Nicholas Kristof and the indictment!

FRIDAY, MARCH 31, 2023

The way Others see the world: Quite recently, we praised the humanitarian values of Nicholas Kristof.

This morning, he pays us back with a slightly shaky overview of the indictment of Trump.

As Kristof starts, the wheels are still (largely) on the wagon. This is what he says:

KRISTOF (3/31/23): The Times reports that a grand jury has voted to indict Donald Trump for hush-money payments to a porn star but that the indictment, for now, is under seal. There are legitimate questions about this particular prosecution, and while we don’t know details of the charges, after educated guesses, we wonder:

Should the first indictment of an ex-president be under a novel legal theory that could be rejected by a judge or a jury? What do we make of the doubts about this case even among those who have zero sympathy for Trump? Does District Attorney Alvin Bragg know what he’s doing?

None of us can be sure of the answer to these questions until we’ve seen the evidence presented at trial, and I worry that a failed prosecution might strengthen Trump. Yet I’d also worry—even more—about the message of impunity that would be sent if prosecutors averted their eyes because the suspect was a former president.

As he starts, Kristof acknowledges a basic fact. We know that Trump has been indicted, but we still don't know what he's been indicted for. 

"We still don't know the details of the charges," Kristof correctly states. Before that, he says that Trump has been indicted "for hush-money payments to a porn star"—but by all accounts, there was nothing illegal about the payments themselves.

(As an aside, suppose this matter involved an accountant rather than a "porn star." How many capsule accounts of this matter would suddenly be a lot less thrilling?)

In his second paragraph, Kristof seems to assume that the indictment is based on "a novel legal theory." That may turn out to be true—but as he has already stated, we don't yet "know the details of the charges."

Citizens, can we talk? Is it possible that Kristof isn't thoroughly up to speed on this particular matter? 

In our view, he did superlative work during his recent trip to India. (Because his work was so superb, it has generated zero discussion.)

Has that journey left him under-informed about this high-profile matter? This is the way he proceeds:

KRISTOF (continuing directly): The former president’s fixer, Michael Cohen, was sentenced to three years in prison for doing Trump’s bidding, and a fundamental principle of justice is that if an agent is punished, then the principal should be as well. That is not always feasible, and it may be difficult to replicate what a federal prosecution achieved in Cohen’s case. But the aim should be justice, and this indictment honors that aim.

That’s particularly true because this is clearly a higher-stakes crime than a typical case of falsifying business records; the aim apparently was to affect the outcome of a presidential election, and that may have happened.

Oof! Right away, you see the suggestion that Cohen was sentenced to three years based on this particular matter, full stop. 

That of course is not accurate. But anyone watching blue tribe cable could understandably come away believing that talking point.

Our largest complaint involves that final paragraph. Kristof sees this as a relatively "higher-stakes crime" because "the aim apparently was to affect the outcome of a presidential election." 

Let's assume that's true. That is precisely why we think that a healthy society wouldn't want to see this matter as the source of a criminal charge.

Citizens, please! Consider this hypothetical scenario, in which we leave names out:

In 2006, Citizen A and Citizen B engage in consensual sexual relations on one (1) occasion. Ten years later, Citizen B is his party's nominee for president—and Citizen A decides that she can score some serious cash by publicly discussing this ten-year-old consensual event.

Our question: 

Given this scenario, does a rational, healthy society really want to reward Citizen A and charge Citizen B with a crime? 

In our view, a sane society would be strongly inclined to denounce Citizen A for her attempt to intrude on one of our allegedly sacred elections. 

But that would be in a sane society. In our society, tribunes of our own blue tribe quickly anointed Citizen A as a "feminist icon" and as a "feminist hero." Our "legal analysts" began looking for ways to charge Citizen B with a crime.

Back in 1992, Gennifer Flowers intruded on a presidential election with a highly implausible tale about her torrid twelve-year love affair with "my Bill"—with Candidate Clinton. (In a highly implausible book, she also told the world about what a giant lesbo Hillary Clinton was.)

Her tale was highly implausible, but so what? She walked away with at least $250,000 in cold hard cash, and she almost changed the course of American history.

As of 1999, Flowers was running a for-profit web site in which she was telling the world about the Clintons' many murders. In 2016, along came Citizen A, seeking to gain her own pile of cash based upon a thrilling tale about one (1) consensual encounter. 

A dirty little secret is floating around in this tale. It's a secret about who and what we the people actually are. 

This dirty little secret involves basic questions about how bright and upstanding we actually are—about the things we really care about.

Within our blue tribe, we've been posturing about the way we treasure "our democracy." Experts have told us to be very careful about such claims by multimillionaire cable TV stars.

Let's go a bit farther afield:

Back when Alvin Bragg didn't want to charge Trump with a crime, one of his deputies quit his job in a huff and wrote a book about the investigation, such as it was at the time.

We refer to Mark Pomerantz, author of People Versus Donald Trump. 

For a rather brief moment in time, the book made Pomerantz a blue tribe star. It included his account of the convoluted legal theory according to which he had urged Bragg to indict Trump.

Like so many prosecutors, Pomerantz seemed to know who he wanted indicted. He had then set out to fashion the crime by which his target could be charged.

For what it's worth, his own novel legal theory would have involved charging Citizen A with the crime of extortion. He received substantial pushback within the Bragg office. 

He refers to Daniels as Stephanie Clifford. Here's part of what he wrote:

POMERANTZ (pages 59-60): To me, the reservations that my new colleagues were expressing had no substance. Of course, extortion and blackmail cases often revolve around physical threats. Classic extortion cases involve loan-sharking and explicit threats to "break the knees" of the victim if he doesn't pay up. But extortion does not have to be hard-core to be illegal; soft-core extortion is also against the law, and involving lawyers and dressing up the conduct with a written nondisclosure agreement did not excuse the conduct in my mind. At bottom, the threat had been crystal clear: "If you don't pay me, I will tell everyone that we had sex." Under the New York Penal Law, this was a demand for money and an effort to instill a fear of public humiliation if the money was not paid. ...

Although I thought that a jury would likely find that extortion had taken place—Cohen said that Trump had referred to the whole thing as "a fucking blackmail"—I did what prosecutors typically do when there is a difference of opinion about a charging decision. We would go looking for more evidence.

We began the process of extracting more evidence from Clifford's lawyer, Keith Davidson. Davidson was a California lawyer who frequently represented clients who sought money from prominent individuals.

[...]

As things turned out, we never had to decide whether Clifford and her lawyer had committed the crime of extortion...Under New York law, the crime of "larceny by extortion" is complete only when the perpetrator actually obtains money by making a threat. 

We won't even try to describe the convoluted complications involved in the novel legal theory Pomerantz had concocted for the purpose of charging Donald J. Trump with a felony.  The whole thing gets very complex.

In our view, it's interesting to note the fact that Pomerantz thought that Daniels and her lawyer had in fact, at least on its face, committed the crime of extortion (blackmail). Perhaps for good reason, Bragg wasn't buying Pomerantz's novel approach, and certain arcane complexities of New York law made the strategy even more problematic than it had first appeared.

We'll suggest that you think about this in the following ways:

The question of extortion: On Fox, viewers have frequently been told that Daniels committed extortion / blackmail. On MSNBC, the possibility is never mentioned or discussed.

Because we now live in a news environment which is "segregated" by point of view, journalists from these two separate camps never have to puzzle this question out. 

One tribe is pleased to hear the claim that Daniels engaged in blackmail. The other tribe is pleased by the silence from its tribunes. Can a serious society really function this way?

The question of targeting: Pomerantz concocted a convoluted legal theory for the purpose of charging Trump with a crime. In his new posting, Kristof seems to assume that Bragg's indictment will also operate on the basis of a "novel legal theory."

That may or may not turn out to be true. If it does, can you see why red tribe members might be inclined to see this as a political prosecution? 

It isn't real hard for us to see that. Friends and neighbors, how hard is it for you?