How Giuliani Might Take Down Trump

Any onetime Mafia investigator who listened to the Trump “fixer” Michael Cohen testify Wednesday would have immediately recognized the congressional hearing’s historical analogue — what America witnessed on Capitol Hill wasn’t so much John Dean turning on President Richard Nixon, circa 1973; it was the mobster Joseph Valachi turning on the Cosa Nostra, circa 1963.

The Valachi hearings, led by Senator John McClellan of Arkansas, opened the country’s eyes for the first time to the Mafia, as the witness broke “omertà”the code of silence — to speak in public about “this thing of ours,” Cosa Nostra. He explained just how “organized” organized crime actually was — with soldiers, capos, godfathers and even the “Commission,” the governing body of the various Mafia families.

Fighting the Mafia posed a uniquely hard challenge for investigators. Mafia families were involved in numerous distinct crimes and schemes, over yearslong periods, all for the clear benefit of its leadership, but those very leaders were tough to prosecute because they were rarely involved in the day-to-day crime. They spoke in their own code, rarely directly ordering a lieutenant to do something illegal, but instead offering oblique instructions or expressing general wishes that their lieutenants simply knew how to translate into action.

Those explosive — and arresting — hearings led to the 1970 passage of the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, a law designed to allow prosecutors to go after enterprises that engaged in extended, organized criminality. RICO laid out certain “predicate” crimes — those that prosecutors could use to stitch together evidence of a corrupt organization and then go after everyone involved in the organization as part of an organized conspiracy. While the headline-grabbing RICO “predicates” were violent crimes like murder, kidnapping, arson and robbery, the statute also focused on crimes like fraud, obstruction of justice, money laundering and even aiding or abetting illegal immigration.

It took prosecutors a while to figure out how to use RICO effectively, but by the mid-1980s, federal investigators in the Southern District of New York were hitting their stride under none other than the crusading United States attorney Rudy Giuliani, who as the head of the Southern District brought charges in 1985 against the heads of the city’s five dominant Mafia families.

Ever since, S.D.N.Y. prosecutors and F.B.I. agents have been the nation’s gold standard in RICO prosecutions — a fact that makes clear precisely why, after Mr. Cohen’s testimony, President Trump’s greatest legal jeopardy may not be in the investigation by the special counsel, Robert Mueller.

What lawmakers heard Wednesday sounded a lot like a racketeering enterprise: an organization with a few key players and numerous overlapping crimes — not just one conspiracy, but many. Even leaving aside any questions about the Mueller investigation and the 2016 campaign, Mr. Cohen leveled allegations that sounded like bank fraud, charity fraud and tax fraud, as well as hints of insurance fraud, obstruction of justice and suborning perjury.

The parallels between the Mafia and the Trump Organization are more than we might like to admit: After all, Mr. Cohen was labeled a “rat” by President Trump last year for agreeing to cooperate with investigators; interestingly, in the language of crime, “rats” generally aren’t seen as liars. They’re “rats” precisely because they turn state’s evidence and tell the truth, spilling the secrets of a criminal organization.

 

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