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?


  1. tl;dr

    Whoa, dear Bob, you sound really excited.

    ...but Kristof, Nicholas Kristof, really? "Honorary cat-lady", as incomparable James Howard Kunstler incomparably calls him? Jeez, what a waste of time...

  2. The second amendment is evil.

  3. Yep, we don’t know the details of the
    indictment yet. Sure hasn’t stopped Bob
    from forming some firm opinions!!!
    Totally predictable, “scripted” ones
    as Bob would say.

  4. "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."

    This is an excessively literal reading of that sentence. Kristof is stating the context, the situation in which the charges have arisen, not saying that Trump is literally being charged for the hush money payments themselves.

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

    When no one else knows the exact charges, why pick on Kristof? He is probably as "up to speed" as anyone can be at this point. This is what Somerby sounds like when he wants to cast a shadow on someone but doesn't really have the goods.

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

    Actually, Kristof says the three years were for "doing Trump's bidding". That encompasses more than just Stormy's NDA. So, no, I don't think Somerby's charge against Kristof sticks, no matter how hard he wants to keep pushing it.

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

    Somerby entirely leaves out that the crime was NOT the consensual sex, and NOT the payoff to sign an NDA, it was the cover up of money laundering of the payment through Michael Cohen's shell company, reimbursed by a fake legal services agreement, to avoid reporting the payment as an FEC campaign contribution, and certainly faking the entries in the books of those organizations. That was the crime.

    I get it that Somerby thinks Stormy IS a crime, and that he thinks she blackmailed Trump, but that isn't what this is about. Leaving out the details of Trump's actual crimes and Michael Cohen's part in them, is massively dishonest.

    If there is any chance that (1) Melania might have left Trump because of the incident (back when it happened), causing him to be divorced and perhaps affecting his election outcome, or (2) the public disgust, however slight, might have affected his election outcome, then the coverup benefitted his campaign and Cohen's services should have been regarded as in service to the campaign, not Trump personally, which would make this also an unreported campaign contribution by Cohen. That is the complication.

    That makes Somerby's question hugely disingenuous because no one is being rewarded or punished for having that sexual tryst. It is all about the actual crime that emerged from Trump's desire to hide his actions from his wife and voters. Should Trump be rewarded for committing fraud in order to get elected? I don't think so.

    1. anon 5:54 - you make TDH's point - that this isn't about "hush money." Kristof and the media in general characterize the case against our ex-president using the term "hush money." that is misleading, and that's what TDH is saying (multiple times). TDH's whole point is that the charges will not be because it's not abhout the tryst. Now you do state the theory that he falsified records to conceal a payment that in effect was an illegal campaign contribution. That seems to be a stretch. Leaves open that this is a political prosecution. To assess the validity of it, you have to see what he is actually charged with, what the relevant stature says, and what the precedents, and what and how strong the evidence is.

    2. It is about false business records in service of a felony, such as election fraud.

      No one is characterizing the case itself as hush money. The case is the false business records. Somerby is trying to confuse the matter by pretending it has anything at all to do with Stormy or Trump's adultery. It is about the cover up. Cohen's shell company, the fake notations for legal services and the money laundering. It is about not reporting Cohen's donation of $130,000 used to pay Stormy to the FEC, as required, during the election.

      The clue to what this is about is in the name of the crime. It is not extortion. It is business record fraud. The only question is about what ELSE it is about and what makes a misdemeanor into a felony.

      I don't understand why this should be so difficult for you to understand, given that you claim to be an attorney yourself and this has been well-described everywhere except here -- where Somerby wants to throw dirt in our faces and tell us right-wing lies.

    3. AC/MA is not a lawyer, not a Dem, is a right winger, makes extremely bad analysis of legal issues, will lie to try to win arguments, is a simpering Somerby fanboy; having said all that, which, I know, is blatantly obvious to all, we can appreciate his call to not fall for the Republican talking points that Somerby repeats on this matter and patiently wait for a public announcement on the indictments. Or on the indications. What AC is saying is, hey for all we know Bragg has a strong case, maybe even an airtight case on some of the 30 indictments, so let’s not jump to repeating the right wing nonsense until we know something concrete.

    4. I can dig it.

    5. anon 7:29, you're quite the brainiac aren't you.

  8. "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 don't know that there was ever a time when Bragg didn't want to charge Trump. We only have Pomerantz's side of the situation. He is not exactly an objective observer. For all we know, Bragg wanted to indict Trump and Pomerantz quit in a huff and wrote a book in order to impeach Bragg and discredit anything further coming out of his office. Or maybe this is all to sell Pomerantz's book and has next to nothing to do with Bragg's intentions, then or now.

    1. anon 5:37, for all we know Pomerantz is telling the truth. For all we know, that's the case with everything we read or are told. I would say that the passage from Pomerantz's book that TDH quotes is confusing - it seems that Pomerantz wanted to charge Clifford with extortion (really, if anything, it was blackmail). It's not clear how charging Clifford with extortion would somehow support a criminal case against Trump. I assume the book explains this somehow.

    2. Really, if anything, it is NOT blackmail unless you believe the version of facts told by Trump. On what planet would anyone believe a word coming out of that lying mouth?

      I think the main reason for disbelieving Pomerantz is that the right wing is supporting his version. The right has a very poor track record when it comes to telling the truth about anything lately.

      I think you should buy multiple copies of Pomerantz's book. Then read the whole thing. It is perhaps the best use of your time and money -- it will keep you from donating cash to more right wing candidates and keep you off the streets.

    3. AC/MA - I'll pass on that suggestion. By the way, AI've never donated anything to any right wing candidate - you sound like Trump, making claims with no basis.

    4. Trump outright lied. He is still doing it. I can believe you are a cheap or penniless Republican.

    5. anon 6:48, my point about blackmail was that if anything it was blackmail, not extortion. Look the definitions of the two up in Black's Law Dictionary for example. I wasn't trying to take a side3, or to support the indicted ex-POTUS.To an inordinate degree, there is a wide gap between what the ex-prez says and what is actual. I'm not a republican, instead am a registered democrat.

    6. You’re not a lawyer, you’re not a registered democrat, you are a right winger, you are a Somerby fanboy, which is why, even if you were to comment that the sky is blue, nobody is going to take anything you say seriously. I think you’re actually well aware of this.

  9. "At bottom, the threat had been crystal clear: "If you don't pay me, I will tell everyone that we had sex."

    The problem is that according to Stormy Daniels, she never made such a demand to Trump. She was not talking to him at all, but told a version of her encounter with Trump on a talk show, as she has every right to do. Trump then sent two goons who approached her in a parking law and threatened her if she did not sign a nondisclosure agreement in exchange for $130K. She was frightened so she did it. Later, she regretted doing so and sued to have the NDA, signed under duress, removed. The only tit-for-tat came from Trump, not Stormy Daniels. Her testimony has been under oath. We all know that Trump lies bigly. Yet Somerby chooses to believe Trump (and Pomerantz).

    Given Trump's track record, why would Somerby accept his lies?

    1. If Stormy Daniels had committed extortion she would have been put in jail a long time ago. This isn't rocket science and Trump was not powerless during the years he was in office.

    2. "On Fox, viewers have frequently been told that Daniels committed extortion / blackmail."

      The question is why a supposed liberal would parrot a version of this situation pimped on Fox News.

    3. Yes, and what an insultingly foolish notion that Justice, at this point, should be in anyway guided by what the sad souls who watch Fox are led to believe.

    4. 6:08,

      one answer is that the jury will be told the same thing: that Trump was being blackmailed and trying to protect his marriage. And if one out of 12 has their vote thereby influenced, then Trump gets acquitted.

    5. 11:12: So? One assumes Bragg has thought of that, and will present convincing evidence to convict. Otherwise, the jury will either find Trump innocent, or end up a hung jury. That’s… the way jury trials work.

    6. And by the way, one holdout juror does not mean acquittal. It would more likely result in a hung jury.

  10. "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? "

    Red tribe members do not need any convoluted legal theories to inspire them to claim that Trump is being prosecuted for political reasons. There is no prosecution that wouldn't be viewed that way, Trump being Trump.

    There is no way to prosecute Trump for actual provable crimes that wouldn't be viewed that way.

    I can imagine a situation where Pomerantz wanted to pursue his convoluted prosecution, Bragg said, "no, that is too convoluted to convince a jury, let's wait until we have something more solid and easier to understand," Pomerantz refusing to wait because of his need for cash and a quicker book release date, and quitting in a huff to provoke greater interest in his book. That fits the facts better than Somerby's version.

    And just look at the current collusion between Somerby, the Red Tribe, Fox News, and Pomerantz these days.

  11. Bob has a kinda sorta point about the jeering in the
    left media about the sexy time fun the press is having
    with Stormy. But on balance it can't help but remind me
    of the Press's ugly and ridiculous, and deeply pandering
    love affair with the truly rancid Jaunita Broaddrick over
    the last five or six years. This horrible, habitual liar
    was used as a cudgel to beat Bill Clinton with an
    appalling childishness until the Atlantic finally noticed
    She was a rape victim who seemed to like to disparage
    and ridicule other rape victims, strictly along Political
    lines. Bob just sat there and took it!! Or, maybe
    enjoyed it.

    1. The right wing press might have had a love affair with Juanita Broaddrick but the mainstream press didn't. Her charges were reported on, but not dwelled on.

  12. Begala points out that Cohen was prosecuted under Trump by attorneys Trump appointed. If Cohen is guilty so is Trump. So how can this be a politically motivated prosecution? Also, he says the case is not that complicated.

    1. New reports are saying the exact opposite.

    2. Yes. there is disinformation.

  13. What if both Stormy and Donald are lying?

    1. How would that change the false business records concerning payments to Cohen? Cohen had Trump recorded.

  14. To be clear, Pomerantz did not resign simply because Bragg refused to indict Trump in the Stormy Daniels case last year. He resigned because Bragg, at the time, thought there was not enough evidence to charge Trump himself with more substantial crimes in connection with the Trump Organization’s “15 year 'scheme to defraud' the government, conspiracy, and falsifying business records.” Here is what Pomerantz said when interviewed by NPR’s Dave Davies in February of this year:

    “DAVE DAVIES: Any insight as to why the DA's office now might be focusing on the Stormy Daniels hush money payment as they go to the grand jury?

    POMERANTZ: No, it's a good question. To my knowledge, I don't think the underlying facts have changed with respect to the hush money payment or the reimbursement or the false documents that were created in connection with the reimbursement. I do want to say, though, that it's not that the hush money case was not serious enough to charge. It was that we didn't want to charge it and run the risk of misdemeanor treatment when we had more substantial felony charges to present. We would have charged the hush money case along with the other charges.”

    1. This comment has been removed by the author.

    2. “Late last year, Bragg's office won a conviction of the Trump Organization on charges of orchestrating a 15-year tax fraud, his office's biggest trial victory to date. Trump personally was not charged in the case.”

  15. Democrats have to be careful what they ask for because this could backfire on them.

    1. Or not. This is about justice, not advantages or liabilities to Dems. Worrying about gain or backfiring would be political prosecution. Republicans don’t understand that.

    2. Truth is sometimes you have to toe the fascism line in order to avoid the “backfire”.

      Or maybe we allow some integrity to percolate through our society and push back against right wing corruption and fascism.

      Darn, 9:22, you had me for a sec.

    3. That’s what crooks like Trump always count on….

    4. Many people feel differently.

    5. It could come across as politically motivated.

    6. Ignoring the crimes of a guilty person can be seen as politically motivated too. That’s why we have Courts to establish truth.

    7. Political motives can be good.

  16. Trump has threatened attorney generals, judges and prosecutors in the past. People have been hurt because of his threats.

    This week he attacked Justice Merchan; the presiding judge for the indictment and the trial. Justice Merchan could respond to Trump's threats by denying Trump bail and by disallowing Trump from being held under house arrest. Instead, to protect the Court and to protect the people of New York, Justice Merchan could remand Trump to jail starting from Tuesday's arraignment until the trial's end.

    That's what the law allows. That'd be the right thing to do.