As the witness broke omertà

There were historical echoes in that hearing room last week.

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.

Also perhaps any consumer of popular movies and tv shows would recognize the broad plot outline, even if Joseph Valachi didn’t come to mind.

And it’s had that overtone all along – the story is packed to the rafters with prosecutors, serving and former; packed with feds, packed with rats and stool pigeons, packed with a mob boss and his filthy hangers-on.

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.

Andrew McCabe was talking about “predicates” the other week; it was a new term to me. The Trump takeover has been an unwanted education in organized crime for me.

Prosecutors weren’t sure how to use RICO at first but then they got the hang of it.

[B]y 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.

And now he’s working for an upstart mob family that has stolen the entire federal government. How did we get here?

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.

RICO was designed to include the people at the top who don’t issue criminal instructions, but who also don’t have to because they use a code that everyone understands.

Exactly, it appears, as Mr. Trump did at the top of his family business: “Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates,” Mr. Cohen said. Mr. Trump, Mr. Cohen said, “doesn’t give orders. He speaks in code. And I understand that code.”

What’s notable about Mr. Cohen’s comments is how they paint a consistent (and credible) pattern of Mr. Trump’s behavior: The former F.B.I. director James Comey, in testimony nearly two years ago in the wake of his firing, made almost exactly the same point and used almost exactly the same language. Mr. Trump never directly ordered him to drop the Flynn investigation, Mr. Comey said, but he made it all too clear what he wanted — the president isolated Mr. Comey, with no other ears around, and then said he hoped Mr. Comey “can let this go.” As Mr. Comey said, “I took it as, this is what he wants me to do.”

Only…you’re not supposed to use the code when you’re talking to a fed. Not unless you know for sure he’s dirty. Trump seems to have been kind of confused about that part.

He also does it to all of us, of course, on Twitter every day – but again, that could end up biting him. I certainly hope so.

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