“TOTAL EXONERATION” NOW MEANS DETAILED DESCRIPTIONS OF CRIMINAL MISCONDUCT PREDICATE TO A POTENTIAL RICO PROSECUTION
Untitled, Acrylic on Panel, 12" x 16", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Why would Individual-1 respond to the appointment of the Special Counsel as marking the end of his presidency? On a hunch that Individual-1’s life of crime did not begin after announcing his candidacy for POTUS, I suspect the bags of bodies Individual-1 carried into the campaign and White House were as much incentive for his obstructive activities as anything having to do with Russian meddling in the 2016 presidential election. That’s why, I’m guessing, Individual-1 was and continues to be apoplectic over the prospect of his Organization’s finances being placed under a forensic microscope. Tying Individual-1’s serial attempts to undermine the investigation as detailed in the Mueller Report to an historical and ongoing criminal enterprise could well warrant inclusion of those obstruction counts in a RICO indictment.
I was never a prosecutor. I have worked with and against them for much of my professional life, however. I have also represented people charged with criminal misconduct at virtually every level of the criminal justice system, including public corruption charges. As we know, over 1,000 former federal prosecutors signed a letter that the Mueller Report outlined three sets of facts that would unquestionably be indicted as obstruction of justice absent the DOJ policy against indicting a sitting POTUS. “No brainer.” “Not even close.” Having reviewed Individual-1’s conduct, its nexus to the investigation and the compelling evidence of his corrupt intent, I cannot disagree. Those obstructive acts are:
• Individual-1’s attempts to fire Mr. Mueller and to falsify evidence about that effort;
• Individual-1’s attempts to limit the scope of Mr. Mueller’s investigation to exclude his conduct; and
• Individual-1’s attempts to prevent witnesses from cooperating with investigators probing him and his campaign.
The Report, in my opinion, is a masterpiece of factual and legal analysis. As with most things tweeted or spoken by Individual-1, his claim of “total exoneration” in either Volume of the Report is a “total lie.” As for Volume I, the only way to give Individual-1 and his campaign the benefit of the doubt — that they did not work with Russia to interfere with the 2016 election — is to acknowledge their shear incompetence and stupidity. Mr. Mueller reported no evidence that Individual-1 and his campaign engaged in conduct that rose to the level of criminal conspiracy to hack the emails that were actually obtained and eventually released. Individual-1’s operatives, however, knowingly engaged with people responsible for hacking the emails and with those responsible for their release, respectively Guccifer-2 (Russian intelligence) and Wikileaks. The campaign was, in fact, involved in coordinating media strategies around Wikileaks’ release of the DNC hacked emails.
Indeed, shortly after Individual-1’s “Russia if you’re listening” speech in which he encouraged the illegal hacking of Candidate Clinton’s emails by a hostile foreign adversary, he directed Mr. Flynn to obtain the emails which he believed Russia possessed. The campaign, as with Individual-1 Jr., was eager to receive Ms. Clinton’s hacked emails from a hostile foreign power because Individual-1 believed the stolen materials would increase the likelihood of his winning the election. (Now he is upset the legitimacy of his election as POTUS is subject to question.) Those were not the emails Russians had stolen, however. People involved in the campaign engaged with Russian hackers to retrieve emails it turns out Russia didn’t have.
Moreover, Mr. Mueller needed more than 100 pages to detail the evidence of extensive contacts between persons connected to Individual-1 and his campaign and Russians tied to the Kremlin. And, of course the candidate lied to the electorate throughout the campaign that he had nothing to do with Russia, granting the Kremlin even more компрометирующий материал.
16–12–10: IS RICO HIDING IN PLAIN SIGHT?
Wired recently identified 16 active inquiries relating to Individual-1, his interests and organizations/persons affiliated with him. The known state and federal investigations concern the following:
• Middle Eastern Influence;
• Campaign Finance Conspiracy;
• Inauguration Funding;
• Inauguration Spending;
• SuperPAC Funding;
• Individual-1 Foundation;
• Individual-1 Organization Finance Issues;
• Federal and State Immigration Violations [at Individual-1 Properties];
• Manafort Mortgage Case [Stephen Calk was recently indicted for bribing Manafort by pushing through $16 million in “questionable” loans in exchange for assistance in seeking a high level appointment in the Individual-1 administration];
• DC’s Inauguration Probe;
• Elliot Broidy; and
• Chinese Influence/RNC Finance.
TRUMP’S WORLD STILL FACES 16 KNOWN CRIMINAL PROBES
The Mueller Report referenced 12 matters of which the Special Counsel became aware during his investigation of Russian interference in the 2016 election which he sent to other offices for investigation/prosecution because they fell outside his jurisdiction. (He also referred two matters to other districts that fell within his jurisdiction.) Presumably, those matters are not related to the investigation of Russian interference or Individual-1’s attempts to obstruct that investigation. It is unknown whether or to what extent the 12 unidentified matters involve Individual-1, and whether those matters remain active. It is also unknown whether or to what extent the 12 unidentified matters the Special Counsel referred to other offices overlap with the known 16.
The Special Counsel prepared Volume II of the Mueller Report to stand alone. He did so by giving a detailed summary of Russian interference and events leading up to the appointment of the Special Counsel as backdrop. In Volume II the Special Counsel presented extraordinary detail concerning no fewer than 10 instances in which Individual-1 attempted to obstruct the investigation of Russian interference in the 2016 election, including both public and private attempts to influence witnesses. Those were:
• Individual-1 attempted to persuade James Comey to see his way clear to letting Flynn off the hook;
• Individual-1 attempted to prevent Sessions from recusing his oversight of the Russian interference investigation, to cause Sessions to unrecuse after he recused, and to cause the Directors of the FBI and National Intelligence and leaders of the CIA and NSI to publicly dispel any suggestion that Individual-1 was connected to the Russian interference in the 2016 election;
• Individual-1 fired James Comey, Director of FBI;
• Individual-1 attempted to have White House counsel McGahn remove Mr. Mueller as Special Prosecutor;
• Individual-1 attempted to have private citizen Lewandowski deliver to Sessions instructions to publicly announce the investigation was “very unfair” to Individual-1;
• Individual-1 attempted to prevent public disclosure of emails leading up to the Individual-1 tower meeting on June 9, 2016 and helped prepare the press release claiming the meeting was only about adoptions;
• Individual-1 attempted again to cause Sessions to unrecuse and take back supervision of the Russian investigation, suggesting that his status would elevate to “hero” if he did so;
• Individual-1 attempted to have McGahn deny that Individual-1 had ordered him to fire the Special Counsel;
• Individual-1’s defense team attempted to have Flynn’s criminal defense counsel give Individual-1 a “head’s up” if Flynn would be providing information to the Special Counsel that implicated Individual-1, warning that refusal to provide such information would be interpreted as “hostility” toward Individual-1; and Individual-1 publicly called Manafort a “brave man” for “refusing” to “break,” and saying that “flipping” “almost ought to be outlawed;
• Individual-1 publicly and privately attempted to influence Cohen through evolving comments, including praise when he “stayed on message,” encouragement not to “flip,” assurance that Cohen would be “taken care of,” and castigation when Cohen began cooperating with the Special Counsel, calling him a “rat” and suggesting his family members had committed crimes.
Is Individual-1, his Organization, his Family, or Any Iteration of Them a Racketeering Enterprise Within the Meaning of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–1968?
The penalties for violating the federal RICO statute are Draconian. They include up to life in prison and forfeiture of a defendant’s interest in the enterprise connected to the offense and interests and proceeds derived through the “pattern of unlawful activity.”
In 1970 Congress found that
“(1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud and corruption; (2) organized crime derives a major portion of its power through money obtained from . . . illegal endeavors [and] forms of social exploitation; (3) the money and power are increasingly used to infiltrate and corrupt legitimate business . . . and to subvert and corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten domestic security, and undermine the general welfare of the Nation and its citizens . . . .”
Pub. L. №91–452, Section 1.
Congress enacted RICO in 1970 as a powerful tool to combat organized crime that had infiltrated and was exercising corrupt influence over legitimate businesses and organizations including government throughout the United States.
Simply stated (nothing is simple about RICO), RICO renders illegal:
• “a pattern of racketeering activity”;
• “a pattern of racketeering activity” is defined to include a combination of two or more violations of predicate criminal offenses (identified below);
• predicate offenses must be performed by persons who have a specified relationship to an “enterprise”;
• “enterprise” is very loosely defined to include individuals, legal entities (corporations, limited liability companies, partnerships) and groups of individuals associated in fact even though they are not members of a legal entity. Legitimate and illegitimate associations are encompassed within “enterprise.” Government agencies also qualify under certain circumstances.
RICO recognizes three different criminal violations:
- investing the proceeds derived from a “pattern of racketeering activity” in an “enterprise” (e.g., using proceeds from specified illegal activity to purchase a legitimate business);
- acquiring or maintaining an interest in an “enterprise” through a “pattern of unlaw \ful activity” (e.g., taking over a legitimate business through extortion); and
- conducting the affairs of an “enterprise” through a “pattern of unlawful activity” (e.g., conducting predicate offenses by using the facilities of the “enterprise”).
RICO also makes it a crime to conspire to commit any of the foregoing categories of crimes.
Prosecution under RICO does not require proof that either the defendant or the enterprise was connected to organized crime. Such connection is not an element of the offense.
A RICO “pattern of racketeering activity” is made up of at least two acts of racketeering activity, or predicate offenses. The RICO statute includes among the long list the following predicate offenses which seem most relevant to this discussion, considering the behavior and types of conduct in which Individual-1 and those with whom he associates in business, politics and government allegedly engage:
• Bribery of public officials and witnesses, 18 U.S.C. § 201
• Mail and wire fraud, 18 U.S.C. § 1341. These statutes can be used to bootstrap predicate offenses that are not listed under RICO. For example, tax crimes under the IRS Code [e.g., tax fraud/evasion] are not included as RICO predicate offenses. Most tax crimes, however, utilize the mail or electronic means for communication and filing. If those tax crimes involve alleged fraud and use of the mail or electronic means to commit that fraud, the mail and/or wire fraud constitutes a bootstrap to expand the list of predicate offenses
• Financial institution fraud, 18 U.S.C. § 1344 (Counts 24–31 in the Manafort/Gates Indictment in the Eastern District of Virginia fell under this predicate offense)
• Certain securities and commodities fraud, 18 U.S.C. § 1348
• Fraud in foreign labor contracting, 18 U.S.C. § 1351
• Procuring citizenship or nationalization unlawfully, 18 U.S.C. § 1425–1427
• Obstruction of justice, 18 U.S.C. § 1503
• Obstruction of criminal investigations, 18 U.S.C. § 1510
• Obstruction of state or local law enforcement, 18 U.S.C. § 1511
• Tampering with witness, victim or an informant, 18 U.S.C. § 1512
• Retaliation against a witness, victim or an informant, 18 U.S.C. § 1513
• Fraud and misuse of visas, permits and other documents, 18 U.S.C. § 1546
• Interstate or foreign travel or use of such facilities or the mail in aid of unlawful activity, 18 U.S.C. § 1952 (Travel Act) (invoking the Foreign Corrupt Practices Act which prohibits bribing or offering bribes to foreign officials in order to conduct or maintain business, say a $50,000,000 penthouse suite in a Moscow Individual-1 Tower, hypothetically speaking)
• Laundering of monetary instruments, 18 U.S.C. § 1956
• Engaging in monetary transactions in property derived from specified unlawful activity, 18 U.S.C. § 1957
• Any offense involving fraud under 11 U.S.C. (bankruptcy)
• Any indictable act under the Currency and Foreign Transactions Reporting Act, 31 U.S.C. §§ 5311–5322 (Counts 11–14 and 21–23 in the Manafort/Gates Indictment in the Eastern District of Virginia)
The law has been amended a number of times to keep up with the times and types of crimes being committed against the United States. A post-9/11 amendment was part of the Patriot Act to combat terrorist enterprises, which added more than 50 predicate offenses as “racketeering activity” within the meaning of RICO.
Untitled, Acrylic on Panel, 12" x 16", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Has Individual-1 Engaged in RICO Violations?
Has Individual-1 done (or is he doing) any of the following:
- Invested the proceeds derived from a pattern of racketeering activity — two or more predicate offenses as listed above — in an enterprise?
- Acquired or maintained an interest in an enterprise through a pattern of racketeering unlawful activity — two or more predicate offenses as listed above? and/or
- Conducted the affairs of an enterprise through a pattern of racketeering activity — two or more predicate offenses?
[For purposes of this writing, I stayed away from certain activities in which organized criminal enterprises have traditionally engaged. I may supplement in future posts, depending on what is revealed in the near-daily Individual-1 criminal cliff-hangers. Those areas are sports bribery; counterfeiting; theft from interstate shipments; embezzlement from pension and welfare funds; extortionate credit transactions; fraud in connection with identification documents; fraud in connection with access devices; illegal transmission of wagering information; obscene matters; peonage and slavery; Hobbs Act extortion or robbery; interstate transportation of wagering paraphernalia; illegal gambling businesses; murder for hire; sexual exploitation, abuse and buying and selling children; transportation, sale or receipt of stolen vehicles; transportation of stolen goods and other property; sale or receipt of stolen goods and other property; copyright infringement and counterfeiting in the performance and entertainment and audiovisual and computer industries; trafficking in motor vehicles and motor vehicle parts with obliterated or altered vehicle identification numbers; trafficking in contraband cigarettes; transportation for illegal sexual activity; restrictions on payments on loans to labor organizations; embezzlement from union funds; narcotics violations; and a whole list of terrorism offenses.]
The criminal RICO statute also provides private rights of civil actions “by [a]ny person injured in his business or property by reason of a violation of” one of the three categories of crimes identified above. If the injured person prevails in the RICO lawsuit, s/he “shall recover threefold the damages [s/]he sustains and the cost of the suit, including a reasonable attorney’s fee . . . .”
Presumably, the Department of Justice has no authority to create some policy against suing the president of the United States for civil RICO violations. The Supreme Court has acknowledged a sitting president can be required to answer to civil litigation.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard’s list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers