Rudy’s RICO Comeuppance

After being sentenced to one hundred years in prison for his racketeering conviction as head of the Genovese organized crime family, Anthony Salerno penned a letter to a newspaper columnist who had expressed alarm about the powerful law that prosecutor Rudy Giuliani had used in the case.

“Roy Cohn, my former attorney, always stated that you were an honorable man,” Salerno wrote to columnist Murray Kempton in 1987. Kempton, a Pulitzer Prize winner who’d battled the likes of Cohn during the McCarthy era, had written a column headlined “If RICO Wins, We Lose,” noting various ways the Racketeer Influenced and Corruption Organization Act (RICO) of 1970 let prosecutors circumvent traditional civil-liberties protections. “It is a plaything for frustrated drama actors such as U.S. Attorney Giuliani,” Salerno wrote. “History repeatedly shows us that a government that relies on unprincipled abuses of authority and dubious laws has a tendency to snowball into worse scenarios.”

In other words: What goes around, comes around.

No one did more than Giuliani to expand creative prosecutorial uses of the RICO law—and now, along with eighteen others including former president Donald Trump, he has been charged with a conspiracy to overturn the results of a lawful election in Georgia under Georgia’s racketeering law, which is patterned after the federal statute. Throughout the 1980s—first as the number-three official in the U.S. Justice Department, and then during his high-flying years as the U.S. attorney for the Southern District of New York—Giuliani pushed RICO further and further, until federal judges in New York began to criticize his cases. By then, Giuliani had already moved on to run for mayor of New York City.

The RICO law received little attention when President Richard Nixon approved it as part of the Organized Crime Control Act of 1970, which toughened criminal laws in many ways. RICO empowered prosecutors to charge defendants with playing roles in a broadly defined criminal “enterprise.” To convict a defendant, a jury must find his or her participation in “a pattern of racketeering,” based on at least two underlying criminal acts committed over ten years. It was assumed that the law was for prosecuting gangsters. Eight years after RICO passed, the New York Times still referred to it as “an obscure 1970 Federal statute.” But, the paper added, federal authorities were beginning to make use of its flexibility to go after white-collar suspects in fraud cases.

During the 1980s, Giuliani pushed it hard. RICO makes it possible for prosecutors to freeze the defendants’ assets even before a trial so that the money is on-hand for the government to collect triple damages upon conviction—and Giuliani advocated freezing even the money defendants needed to pay for lawyers. A Giuliani RICO indictment forced the investment firm Princeton/Newport Partners to go out of business after its assets were frozen; an appeals court later overturned the conviction of six partners, finding the indictment went too far in stretching tax charges in racketeering acts. Likewise, the investment banker Drexel Burnham Lambert caved to the possibility of a Giuliani RICO case to plead guilty to other felony charges.

Gradually, Manhattan federal judges began to rein in Giuliani’s tactics. One of the big concerns was the prejudicial spillover effect of charging so many defendants in one case. For example, a federal appeals court reversed the conviction of a Midwestern pizza man in the “Pizza Connection” narcotics-racketeering trial. A federal appeals court found in 1989 that there wasn’t evidence to justify the conviction of Joe Trupiano. He sat through a seventeen-month trial as one of twenty-two defendants but faced just twenty minutes’ worth of evidence—and was clearly swept up by the damaging evidence against co-defendants. Trupiano, whom I visited at his pizza place in little Olney, Illinois, was always very minor at most. But in an interview on ABC’s Nightline after he announced the heroin-trafficking charges in 1984, Giuliani denounced him as one of the “chief lieutenants” in the ring, one of the “former counterintelligence agents” for the Sicilian Mafia.

A few judges publicly challenged Giuliani’s methods. One of the first was Kevin Thomas Duffy, who broke up a massive seventy-seven-count RICO indictment against alleged crime boss Paul Castellano and twenty others into separate trials, angering Giuliani. In another case called “Pizza Connection II,” a judge ordered the acquittal of seven defendants on grounds that the conspiracy Giuliani charged was too broad and should have been broken into separate cases.

When I interviewed the chief judge of the federal court district based in Manhattan in 1990, I asked if there was a feeling among the judges that use of RICO had gotten out of hand. “That is the view held by most judges. The mega-trials are now in the process of being cut back,” Judge Charles Brieant responded. “[T]he court has suffered through these long trials. There comes a time when a trial is just too long to give practical justice; when even the judge is going to forget what was proved or not proved, what the witnesses really said.”

The racketeering indictment in State of Georgia v. Donald John Trump finds its antecedents in cases Giuliani brought in the 1980s. Giuliani also obtained the RICO indictment of a former president, Ferdinand Marcos of the Philippines, even though he was a U.S. ally and friend of President Ronald Reagan and First Lady Nancy Reagan. (Marcos died before trial; his wife, Imelda Marcos, was acquitted after a three-month RICO trial in 1990. Their son, Ferdinand Marcos Jr., is now president of the Philippines.)

As in many of Giuliani’s RICO prosecutions, Fulton County District Attorney Fani Willis is looking to put a huge number of defendants on trial together, a decision already bringing accusations of prosecutorial overreach. Likewise, the scope of the case is enormous: the ninety-eight-page Trump indictment has forty-one counts, and the alleged RICO scheme is detailed in 161 overt acts—a mega-trial in the making. The RICO charge is ambitiously expansive for a state case, covering alleged misdeeds in Arizona, Michigan, Nevada, New Mexico, Pennsylvania, Wisconsin, and the District of Columbia as well as Georgia.

By including the RICO charge, Willis was able to take comparatively minor charges—making false statements, punishable by no more than five years in prison, for example—and turn them into a much more serious offense punishable by a sentence of up to twenty years. Unlike Giuliani, Willis was low-key in her news conference, emphasizing that an indictment is an unproven charge—allegations rather than the “revelations” Giuliani liked to announce.

In his memoir Leadership, Giuliani claimed that before him, no one else had used RICO “to dismantle entire criminal operations. Although it had been around since 1970, the RICO statute was rarely used.” When he ran for president in 2008, Giuliani’s campaign tried to remind voters of his “innovative use of RICO.”

Giuliani was entertained by the cigar-chomping, seventy-six-year-old Anthony Salerno—he recalled him as “the funniest mob figure I ever prosecuted”—but failed to heed his warning that what’s done to alleged gangsters and other societal outcasts could be done to anyone else: what goes around, comes around.