This 1938 Mob Case Has Some Mind-Boggling Parallels to the Trump Hush Money Trial

If you’re wondering how Donald Trump’s hush money trial is likely to turn out, it’s worth casting an eye back to a 1938 mob case. The decision in People v. Luciano—ironically also a trial involving “family business”—will help prosecutors connect Trump to all the crimes with which he’s charged. That is so even if the jury discounts the few parts of the testimony from Michael Cohen that were uncorroborated, including his one-on-one conversations with Trump tying him to the crimes.

Perhaps you’ve heard of Charles “Lucky” Luciano, the convicted defendant in People v. Luciano. He was once the “very public head” of the Five Families in the golden age of American mobsters. His conviction for running a prostitution enterprise was affirmed by New York’s highest court in a case with powerful application to Trump’s prosecution. (Luciano’s prosecutor was, incidentally, the young Manhattan District Attorney Thomas E. Dewey, the future Republican governor of New York and presidential candidate against FDR in 1944 and Harry Truman in 1948.)

Much of Trump’s defense at trial consists of getting prosecution witnesses to admit that Trump himself didn’t falsify his company’s books, because others in his tightknit enterprise made the physical entries and drafted the checks that he signed with his notorious black Sharpie.

His attempt to insulate himself from the final stages of the scheme enables Trump and his lawyers to assure his credulous supporters that the district attorney has nothing on him. But the jury will soon hear that New York criminal law is not so naïve as to allow the ringleader of a criminal scheme to get off scot-free, simply because his minions did the deeds.

Under a long-standing rule of Criminal Law 101, acts by any co-conspirator are attributable to each member of the conspiracy, if the acts are intended to further the object of the conspiracy. In other words, each conspirator is liable for the crimes of the others committed in pursuit of the illegal objective. It doesn’t matter who committed the act or who didn’t.

But wait, you say! Prosecutors did not charge a conspiracy in this case.

That’s where People v. Luciano comes in. The New York Court of Appeals there made clear that if a conspiracy is proven by the evidence, it need not be charged for the rule of vicarious liability to apply.

Accordingly, because prosecutors in Trump’s case have laid a sufficient evidentiary foundation for the jury to find that there was a criminal scheme with multiple participants, Justice Juan Merchan will instruct jurors that, should they determine that Trump participated in the broader conspiracy, they may find him liable for any and all other conspirators’ actions.

Trump is on trial on 34 counts of falsifying business records:

●   11 Trump checks marked “retainer” though they were allegedly reimbursements to Cohen for buying “Stormy Daniels”’ silence;

●   11 invoices Cohen created for the checks with the words “per retainer”; and

●   12 entries in books kept and maintained by the Trump Organization that recorded the expenditures.

The Manhattan DA alleges that it was all done to cover up the $130,000 payoff to Daniels to keep voters in the 2016 election from knowing about the predatory sexual encounter Trump had with her around the time his wife Melania was giving birth to their child, Barron.

Going back to the rule of co-conspirators’ vicarious liability for the conduct of their partners in crime, let’s examine the actions of Trump’s alleged co-conspirators and how imputing them to Trump connects him to the allegedly falsified invoices and business entries in the ledgers.

Cohen testified that he followed Trump’s directions, which Trump often gave in “code” like a mob boss. Consider Cohen’s testimony that in a meeting, he outlined to Trump the scheme to pay off Stormy Daniels and the need for Trump to reimburse him for fronting the payoff. According to Cohen, Trump directed him, in classic mafia don style, to “Just do it!”

Similarly, back in October 2016, Trump instructed Cohen, according to his testimony, to “meet up with Allen Weisselberg and figure this whole thing out.” Cohen also explained that Trump never had an email address. According to Cohen, Trump would comment that “he knows too many people who have gone down as a direct result of having emails that prosecutors can use in a case.”

In addition, Cohen told jurors that, contrary to the words on his own invoices and on the checks Trump signed, he never drafted a retainer agreement with Trump, a statement corroborated by Trump Organization controller Jeffrey McConney’s testimony that he never saw one. (Retainers must be written under New York’s rules of professional conduct.) McConney also testified that Cohen was paid in monthly installments per direction from Weisselberg.

Cohen testified on Tuesday that he created the 11 falsified invoices. Those actions were clearly part of the conspiracy. That will allow the jury, under the rules of conspiracy law, to find Trump liable for the false invoices so long as he was part of the scheme, as the evidence shows he was.

The actions that jurors have been told Weisselberg took to “figure this whole thing out” demonstrate that the CFO, too, joined the conspiracy as “Mr. Inside,” directing how the records would be fabricated and recorded.

That conclusion is corroborated by Weisselberg’s handwritten notes, authenticated and described by McConney, about how Weisselberg directed the doubling of the $130,000 reimbursement for paying Daniels—along with another $50,000 reimbursement—to compensate Cohen for taxes he would need to pay on the phony “retainer.”

If the jury finds that Weisselberg conspired with Trump and Cohen, it can also use the CFO’s actions—and his statements to which trial witnesses testified—against Trump. Co-conspirator liability becomes the basis to connect Trump to Cohen’s invoices and Weisselberg’s direction about the recording of false vouchers in ledgers kept and maintained by the Trump organization. Along with the invoices, that accounts for 23 of the 34 counts of the indictment.

The other 11 counts, of course, are about the various checks for $35,000 or more that Trump signed with the notation “Retainer” printed on the stub. Perhaps Trump’s lawyers will argue that he believed it was a retainer; in other words, Trump innocently thought that the checks were for legal services. Perhaps his defense counsel will argue, in conjunction, that Cohen paid off Daniels on his own, as Hope Hicks testified that Trump later told her in 2018—statements that even she, a Trump loyalist, did not believe.

Indeed, Trump’s lead defense counsel, Todd Blanche, said in his opening statement that “the $35,000 a month to Mr. Cohen was not a payback for the money he gave to Ms. Daniels.” Trump’s denial that the checks he signed were reimbursements to Cohen was the crux of the defense’s argument.

Unfortunately for that denial and defense, in a 2018 lawsuit against Daniels, Trump represented in a court filing via his lawyers that he had reimbursed Cohen for the $130,000 payment to Daniels. Because Trump avoided sending personal emails and texts and had others do his dirty work (in traditional mob fashion), most of the other evidence against him will be largely circumstantial or come in via the co-conspirator liability rule.

Which brings us back to People v. Luciano. When the mobster argued on appeal that the evidence was insufficient to tie him to the crimes charged, the court answered in terms that are too deliciously applicable to paraphrase:

You may have heard the clever aphorism that “history never repeats itself, but it does often rhyme.” If ever there was a poetic irony that rhymes in the long history of the law, it may be the application of People v. Luciano to People v. Trump.