When news broke that Donald Trump’s longtime lawyer and fixer, Michael Cohen, was under criminal investigation, several people close to him told The New York Times that Trump considered that probe a bigger threat to him than Robert Mueller’s investigation into Russia. Those fears may prove justified. According to a former federal prosecutor, Trump and his real estate empire may want to brace themselves for racketeering charges.
Glenn Kirschner spent almost a quarter-century at the U. S. Attorney’s office in Washington–probably the second-most prestigious billet for a federal prosecutor, behind the Southern District of New York. He was known as the “King of Cooperators” for his ability to get defendants to flip. Suffice to say that he knows what it takes to build the kind of complex case that are a federal prosecutor’s bread and butter.
That’s why anyone close to Trump should have been very afraid when Kirschner sat down with MSNBC’s Chuck Todd on Friday. Kirschner suggested that SDNY may have enough evidence to rack up Trump and the Trump Organization for racketeering. Watch here.
When Todd asked Kirschner whether Trump should fear Mueller or St. Andrew’s Plaza more, Kirschner said that there was no real way to “parcel out” the potential legal peril for Trump. He did, however, suggest that SDNY is seriously looking at “whether they may be dealing with a potential RICO case–racketeer influenced corrupt organizations.”
For those who don’t know, under RICO, anyone who commits two of 27 federal and eight state crimes within a ten-year period in order to further the interests of a criminal “enterprise” can be charged with racketeering. Convictions can carry fines of $25,000 and up to 20 years in prison per count.
Kirschner frequently tried RICO cases during his long career as a federal prosecutor. He noted that in order to prove a RICO case, you have to prove the existence of a “hierarchy.” To his mind, the Trump Organization is the very definition of a hierarchy, since “you have one person, who by all accounts is at the top, and nothing happens with out his say-so.”
That led Todd to wonder if Trump was facing some sort of sealed indictment. After all, Cohen has already pled guilty, and longtime Trump Organization CFO Allen Weisselberg and National Enquirer impresario David Pecker have taken limited immunity deals related to the hush payments to Trump mistresses Stormy Daniels and Karen McDougal. To Todd’s mind, that left Trump as the only remaining participant in such an “enterprise.”
Kirschner believes that the longstanding internal Justice Department policy that bars indicting a sitting president needs to be revisited. He claimed that under that policy, there would be no recourse if an impeached president were to bribe enough Senators to stave off conviction and removal. He wondered if SDNY was either going to pull the trigger, or simply get permission from Attorney General William Barr to seek a sealed indictment that would be unsealed until after Trump left office.
Todd suspected that Weisselberg would be a key part of any potential RICO case, saying that he has “the keys to the kingdom.” This makes sense. As much as Cohen may know about Trump’s shady deals, Weisselberg has spent four decades with the Trump Organization. Moreover, he and Donald Trump Jr. serve as trustees for the Trump empire during Donald Sr.’s presidency, making them the only people in the world who know the true details of Donald Sr.’s finances.
Kirschner seemed to agree, saying that an old law enforcement cliche holds that “the bookkeeper” is usually key to taking down a criminal organization. He believes that SDNY should “seriously consider” granting complete immunity to Weisselberg in order to get to the bottom of “the criminal shenanigans of the Trump Organization.”
If the feds do indeed pursue racketeering charges, they have the potential to inflict severe financial hurt on Trump with just an indictment. Under RICO, prosecutors have the option of forcing a defendant to post a performance bond in lieu of having its assets frozen. This provision was put in place because the mob had a long history of absconding with the funds of companies it controlled. When RICO was drafted in the 1970s, its authors wanted to make sure there was something to seize in the event of a conviction. Since a RICO performance bond would take precedence over all other debt, banks will not extend credit to any business under a RICO indictment.
Given what we know about the Trump Organization’s ramshackle finances, a RICO indictment could potentially cripple it, if not destroy it altogether. That means that if it does turn out that there is something to the talk about racketeering charges, there will likely be a stampede of guilty pleas. One recent parallel is that of Michael Vick, who pleaded guilty in part because of the prospect of being RICO’d for his dog fighting operation.
The beauty of this? If Kirschner is telling the truth, this case is being pursued by an office led by a prosecutor appointed by Trump himself. That alone would knock down any 280-character whining about any RICO case being a “WITCH HUNT!”
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