How RICO — the racketeering statute used to bring down mob bosses — could ultimately seal Trump's fate

Kerry Eleveld
and
Daily Kos
March 07, 2019 | 09:26AM ETTrump

The sheer depth and breadth of crimes Donald Trump and his extended network have been implicated in is mind-boggling to most Americans. But the extensive malfeasance is also emblematic of the very type of criminal enterprises federal prosecutors confront in mafia cases, where a large number of distinct crimes are all committed to the benefit of the person or persons sitting atop the enterprise.

As Robert Mueller biographer Garrett Graff noted in the New York Times, last week's testimony from former Trump fixer Michael Cohen less resembled the 1973 Watergate hearings than it did "the mobster Joseph Valachi turning on the Cosa Nostra, circa 1963."

The Cosa Nostra was a highly organized crime syndicate originating in Sicily, Italy, and the Valachi hearings ultimately led to the creation of one of the nation's most sweeping and powerful prosecutorial laws, the Racketeer Influenced and Corrupt Organizations Act, or RICO. RICO finally gave prosecutors the tools to stitch crimes together ranging from murder to money laundering to obstruction of justice in one case. Importantly, it also allowed mob bosses to be held accountable for crimes their underlings committed, even if they didn't explicitly direct their underlings to commit those crimes.

Michael Cohen alluded to these type of cryptic communications several times last week in his congressional testimony. “Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates," Cohen explained, describing their interactions concerning a Moscow real estate deal. Instead, Cohen said, "he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing. In his way, he was telling me to lie." At another juncture, Cohen told lawmakers Trump "speaks in a code, and I understand the code, because I've been around him for a decade."

But that wasn't the only part of Cohen's testimony that suggested RICO might apply to the numerous allegations facing Trump. First, the lying was ubiquitous. "Every day, most of us knew we were coming in and we were going to lie for him on something. And that became the norm," Cohen said. Second, Trump had a handle on everything. "There was nothing that happened at the Trump Organization … that did not go through Mr. Trump with his approval and sign-off." Third, the crimes were diverse and sprawling, including the potentiality of bank fraud, insurance fraud, tax fraud, charity fraud, campaign finance violations, suborning perjury, and more—all coming to light within a single day of testimony. The crimes might appear to be separate and somewhat unrelated, but they were all in service of one entity: Trump. In that way, the whole crime is greater than the sum of its parts. Classic RICO.

Former FBI Assistant Director Frank Figliuzzi told MSNBC's Nicolle Wallace Tuesday that the first time RICO really clicked for him was while he was watching the Cohen hearing.

"We're finally starting to see public discussion of what undoubtedly has been discussed in the hallways of the Southern District of New York, FBI New York, and probably in Washington as well," Figliuzzi noted. "While we're all thinking, boy, this sounds like a mob family, the lawyers and agents are saying, there's a tool for this. There's a way we address mob families and organizations, and it's called RICO."

Figliuzzi explained that prosecuting every single crime committed by a crime organization is both unwieldy and somewhat useless because it fails to reach the person at the top. "If you charge the underlings and they don't talk because they use the omertà code—the code of silence ... then you may never get him," Figliuzzi said. "So RICO says, look, all of this together is much larger than the individual parts, and there's a leader behind this, and that's what RICO's designed to do."

After watching Cohen's testimony, Figliuzzi said he would be "surprised" if at least some prosecutors weren't "seriously" approaching the Trump investigation as a RICO case. The perfect paradox of using RICO to dismantle Trump’s network is the fact that Trump lawyer Rudy Giuliani was one of the prosecutors credited with pioneering use of the law by the Southern District in the '80s, bringing down a handful of New York's biggest crime families.

For the last couple of years, commentators have compared Trump's behaviors and his use of words like "rat" to those of a mob boss. Top law enforcement officials who have tangled with Trump, such as former FBI chiefs James Comey and Andrew McCabe, have made similar inferences.

In his book A Higher Loyalty: Truth, Lies, and Leadership, Comey wrote that working for Trump gave him “flashbacks to my earlier career as a prosecutor against the Mob. The silent circle of assent. The boss in complete control. The loyalty oaths. The us-versus-them worldview. The lying about all things, large and small, in service to some code of loyalty that put the organization above morality and above the truth.”

McCabe, who similarly had experience prosecuting Russian organized-crime rings, has observed that Mueller's approach to investigating Trump tracks how one would go about investigating a crime ring. "There are a lot of patterns in what Director Mueller is doing that are very familiar to me," McCabe told The Atlantic's Natasha Bertrand. "You can certainly look at what Mueller’s done so far to say he is doing exactly what we would do with the investigation of a cartel or an organized-crime family."

There's a reason Trump's entire enterprise has so often drawn comparisons to organized crime, and there's also a specific remedy for those crimes.

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