s Douglas Brinkley. He’s a Professor of History at Rice University, a CNN Presidential Historian and one of the most trusted chroniclers of the presidency and the American experience. He’s written more than 20 books on subjects ranging from Theodore Roosevelt’s conservation legacy to Hurricane Katrina to Walter Cronkite. Brinkley has been one of the most visible historians pushing back against the Trump administration’s efforts to reshape how federal museums and historic sites present the American past.

We talk about why he believes we’re living in the era of peak presidential power, what Minneapolis revealed about the limits of executive authority, and why Trump’s series of miscalculations may be catching up to him now. Then I’ll answer your questions about what actually counts as a file in the so called Epstein files, and whether the president has the right to sue other people. That’s coming up, stay tuned.

Presidential historian Douglas Brinkley on executive power, the administration’s assault on history, and why Minneapolis may have been Trump’s Rubicon.

Douglas Brinkley, welcome back to the show. It’s great to have you.

Douglas Brinkley:

Really enjoy being back with you.

Preet Bharara:

I had not realized this on prior occasions you’ve been on the show, so it’s my bad, it’s our bad, unless this is a recent promotion of yours. Professor Brinkley, you are on many boards, but obviously the most important board on which you sit is the Bruce Springsteen Archives & Center for American Music. Am I correct that occupies 99% of your time?

Douglas Brinkley:

No, but boy, I sometimes feel like I’m listening to Bruce Springsteen 93% of my time. I play his music all the time, I’m a great fan.

Preet Bharara:

Do you have a favorite?

Douglas Brinkley:

I like some of the ones like Promised Land and Thunder Road.

Preet Bharara:

Thunder Road is my number one.

Douglas Brinkley:

Yeah, that’s probably my number one.

Preet Bharara:

I don’t know if you researched that to find common ground with the host, but yes, great choices.

Douglas Brinkley:

No, but we found common ground on it, and Running in the Streets I like a lot, but there’s so many. And of course, The Ghost of Tom Joad, Tom Morello on guitar, it’s quite awesome.

Preet Bharara:

Yeah. They don’t make songs that long anymore.

Douglas Brinkley:

I know. It’s the dying breed, but the opening of the Center this June is going to be epic because of the all sorts of bands-

Preet Bharara:

Oh my gosh.

Douglas Brinkley:

…from all over America coming there and really open the Center for American Popular Music. And of course, Bruce will be there every step of the way.

Preet Bharara:

So what does it entail to deal with those archives? I think Bruce still writes his songs longhand. Does he contribute his drafts to the archives?

Douglas Brinkley:

It’s a great question. He contributes all of his drafts to the archives. Anything he has with what he calls “my stuff,” he’s given us all this stuff. We do look for things that are also available, a lyric, a letter that might pop up on an auction house here or there, and it’s remarkable, and also tapes and getting pieces of other larger musicians’ archives there. It’s a very thoughtful and brilliantly done museum. And Monmouth University is the host of it. And you’re of course there-

Preet Bharara:

I know it well, I grew up nearby.

Douglas Brinkley:

What town did you grow up in?

Preet Bharara:

I grew up in a town called Eatontown, New Jersey.

Douglas Brinkley:

Yeah. My mom was from Perth Amboy, New Jersey.

Preet Bharara:

Oh, yeah. Yeah. That’s where you get the ferry from.

Douglas Brinkley:

Ferry from. But we would go to Asbury Park a lot when I was a kid. I remember seeing Count Basie playing just along the little boardwalk there with this orchestra.

Preet Bharara:

Oh my goodness.

Douglas Brinkley:

And Bruce, of course, as we all know, just jumped into the political fray.

Preet Bharara:

He did. You want to remind everybody what that was?

Douglas Brinkley:

Well, he wrote the song Streets of Minneapolis, and he did it really in an evening. Like all of us, he was very distraught by seeing what was going on with ICE in Minneapolis. And he wrote a ballad, which was turned into Killed into Martyrs, and then went and recorded it in a studio. It went to number one on Billboard, and he also then followed that up by going to Minneapolis and playing it. And I think that’s the first of a number of songs that you’re going to see, it’s Bruce Springsteen in resistance mode right now. And he learned well from people like Woody Guthrie and Bob Seger, Bob Dylan long ago, how to do that kind of song and have it take effect.

Preet Bharara:

I mean, you’re also on the board of the Woody Guthrie Center and the Bob Dylan Center.

Douglas Brinkley:

Those are my three.

Preet Bharara:

The trifecta for you. I should mention that I have been really, really fortunate enough to have met Bruce a few times. On one occasion, I brought my son who was at nine years old and an aspiring guitar player, and Bruce gave my son two guitar picks, so if you need those for the archive.

Douglas Brinkley:

Wow. That’s pretty nice.

Preet Bharara:

I will steal them back from my son. Oh no, it was terrific.

Douglas Brinkley:

He’s a very kind person, Bruce Springsteen. He gives a lot. The music musicians I know, Bruce Springsteen and Willie Nelson tend to just help their fans be with them. There’s really no attitude about it. For a star that large, both of them, Nelson and Springsteen, they’re so caring and giving, it’s special. It’s one of the reasons they’re both legends.

Preet Bharara:

Still, every concert, Bruce Springsteen collects money for the fight against hunger, which is a non-partisan, non-political or bipartisan issue. Let us lurch from Bruce Springsteen to a very similar kind of artist, at least similar in the sense that he’s a very popular rising star. Shall we, Mr. Brinkley, talk about Bad Bunny? Why is this a big deal? Can you explain the cultural divide in America that a very popular singer from within the United States, Puerto Rico in the United States caused controversy?

Douglas Brinkley:

The name Bad Bunny, it sounds like an older hip hop name for starters so immediately people of a certain generation will discount and I’m not listening to no Bad Bunny. In my day, we had Bob Seger in The Silver Bullet Band. There’s that kind of attitude, which sometimes is generational. But also Puerto Rico, many people don’t realize the history of Puerto Rico and how the United States acquired it in the Spanish-American War in 1898 and what it means to be in American territory and why it is us. There’s a movement to have it as a 51st state, but because it’s a Latino culture, Spanish speaking, it’s sometimes seen as something other than the United States. And Bad Bunny, when he racks up listeners all over the world, he has a gigantic following in Mexico, Central America, and all of Latin America, really everywhere in the world.

And he’s feuded with President Trump a number of times. There was a dislike of Trump when the hurricane hit Puerto Rico. And famously, Trump threw out those paper towels like clean up your own mess, as if these were somehow not true humans deserving of love and respect in their time of turmoil. And so Bad Bunny, he represents Puerto Rico and the Puerto Rican flag in the way saved Bob Marley once did for Jamaica. And the big lead up was President Trump announcing Bad Bunny’s pre-Super Bowl appearance, even getting Kid Rock to do an alternative concert.

Preet Bharara:

Yeah. How’d that work out?

Douglas Brinkley:

And then Governor Newsom calling it Bad Bunny Day in California. So it hit a political divide, and he just did fantastic. It was a great visual performance. It was a wonderful moment for Puerto Rico to bask in the sunshine of a Super Bowl. His voice sounded good, he sounded good, the choreography was awesome. So it was a big win, and anybody who was worried that he was the wrong choice in the end made fools of themselves.

Preet Bharara:

One of the smartest comments I heard someone make about this controversy over Bad Bunny was that, and I mentioned this to you before we hit the record button, if you’re inviting to the Super Bowl somebody who has literally the most downloads and most streaming counts on Spotify, over a billion for at least one song, that’s the safe choice. It’s not the radical commercial choice, it’s the safe choice.

Douglas Brinkley:

Absolutely. And look, whatever Bad Bunny is as an artist first and foremost, he has agents and managers and you don’t want to blow a Super Bowl gig. You want to do something that’s appropriate. So I thought the honoring of Puerto Rico was beautiful, and the children of Puerto Rico and what it would’ve meant Puerto Ricans. I was actually touched by it, and I thought it was one of the better Super Bowl performances of an artist that I’ve seen since Prince was alive.

Preet Bharara:

Oh gosh, yeah. That was one of the best ever, I think.

Douglas Brinkley:

Yeah, it was really good.

Preet Bharara:

There’s one more question on why this is important, if it is important, this divides over culture. I saw someone write the other day, and I don’t know if this is true, and then we’ll move on to presidential power, that a year ago or about a year ago, the vibe was that conservatives were capturing cultural dominance in the country, music, film, whatever, and that has reversed itself. A, do you think that’s true? B, why does it matter? It’s interesting to talk about, but does it matter?

Douglas Brinkley:

Very few things matter more than discussing American culture. And if there’s something that, I did my doctorate in US foreign policy diplomacy at Georgetown learning about all these other countries, but I think a lot of people in Washington and elsewhere need to learn about America itself because the good news is the American people are fantastic. I go from town to town. I’m writing a history of US Route 66 right now, which first paved road connecting Chicago to Santa Monica. In every little town you go, you meet these remarkably warm-hearted, intelligent, open-minded people. But invariably in every community there, you have your ranked bigots, you’ve got your troublemakers, you have people that are doing disruptive things on social media.

I think the musicians, the traveling, rock and rollers or musicians, they’re closer to the people because they’re small businesses in the end. A rock entity or a rock band, when they go from town to town, they’re almost like a mom and pop business. So they’re not part of a larger billionaire world by and large, and they have to look at the faces of their fans night after night after night. There’s a great connection between musicians and audiences. And you can go to a show, Lyle Lovett doing a country concert, or you could go see Taj Mahal while he’s still around. And it’s people that are there just so loving and embracing of everybody.

But more to the point, we are the country on culture of since the 19th and 20th, 21st centuries, amount of musical artists that come from America equal the number of great athletes we have in the Winter Olympics. I mean, they train and they’re our own and they’re from towns and we’ve got to embrace them because they bring so much joy, the music community to our country. And of course, Bob Weir, the Grateful Dead died. I went to a Dead concert many, and there was everybody there, children, older people, families, stoned out people, stone sober people. I mean, it was kind of a mix and they all got to share because they enjoyed hearing Ripple or Uncle John’s Band together and it brings out a tremendous feeling.

And the same reason I’m one of those people that immediately stands up when the national anthem comes on and on the heart. And I look all over and I see one person that’s not taking part in that ritual and that’s that person’s right. And I don’t mind if I see that person, but I’m more thinking about how many people have fallen into doing the national anthem as part of a ritual that enriches their baseball game or football game. News is bad news usually so we’re always looking at who’s doing something deviating or wrong, but most of the American people are trying to make a living and our culture is a part of what feeds the fun in their day, even no matter how hard times get.

Preet Bharara:

America The Beautiful sung by the extraordinary Brandi Carlile. I’m a huge Brandi Carlile fan. Brandi Carlile, for those of you who are in the New York area, is coming to Madison Square Garden this week. She didn’t pay me to do this. This is free for me. I will be there. I’ll be there with my wife and one of my sons.

Douglas Brinkley:

Oh, good. I’m glad you’re going.

Preet Bharara:

Brandi Carlile is fantastic. I thought she did an amazing job. Do you think she’ll sing America The Beautiful at MSG? Probably not.

Douglas Brinkley:

Probably not. But with that said, I am on the board of the Library of Congress, James Madison Council. We give the award the Gershwin Prize, George and Ira Gershwin, for songwriters, and we gave it to Joni Mitchell, appropriately so.

Preet Bharara:

Oh, great. Yeah.

Douglas Brinkley:

And Joni Mitchell came, but it was Brandi Carlile that sang Joni Mitchell songs and was interacting with her there, and you just, it was very memorable. And then I was asked by CBS News to weigh in on what four songs are the most important in America’s 250 years of history. That’s a tough question.

Preet Bharara:

Oh, goodness. What are they? I think we need to do an hour just on music and culture. This is so fun.

Douglas Brinkley:

All I will say after a lot of thinking is I did put America The Beautiful, the Ray Charles version as one of the four quintessential songs. It’s almost an impossible errand, but it was fun. And it actually got me thinking about Ray Charles and when he would sing America The Beautiful, it just knocked you down.

Preet Bharara:

Is the anthem on the list of four?

Douglas Brinkley:

Yes. Well, I don’t know what the winners are, I don’t know the winners, I just know mine.

Preet Bharara:

Oh, I see.

Douglas Brinkley:

I did not put the anthem because I knew everybody else was.

Preet Bharara:

So what about the importance, whether you put on the list or not of God Bless America, because This Land Is Your Land, Springsteen always sings, was an answer to God Bless America. Do you have any view on that controversy?

Douglas Brinkley:

I do. I’m on Team Woody.

Preet Bharara:

Yeah.

Douglas Brinkley:

Woody Guthrie wrote This Land Is Your Land. Some of his verses have been excised out, censored, full songs, quite amazing, but it’s a populous answer to God Bless America, which is a great song also.

Preet Bharara:

But now matters of consequence and the kinds of things that are in my actual wheelhouse, and certainly in your wheelhouse, presidential power. You said recently at a lecturer’s speech that we’re living in the time of peak presidential power. My question is, how do you measure that? What are the metrics and why is this so?

Douglas Brinkley:

Very good question. First off, you just have to read our founding documents and understand in Article II, I mean, we only give presidents so much power in our Constitution, but a lot of it is a hand down tradition. There was not a detailed job description for President of the United States. George Washington had to invent the role of presidential power. I mean, and Washington’s the one who established the cabinet for the first time. He’s the one who put us on the dollar for the first time. And he gave us what we would call today an executive order, which the big one was the Neutrality Act of that era, but he also had to use his power with the Whiskey Rebellion. And if you look at eight years of George Washington, it’s all about how is he defining mores and traditions and behaviors that future presidents would wean off of.

And EOs or executive orders were really not that important through the presidents up to the Civil War. He’d get one here, won there, and nothing very daunting because it was still power seemed to be in the hand of the Senate and Congress. This changes a lot in the Civil War because not only does Lincoln declare habeas corpus, but he, what some people colloquially will call executive order number one, the Emancipation Proclamation, liberating African Americans and slavery in the Confederate states, although Lincoln allowed slavery to continue in states that were neutral, Maryland, for example, but the emancipation is epic and you start seeing more presidential power, but it’s Theodore Roosevelt who blows up the Executive Branch to what it is today.

It’s even symbolic. The White House wasn’t called the White House till TR was in it. It used to be called the Executive Mansion. Roosevelt calls it the White House. He’s getting flummoxed by Congress and says, “Screw it. I’ll just use executive power. If Lincoln can liberate the slaves with executive power, I can save the Grand Canyon from being mined for zinc, asbestos, and copper,” for example. And you can just see the uptick where you’re getting now with TR hundreds of executive orders where prior to that, president got 10, 15, 20, that was a big deal.

And then it goes a whole nother step further with Franklin D. Roosevelt because when he was sworn in March of 1933 in the wheelchair, incapacitated when he gave the famous “we had nothing to fear but fear itself,” he had such control due to the stock market collapse of 1929. He had utter control of really Congress, Senate, Supreme Court by and large, and he went for it. I mean, Roosevelt just started signing-

Preet Bharara:

He sure did. Yeah, he sure did.

Douglas Brinkley:

Program after program and the flood of the New Deal programs, the Civilian Conservation Corps, the WPA, NRA, one could go on and on, TVA.

Preet Bharara:

And he had wide margins in both the House and the Senate, am I right?

Douglas Brinkley:

Yes, it was the closest you could get to a mandate, I mean, Reagan had that in 80 in presidential power terms, but FDO hard at all, and with the Depression and that what Hoover tried didn’t work, he pretty much had a blank check. And Roosevelt’s style was, he takes everything he has in his pocket and just throws it up against the wall to see what sticks.

Preet Bharara:

Right.

Douglas Brinkley:

That’s his governing style, and a lot of things stuck well and some did not, but he was not afraid to experiment. And meanwhile, he wins the second big election. He wins in ’32, then he wins again in ’36. But in early ’37, he decided the only thing stopping him from almost having a kind of authoritarian power was the Supreme Court that was shooting down some of his New Deal measures. So that’s that famous moment, I know Preet knows so well, but he tried to take the nine justices and make them 15.

Preet Bharara:

Pack the court.

Douglas Brinkley:

He tried to add six justices to the Supreme Court that would’ve been New Deal rubber stampers. The good news for our country is it was Roosevelt overreach, but the Democratic Party, particularly Southern Democratic senators said, “No, we have all four Franklin, but this is not good for the country. It’s not the way it should be,” and they reigned in FDR and his own party.

Preet Bharara:

But, here comes the but.

Douglas Brinkley:

Well, yeah, he got William O’Douglas in the Supreme Court at 37, and Douglas became a burr on a lot of people, a lot of Supreme Court for a long time, but he lost it. But after that, after FDR, president started being people talking about increased power of the executive. And for example, even the end of FDR, he’d used an executive order to do the Manhattan Project. Why was secret? Where’s the funding going? Where’s it being built in Hanover or at Hanover, Washington or Oak Ridge, Tennessee? Nobody knew and we’re pouring money into this executive order, but he also used an executive order to do Japanese internment camps.

The problem starts becoming with executive orders is if it’s something you like politically, you cheer on the president, and if you don’t like, you’re going to say it’s abuse of power. And this has continued after FDR, you see all these, I mean, we integrated the Armed Forces, Truman, with executive power. John F. Kennedy created the Peace Corps with an EO. It goes on and on and on, and it served us well until recently.

I think the big change was when President Obama was feeling that they couldn’t get the Affordable Care Act, he had just won the election. They wanted it badly. He had Pelosi in Congress, Harry Reid leading the Senate. And then he had an arm twist to finally get Senator Mary Landrieu of Louisiana, a couple others to close the deal. And he got that through and done with no Republicans. And he started feeling that the bipartisan consensus or the attempted bipartisanism had hit a dead end and the right created the Tea Party movement and Mitch McConnell said, “I’ll never do anything with Obama.”

We’ve been that polarized ever since to the point that a Democrat doesn’t want to be in a photo with Trump, and a Republican who doesn’t want to be in a photo with an Obama or Vice President Harris. And so we’re deeply divided.

Preet Bharara:

Right.

Douglas Brinkley:

And a lot of it is the Supreme Court now has given increased rights to presidential power. The most famous moment of Richard Nixon, incidentally, Nixon overreach caused the Republicans to turn on him like Barry Goldwater, Howard Baker and others. But the biggest thing Nixon ever said, I think, was on the BBC David Frost show when he told Frost eyeball to eyeball, “If the president does it, it’s legal.” If president does it must be legal. That’s what President Trump believes.

Preet Bharara:

Does power to one branch necessarily come at the expense of another branch? Is it necessarily the case that if a president sees his power or expands his power, that comes to the detriment of other branches?

Douglas Brinkley:

It’s a good question. I mean, what President Trump has going for him is the makeup of the Supreme Court. I mean, three of the justices were of his own choosing and then a long movement really led by the Heritage Foundation and Federalist Society and others to advance presidential power. And it’s all come to home to roost here in Trump’s second term. But I think the battle really goes back to the ’60s and that era of William O. Douglas and Thurgood Marshall and others in the courts.

But in the political specter, the Democrats or progressives were getting win after win after win. The regulators were getting the wins. They would regulate coal mining, regulate air quality, regulate what fertilizers or pesticides could be used. It became a regulatory long ’60s to the point that Richard Nixon pushes forward the Endangered Species Act and the Senate goes 92 to nothing in favor of the Endangered Species Act because the environmental movement, the last big gasp of big labor, Walter Reuther and the like, and academics mixed with the universities, mixed with the anti-war movement and civil rights movement, it had corporate America on its heels because they were being regulated.

And many companies don’t like the IRS looking at their books, but extraction companies don’t like being told they can’t do this or that. And out of those wins of the long ’60s, there became the reaction, which best articulated in a couple reports to the Chambers of Commerce and the like that said, “The left has just beat us for 40 years. We have to come and create our own TV network, get our own conservative speakers. We’re going to have to find ways to win over white Catholics on women’s issues like abortion.”

They have a plan that took some time to get to the point where you get a heritage 2025 project that Trump can largely implement. It didn’t happen overnight and it’s not about Donald Trump, it’s just was a reaction to the long ’60s where the wins were coming to progressives and now progressives are at best in a defensive posture trying to save the heirlooms of don’t touch Social Security, don’t touch Medicaid and Medicare, leave the Voting Rights Act alone kind of behavior by the Democrats. It’s defensive crouch where the right under Trump, under MAGA, even though his numbers aren’t high in the polls, are scoring historic victories of disassembling the federal government.

Preet Bharara:

I’ll be back with Douglas Brinkley after this.

Are individual members of Congress in a position of authority to, do they have the standing to blame an executive for taking action in areas where their own body has ceded authority and power over many, many decades?

Douglas Brinkley:

No, I don’t think they have much of a voice to complain because they’ve lost all credibility with the American people. You want to, for starters, look, we might say President Trump’s at 40%, but look at what Congress is: a 30%, 26% approval rating. Citizens united in the flooding of the money into our political system hasn’t been helpful. And Trump has had the discipline, the most disciplined human I’ve ever seen has the discipline to trash you on Truth Social or Twitter before that and try to destroy your career if you’re seen as a RINO Republican, if you’re not in lockstep with him 100%. So we’re really dealing with the Republican Party in fear. They’re in lockstep fear that Donald Trump’s going to say something mean and punish him.

And there are exceptions to that rule, but you can see Lisa Murkowski of Alaska stand up sometimes, certainly Massie of Kentucky and Rand Paul do their libertarian leanings, but it’s small business compared to if Trump does it, hallelujah. That’s where the Senates are in Congress.

And for the Democrats, they just don’t mobilize. They don’t pick. It’s a daily I hate Trump feeling, not able to say, “Let’s stick to one issue. Let’s go after A, B, or C in the foreign policy realm and put everything we have into challenging Trump’s bypassing of Congress.” It is an imperial president right now, it’s no doubt, but it’s scary because we’ve got the tech oracles with Trump and very few people can take on a consortium like that.

Preet Bharara:

On this question of ruthlessness, which is basically what you’re talking about on the part of Donald Trump, there have been ruthless presidents before. There’s one about whom a fellow historian has written a series of volumes that are of great repute, Robert Carroll, right? LBJ, I think, used to be the heavyweight champion, at least in modern history. How do you compare on this score, the ruthlessness of LBJ to Donald Trump?

Douglas Brinkley:

Well, Lyndon Johnson wanted to be bigger than FDR, so to speak, he was an effective workhorse as a senator in the ’50s, did wield a lot of power, was disliked. The Kennedys loathed LBJ, particularly Bobby Kennedy as Attorney General, but they went with Lyndon because they needed Texas in 1960. After Kennedy shot, Lyndon Johnson also had a blank slate. The Kennedy murder effect where to honor John F. Kennedy, we are going to do A, B, and C, but also his big victory over Barry Goldwater in 1964, so it allowed the great society to loom large. In his case, government was the answer to the solutions. Government was going to save our problems. And hence LBJ will do Medicaid and Medicare and wild and scenic rivers and national hiking trails and NPR.

Preet Bharara:

Where does the ruthlessness come in?

Douglas Brinkley:

The ruthlessness is arm twisting for votes stylistically. For starters, he would meet the person and look them and usually look down on them and break-

Preet Bharara:

Because he was a tall guy.

Douglas Brinkley:

… their spatial barrier. And yet, you could feel his breath and say, “You’re going to do this for me, aren’t you?” And he might call you boy, “And you’re going to do this for him, aren’t you, boy?” And slamming of the phones down. And the problem that he shares perhaps with Trump, suddenly nobody wanted to give Lyndon Johnson bad news.

On all of our document debates over Vietnam, only George Ball under Secretary of State would pipe up and criticize what was happening in Vietnam. He admired him for that, but it’s too late once Johnson brought in by ’68, he brought in Dean Acheson, ex-Secretary of State, and he brought in Clark Clifford, and they started telling him the truth, that you’re screwing up, you’re losing. And he couldn’t handle hearing now this sort of criticism, Lyndon Johnson.

And it fed into… I mean, Tet Offensive was the biggest thing in LBJ’s health, but Johnson did have the decency to not run for reelection in 1968 because he knew he had gotten America deep into the big muddy of Vietnam and was going to not put himself out there on the campaign trail. And you won’t see Donald Trump doing that. If anything, he’ll threaten a third term or cling to power more and more. Johnson knew how to give up power. Trump seems unable to, or at least isn’t indicating he knows how to practice that art.

Preet Bharara:

Trump inherits a very, very strong presidency the first time, so it’s already enlarged even from Johnson’s time, and it’s not big enough for him. The power is not broad enough for him. What is the law of politics that causes a president like Trump to finally get into overreach? Are we seeing that in Minnesota?

Douglas Brinkley:

Yes, in Minnesota. I would say the overreach began on day one. On day one, after he was inaugurated, he went into arena and just started scrolling and signing that big Donald J. Trump on executive order after executive order. The first one being the release of the January 6th insurrectionist. And then one after another. Now, what does that mean that he’s breaking records on executive orders right now? He’s smashing at FDR’s record and FDR was dealing with the Great Depression and then World War II. It means that some stick and some don’t. But look at the first Trump term, he did the Muslim ban. Well, the court said it’s illegal. And if you look right now, many of Trump’s executive orders are either been thrown out by the courts or in court, but others stick.

And some of these executive orders like changing of the Gulf of Mexico to the Gulf of America, the next president comes in, will go back to the Gulf of Mexico. So what Trump realizes is the theater of the executive order, that you sign your name big and it looks like you’re doing stuff. So you can be in the White House, but with television crews, he’s using it as a hotbox studio, the Oval Office, showing that every day he’s doing all of these executive orders and many are frivolous aimed at stoking culture wars. And yet, when does one hit the end on momentum on doing that? Where’s the Rubicon?

I think Minneapolis was. I say that because the scene of ICE shooting a woman in her face, just right, and to make a mealy mouth talk about that or to have Pam Bondi just offer a lot of BS about what happened when we all saw it and it made people sit up straight. It said, “This can’t be happening.” It did get somewhat under control eventually, Minneapolis, but remember Minneapolis is going to be echoing across the land right now. And it’s done great damage to ICE, the brand of ICE, to the point where I don’t know if ice can continue being named ICE because it’s carrying with it such a stigma at this point. Now, obviously it’d be best to just reform it and keep ICE and people’s memories are short. But at this juncture, no matter what it’s doing well, the public is seeing its overreach into their lives, and it seems to me that Trump miscalculated how brave people in Minnesota are in zero degree weathers standing up for their rights.

Preet Bharara:

Trump, I think whatever else you might say about him, almost uniquely had his pulse on the voting preferences and the grievances of a large number of people in the country. Lately, he seems to be missing the mark a bit in Minneapolis. And then on another issue in the last couple of days, we’re recording this on a Monday, on February 9th I think it is. And he had to pull down a social media post that was disgusting and racist. Is he miscalculating based on a loss of compass and tactical skill, or is the country growing weary and tired of his racism and his overreach? Who is changing: Trump or the public, or is it a combination of the two? Does that make sense?

Douglas Brinkley:

It does. It’s a great question and difficult to know definitively. There’s a series of blunders, Minneapolis, the Obama cartoon together. But where the blunders are coming off of Venezuela where they had a extraordinary military strike and the apprehension there. It was a flawlessly executed operation in Venezuela, whether we should have done and got Maduro that way or not, he could have pulled back and rested on that. That would intimidate China and Russia, just that we have the skill in the United States to do an extraction like that.

But he steps on it immediately with Greenland, kicking off NATO, saying dumb things about other world leaders and countries and fumbling into ICE in Minneapolis, fumbling into this Obama thing. And he dilutes whatever could have been seen as a moment of American can do-ism or American global security posture just gets diluted in my sense, a kind of deranged mind that he has where he has to own the news cycle every minute and you own it only by doing something more outrageous than the last outrageous thing, and that creates a kind of national sickness if we’re going to be trying to run our country in such a fashion.

And Trump minus Musk and Zuckerberg and Jeff Bezos and others would be a much lesser political creature. But the thought is that he has this group of billionaire, soon to be trillionaires surrounding him from the tech industry that were mainly from California that used to be Democrats, but they’re now with Trump because they want no guardrails on artificial intelligence and the like, that’s scary. And Trump trying to squelch freedom of speech against comedians like Jimmy Kimmel, or intimidate CBS News or demand payoffs to himself if you don’t adhere to what he wants to see on the airwaves. These are all directly out of authoritarian playbooks, and there is not a real authoritarian leader I’ve ever read about that wasn’t weird. By nature, they have all these weird-

Preet Bharara:

I haven’t thought of it that way.

Douglas Brinkley:

Yeah, they all have these crazy, they want a chimpanzee giving them lunch on a gold tray. I mean-

Preet Bharara:

How’s Trump weird? Like his germophobia or something else?

Douglas Brinkley:

Yeah, his germophobia, obsession with talking about himself, his desecrating of our national monuments of trying to whitewash history as if slavery wasn’t important and didn’t matter. I mean, the whole attitude out of Mar-a-Lago of doing Gatsby parties and gold while the economy is struggling and people are looking for meaningful employment and-

Preet Bharara:

Let them eat cake, Professor.

Douglas Brinkley:

Yeah.

Preet Bharara:

So something I’ve been ruminating over is the notion of thoughtfulness and whether or not that’s a quality. We care about what the quality is and whether we need or want it in our leaders. I think the public tends to reward what they view as decisiveness without knowledge of how much thought went into the decision-making. Strong but wrong often, but not always. Gut level instinct without too much paralysis from analysis, et cetera. What’s the role of thoughtfulness? What does it mean?

Douglas Brinkley:

Well, in the old days, thoughtfulness meter could have been read by your military service. Most American presidents had a military record, and hence they would get reports on how they acted in any given battlefield situation or struggling through a cold winter, and it appointed to who were the leaders. There’s also the tradition in that realm of partaking, meaning John F. Kennedy could have gotten out of state in a stateside desk in World War II, but Kennedy got on the PT-109 and showed that he was willing to give his life for his country.

Theodore Roosevelt charged up Kettle and San Juan Hill in the Spanish American War saying, “I’m going to go front and they’ll get me before they get my men.” And it demonstrated leadership on a battlefield in a very robust way. And of course we don’t have to, it’s obvious Ulysses at Scranton, and Dwight Eisenhower and others.

Preet Bharara:

But is that a point in favor of thoughtfulness or not or the opposite?

Douglas Brinkley:

I think it’s in favor of character. And then somebody with real character then becomes thoughtful because they’re thinking about the cost of human life. Eisenhower in World War II wouldn’t just sign letters of the dead. Anybody, Sunday, listen to Wagner or Bach, and he would read everybody who died and write a letter and sign it home to the parent imagining, the thoughtfulness and imagining the parent reading that you just lost your son here. And he knew it wasn’t numbers, it wasn’t an Autopen opportunity to get it over with. It was a deep reflection of the loss of American lives.

I think another aspect of thoughtfulness is just comes from the Bible. I mean, to be a Good Samaritan, to actually be a good neighbor, to give a helping hand to your communities in time of need, to recognize that we always have to look after people that are homeless or poor or have a mental illness or have issues that have to be addressed with a bit of sympathy and understanding and love, not just hatred because you’re a crack addict and you’re sitting on the street. And that’s hard on a lot of people and leaders. And then thoughtfulness, and the realm of reading and understanding.

I mean, FDR used to call, said that he wasn’t an intellectual, FDR. And Eleanor Roosevelt said, “Well, you don’t understand. My husband has a math mind.” That’s why he kept a globe around him. He can beat anybody on where the river was, where the port, everything Roosevelt. He was thoughtful about how the world functioned because he understood transportation systems and he also sent childhood collected stamps from around the world. So he had a thoughtful view of what it meant to be in the world, and you’re looking at the thoughtfulness of almost all the great presidents comes just driving home at you. And we all have to be thoughtful.

Preet Bharara:

Where do you put Trump on the, yes, of course, thoughtful citizenship?

Douglas Brinkley:

He is the only truly unthoughtful president we’ve had. He does not read. He doesn’t care. If at best, he does briefs and McNuggets. He has no pets. He has no empathy. He’s only about himself. And we could see it every day, whether it’s building an Arc of Triomphe for himself, whether it’s to run John F. Kennedy’s performing arts legacy to put Trump on it. He’s basically lobbying to get his face drilled onto Mount Rushmore. Some people might find it funny or it’s humor or it’s just part of Trump’s grandiosity, PT Barnum’s style, but it’s a sickness. That kind of narcissism of borderlines on being sociopathic when you’re trying to look at anything and say, “I’m going to put my name on it,” instead of letting people that have earned that reward keep it.

He wants to just, with recklessness, destroy our institutions in the United States because what’s in it for him? So he doesn’t mind seeing a wrecking ball to Interior Department or the National Park Service or the Smithsonian. Pick your place because it’s not Trumpized enough. They’re not selling enough of my gear in their gift shops. This is not a healthy way for any human to behave, let alone the leader of the free world.

Preet Bharara:

Do you think there’s an overall devaluation in that quality? Because what does it say that I think a lot of people voted for him, not despite his lack of thoughtfulness, but because of it?

Douglas Brinkley:

Yeah, and he was the middle finger first time around. People were tired, exhausted, feeling BS, and he seemed like the revenger, the middle finger. And now, there is a tediousness to him. He’s losing a lot of his outrage capacity, except when you see an adventure like Venezuela, or you watch a blockade of Cuba where the, with no oil, people die. It loses any sense of geostrategic thinking.

NATO, you would know better than anybody, very meticulously built into being this supreme part of our America’s global posture and to just try to go in and disunify NATO is so deeply unhealthy. And then people that like Trump will say, “Well, but they weren’t paying up enough money and they weren’t paying their dues, and it’s true.” And that part of Trump, in your face, here was what we expect was tolerable. But when you’re just going around on this whole Greenland bit and mocking all of our allies, it becomes an embarrassment.

JD Vance got, not only getting booed at the Olympics, wherever Trump goes, any stadium, he’d get booed. He said he didn’t go to the Super Bowl because he’s afraid of Bad Bunny. President’s afraid of a musician, Bad Bunny. I mean, come on. And he knows if he goes in there, it would be cavernous echoes of boos for him. So he can only even speak in America, places like an Army Navy game where you’re forced not to boo. And so he’s not a welcomed figure in America, but some of his novel ideas like bringing Indianapolis race cars to Washington, DC might meet with favor by the Americans. We won’t know until after we see it. He did a military parade on July 4th last year, and it came off all right. I mean, so maybe some of these things he’s doing for America 250 will be popular with the American public, but I know a boatload of them won’t be.

Preet Bharara:

JD Vance, I think it can be said was formerly thoughtful. And I don’t know if you lose that quality like you can lose your hair, or if it’s something you suppress or you transmogrify into some thoughtless shell of what you used to be. By the way, for those of us who are Springsteen fans to end where we began, as we always say, they’re not booing because they’re not. They’re saying bruise, right? Somebody said about JD Vance, “They’re not booing, they’re yelling JD.” I don’t even know if I understand the joke, but I found it very fun.

Douglas Brinkley:

Well, the joke is that I think JD Vance should, when Trump leaves, should be the leader of the Republican Party. He certainly has made inroads with the Charlie Kirk world and a lot of evangelicals, and that’s the big but. I think he’s a diminished vice president. He’s seen too much as a lackey, whereas Marco Rubio has probably grown in stature because he might be able to bring back… They’re playing the macho male aspect of life on the GOP, and Rubio does that. He has resilience. We know he’s smart, Senate operator, and he’s been able to really be the voice of sanity in much of the foreign policy of Trump. So keep your eye on Rubio and growing and Vance shrinking.

Preet Bharara:

Since you’re talking about 2028, a lot of talk in the last 24 hours about Jon Ossoff. Did you see his speech in Atlanta?

Douglas Brinkley:

I did. He’s somebody really a star to keep your eye on. I would have in the Democratic realm, look, we all know Gavin Newsom and I don’t need to get into that, but I mean, I would keep an eye on JB Pritzker of Illinois and Wes Moore of Maryland going to be in the mix for sure. There are going to be 15 or more Democrats probably seeking the Democratic nomination, and it’ll get whittled down after New Hampshire, South Carolina, and Nevada. And then the big prize of California, which could keep Newsom in the mix. I think Newsom will be one of the last two or three standing. But look, even the mayor of Minneapolis started, but people are talking about how well he handled himself in that moment of practice.

Preet Bharara:

Fifteen, I think you’re lowballing it, Professor.

Douglas Brinkley:

I am lowballing it.

Preet Bharara:

It could be a lot.

Douglas Brinkley:

I think it’s going to be more than 15, but I was thinking the money raised is going to be a lot.

Preet Bharara:

I can debate at a stadium.

Douglas Brinkley:

Pritzker can sell finance as he has billions, which I think it has to be looked at. But I feel Buttigieg has gone downwards and Kamala Harris has gone downwards. People are looking for a fresh face. Shapiro we can’t rule out. I mean, I think he could deliver Pennsylvania fairly easily for the Democrats.

Preet Bharara:

Rahm Emanuel was on the podcast talking about what he would do as president. What do you think of there?

Douglas Brinkley:

Rahm would be good. If the perfect world, Ram could be a very good president. I like him a lot, but he has baggage, so to speak. I think particularly from his time as Chicago where he was not embraced by the Black community there. And it would be very hard in South Carolina, which is going to matter, and Black primaries for Rahm to catch fire. So he’d have to pick up in Nevada and California. But Rahm as sharp as and tough as they come and I think would make a great president, a great realignment president. But with that many people in the mix, it might be hard for him to get his footing.

Preet Bharara:

I have about three more hours of stuff we could talk about. Douglas Brinkley, thanks so much for being with us. Really appreciate it.

Douglas Brinkley:

Thank you, I really appreciate it.

Preet Bharara:

My conversation with Douglas Brinkley continues from members of the CAFE Insider community. In the bonus for insiders, Doug and I discussed the pendulum swing in American politics, how Trump pieced together his unlikely coalition, and why he believes future presidential candidates will have to pass what he calls an authenticity test.

Douglas Brinkley:

People want to feel that somebody shoots from the hit and says what they mean and you can’t be too studied. The next Democrat, it just can’t be what the DNC wants.

Preet Bharara:

To try out the membership, head to cafe.com/insider. Again, that’s cafe.com/insider. After the break, I’ll answer your questions about what actually counts as a file in the so-called Epstein files and whether the president has the right to sue other people.

Now, let’s get to your questions.

This question comes in an email from Anne. “It’s my understanding that nobody can sue a sitting president because of the attention it would require for a president to deal with lawsuits. So why can a president initiate one lawsuit after another against the press and the latest against JP Morgan Chase? Doesn’t pursuing lawsuits grab attention as well? Why the legal one-way street?”

Well, Anne, thanks for your question. It is actually not true that the president can’t be sued, we’ll get back to that in a moment. But part of the answer to your question lies in a couple of Supreme Court cases that draw a line between what a president does in an official capacity and what, if anything, a president does as a private citizen.

There’s a case called Nixon v. Fitzgerald from 1982 in which the Supreme Court held that the president of the US has absolute immunity from civil damages liability for acts taken within the, this is important, outer perimeter of official presidential responsibility. So if he’s doing what is part of his job, he has absolute immunity even from civil suits. The court’s basic rationale was practical. It reasoned that the president alone carries the full weight of the Executive Branch. The president sits at the top of the Executive Branch and can’t really offload ultimate responsibility. Because of that, the court found ordinary litigation burdens such as depositions, discovery, and trial prep pose a unique problem of interfering with decision making.

As the court put it back then, “The president’s unique status under the Constitution distinguishes him from other executive officials.” Therefore, that’s a reason why from time to time say that our solemn pronouncement no one is above the law isn’t completely and fully accurate.

Importantly, however, Nixon v. Fitzgerald did not grant president’s immunity for unofficial acts, so acts taken as a private citizen or conduct that occurred before becoming president. We found out whether a sitting president can be sued for those kinds of actions in a later Supreme Court case, maybe you remember it, Clinton v. Jones in 1997. In that case, former Arkansas state employee Paula Jones filed a sexual harassment suit against President Bill Clinton for alleged conduct that predated his presidency. Clinton asserted, based on some of the things that you said in your question, that he could not be sued because he was a sitting president. Supreme Court disagreed. In a unanimous decision, in fact, the justice has held that a sitting president does not have immunity from civil litigation arising out of conduct unrelated to official duties, and that such lawsuits can proceed even while he’s in office, even while he’s the commander-in-chief, et cetera.

So the law doesn’t give presidents a one-way street so much as it draws a line. If the claim is about official presidential acts, the president has very strong protection. But if it’s about private conduct, the president can be sued like anyone else. The same distinction helps explain why a president can file lawsuits. When a president sues a private person or a company in a defamation case, for example, although it’s unusual in fact downright rare, he is usually acting officially under the law as a private citizen. He’s asserting private legal rights, not exercising official presidential power, and there is no constitutional rule that prohibits a president from doing so, even if the lawsuits lack merit.

This question comes in an email from Dennis. “I keep hearing about all the Epstein files and how many there are. What exactly constitutes a file? In my lizard brain, it could be in many different things.”

Dennis, there are lots of reasons why I love this question, and your lizard brain is exactly right. In a criminal case like the Epstein case, a file or a document can mean a lot of different things, and sometimes the reporting is confusing on this point. Part of the confusion comes from a distinction between what we mean by a file, and what we mean by a document. The Justice Department defines a criminal case file as, “All records maintained for the purpose of litigating or otherwise resolving criminal cases or matters handled by US Attorney’s offices.”

So a case file meant in that way refers to a collection of documents and records and they can add up fast. A case file can include emails, witness statements, FBI agent interview summaries, lab and forensic reports, search warrant applications, evidence exhibits like photos or videos, grand jury transcripts, discovery materials, and a whole lot more. Basically, if a document is created or collected in connection with the case, it gets memorialized in the “case file.”

Now, the Epstein case file or files are on an entirely different level in both scope and size because there’s not just one case. As DOJ has attempted to comply with the Epstein Files Transparency Act, we’re starting to see just how enormous it is. As of January 30th, the department had released more than 3.5 million pages of documents, along with over 2,000 videos and roughly 180,000 images.

Why is it so big? For starters, as I mentioned, the Epstein files don’t come from a single investigation or a single prosecutor’s office. They spend multiple US Attorney’s offices, multiple investigations over the course of more than two decades. In a press release, the Justice Department said the files were drawn from five primary sources. The investigations in SDNY, the Southern District of Florida, a separate case involving a former Epstein butler, the investigation into Epstein’s death, an officer of the Inspector General investigation of that death, and the prosecution of Ghislaine Maxwell. So that’s a lot of stuff and a lot of files.

It sounds like a lot has been produced, but there is still a great deal the public has not been allowed to see. And of course, many people have pointed out something especially troubling. While the names of many alleged co-conspirators remain redacted, the names and identifying details of victims have sometimes been left exposed. In a joint statement, a group of Epstein’s survivors put it this way, “This latest release of Jeffrey Epstein files is being sold as transparency, but what it actually does is expose survivors. Once again, survivors are having their names and identifying information exposed while the men who abused us remain hidden and protected.”

The survivors went on to say that, “The Justice Department cannot claim it is finished releasing files until every legally required document is released and every abuser and enabler is fully exposed.” I hope the Justice Department, the White House, and the Congress listen very carefully to what those survivors are saying.

So folks, to end the show today, I just want to say something on both a personal and I guess public note. You may have been following the story over the last few months involving six sitting duly elected members of Congress, four members of the House of Representatives, and two United States Senators, Mark Kelly and Elissa Slotkin, who had the temerity to make a video that lasted 90 seconds, in which they reminded people, the general public and members of the military, that it was their duty and obligation, as it has always been from time immemorial, not to follow unlawful orders. Simple statement, true statement, uncontroversial statement, incontrovertible statement. It’s a statement that has been supported and endorsed by no other than the sitting Attorney General of the United States before she became the AG, also the Defense Secretary, and also Solicitor General of the United States.

Nevertheless, the six Democratic members of Congress, as you may have been reading, have been subject to investigation out of the US Attorney’s Office in the District of Columbia. On Tuesday evening of this week, much to the surprise of a lot of people. Prosecutors in DC sought an indictment against those six members of Congress. What was the result? As is become increasingly the case, a grand jury of ordinary citizens in the District of Columbia rejected this overreach and reportedly voted down the indictment.

I mention this, A, because it’s an important thing for the public to understand the kind of ways that Donald Trump is trying to bring us into autocracy, to try to send to prison on his own order and his own direction duly elected members of a co-equal branch of government. That’s the kind of thing you see in banana republics. Many cases we talk about on this program, I’m looking at and observing at some remove.

I actually was involved in this one. It has been my honor and privilege to represent Senator Slotkin in this inquiry. Let me read to you what she had to say after yesterday’s events. “Today, US Attorney Jeanine Pirro attempted to persuade a grand jury to indict me. This was in response to me organizing a 90-second video that simply quoted the law. Pirro did this at the direction of President Trump who said repeatedly that I should be investigated, arrested, and hanged for sedition. Today, it was a grand jury of anonymous American citizens who upheld the rule of law and determined this case should not proceed. Hopefully, this ends this politicized investigation for good.”

I don’t know that it will. You’ll remember that the Trump administration has tried multiple times to indict New York Attorney General Letitia James. So we’ll see, and we’ll keep fighting for what is correct, and what is fair, and what is just. I will just point out that in earlier times, the direct attempt of a sitting President of the United States to imprison based on nothing at all, six members of Congress of the opposing party would’ve been a presidency-ending event and at a minimum would’ve been wall-to-wall coverage on every station. That that is not the case here tells us how far we’ve come, and not in a good way.

One final point, if we’re talking about prerogatives and immunities of members of Congress, as I tweeted last night, I’m old enough to remember certain senators flipping out because a couple of days of their toll records were lawfully obtained in a legit investigation by Special Counsel Jack Smith. Where are they now?

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Douglas Brinkley. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. You can reach me on Twitter or Bluesky @PreetBharara with the hashtag #AskPreet. You can also call and leave me a message at (833) 997-7338. That’s (833) 99-PREET, or you can send an email to letters@cafe.com. Stay Tuned is now on Substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That’s staytuned.substack.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The deputy editor is Celine Rohr. The supervising producer is Jake Kaplan. The lead editorial producer is Jennifer Indig. The associate producer is Claudia Hernández. The video producer is Nat Weiner. The senior audio producer is Matthew Billy, and the marketing manager is Liana Greenway. Our music is by Andrew Dost. Special thanks to Torrey Paquette and Adam Harris. I’m your host, Preet Bharara. As always, Stay Tuned.