The President and the Boss's son: Prosecuting the crimes of America's most powerful

Introduction

Research on the American politics of crime control exploded in the second half of the 20th century (e.g. Becker, 1963; Beckett, 1997; Chambliss and Seidman, 1971; Quinney, 1970; Turk, 1982), and this important work continues (e.g. Bell, 2017; Garland, 2001; Peterson and Krivo, 2010; Rios, 2011; Schoenfeld, 2018; Simon, 2007; Vargas, 2016). Yet much remains unknown, for example, about who uses political power to control crime and against whom it is used. Although several US presidents have been impeached in the House of Representatives, in proceedings that are political rather than criminal in the traditional sense, no president has yet been convicted in the Senate, where criminal evidence is required but not necessarily sufficient. Does this mean none of our serving presidents has committed a crime?

We present case studies of two elite politicians. The first, Richard M Daley, son of “Boss” Richard J Daley, was Chicago's state's attorney and mayor from 1980 to 2012 and is currently a defendant in a case involving the torture of an African-American man. The second, Donald J Trump, is the only president impeached twice by the House, yet not convicted by the Senate, despite evidence of his linkage to Russian interference in the 2016 presidential election.

Daley and Trump's careers followed the rise of American criminology, which included Edwin Sutherland's (1949) and Donald Cressey's (1965) theories of “white collar” and “respectable crime.” Cressey (1965, 1969, 1972) stimulated the Racketeer Influenced and Corrupt Organizations Act (RICO), which incorporates 35 organized, white-collar and political crimes, potentially including the alleged ones of Daley and Trump. This article uses respectable crime theory to explain why this Act has more extensively been directed downwards to dismantle ethnically organized crime groups rather than upwards to prosecute elite political conspiracies led, for example, by Chicago Mayor Richard M Daley and US President Donald J Trump.

The age of Reagan and its interconnected politics

Daley and Trump have channeled a long history of American resentment of whites against Black and Brown minorities. Both Daley and Trump are part of the historical scholarship (Wilentz 2008) and political criminology (Hagan 2010) of the “Age of Reagan.” Chicago author-journalist, Mike Royko (e.g. 1971), explained that during the rise of Reagan, “[T]he political winds were blowing from the right” and Chicago's first Mayor [Boss] Daley “was as much a part of it as Wallace, Agnew, or Strom Thurmond” (1971: 194). These winds intensified racial resentment.

The “Age of Reagan” is often cited as having unleashed expectations of wealth among American elites (e.g. Andersen, 2020). Reagan (1981) began by attacking low-income groups and the “breakdown in the criminal justice system”. Elected Governor of California in 1966, his White backlash “law and order” platform was his springboard into national politics (McGirr, 2001).

Richard Nixon borrowed Governor Reagan's law and order platform for his own presidential campaign; however, Watergate brought his downfall in 1974. Wilentz (2008: 16–25) argues Nixon's policies were insufficiently conservative to mark the onset of the Reagan era. Instead, Wilentz designates Gerald Ford's 1974 presidential succession as the beginning. Ford pardoned Nixon and he served until Carter defeated him by promising “to never tell a lie”. Reagan became President in 1980, when Carter's honesty pledge failed to win him re-election. If Carter's single term is understood as exceptional, and if Trump's presidency is thought of as an America First amplification of Clinton and Obama's market-oriented neo-liberal legacy, the Age of Reagan can be thought of as lasting from 1974 (Ford's beginning) through 2020 (Trump's extension). Recall that Clinton claimed credit for ending “welfare as we know it”, while Obama globalized trade relationships and adopted a “kill list” to guide drone attacks on Al Qaeda (Becker and Shane, 2012). We are as yet unsure how Biden's presidency will evolve.

In 2001, Ford received the Kennedy Profiles in Courage award for pardoning Nixon. Ford (1979) concluded Americans did not actually want Nixon “behind bars”. It was a counter-intuitive example of Cressey's (1965) “respectable crime”. Cressey's conception was built on Mills’ (1940) discussion of motives. Cressey (1965: 15) explained: “vocabularies of motive are not … invented … on the spur of the moment … [T]hese verbalizations exist as group definitions … and become powerful when verbalized and internalized.” Without irony, Ford's Profiles in Courage award concluded that “President Ford was the right man … to restore the American people's trust in their government.”

President Ford's award for his “Profile in Courage” suggests that when it comes to criminal law, the importance attached to the presumption of innocence is a privilege that rises with racialized differences in power. Devah Pager (2007: 160) captures the implications when she writes that, “blackness has come to embody criminality in the minds of many Americans. In some very real respects, all young black men are punished for the punishment of some.”

The age of Reagan, the Daley dynasty, and Donald Trump

Mayor Richard J Daley (RJ) shared Reagan's “law and order” politics, despite being a Democrat (see also Gottschalk, 2016; Murakawa, 2014), and his son Richard M Daley (RM) adopted Reagan's backlash ideology in campaigning for state's attorney in 1980—the year Ronald Reagan won the presidency. RM served as state's attorney and then mayor from 1980 to 2012, making him one of the longest serving elite public officials of the Reagan era. Trump extended this era by adopting Reagan's campaign slogan and his racially divisive politics. Both RM Daley and Trump capitalized on a racial divide that was mobilized and empowered by White ideas about respectability and privilege. We will show that the power of these ideas helps explain how (1) Jackie Wilson, the African-American brother of a convicted killer of two police officers, was prosecuted by State's Attorney RM Daley and incarcerated for 36 years before being exonerated and declared innocent, and (2) how President Donald Trump was protected while in office from criminal prosecution by a dubious Justice Department opinion of its Office of Legal Counsel.

Donald Cressey's premise was that the USA's organized criminals—including elite politicians—could be denied the protection of a White ideology of privileged respectability through enforcement of a structurally empowering RICO statute and its key concept of “criminal enterprise”. Our purpose is to demonstrate the relevance of the RICO statute that Cressey advanced and his resulting importance for American society and criminology.

Cressey's concept of “criminal enterprise”

Our case studies of Daley’s and Trump's activities of power and privilege build on Cressey's contributions. These include Cressey's influential chapter on “The functions and structure of criminal syndicates” written for the Katzenbach Commission and the 1967 President's Commission on Law Enforcement and the Administration of Justice. The chapter argued for a law to prosecute criminals who joined forces in organizing their crimes (see Akers and Matsueda, 1989).

Cressey (1969) initially was concerned with ethnically organized criminal groups. But the 1970 RICO Act was potentially more sweeping (see Tribe et al., 2021). RICO built around Cressey's concept of “criminal enterprise”, which focused on the organization of groups for racketeering and corruption. For example, Cressey (1970) emphasized connections between organized crime, city governments, and corrupt politicians.

Cressey's organizational focus is important to our understanding of Daley and Trump because it highlights the coordination of power in corrupt activities. Wheeler and Lewis (1982; also Hagan, 1982) explain that modern organizations are powerful weapons for political and white-collar criminals. They note the organization is “what the gun or knife is for the common criminal” (Wheeler and Lewis, 1982: 1406). Cressey (1972) emphasizes that organizations are used for both criminal and non-criminal purposes, and that our modern “organizational society” provides “scaled up” resources for advancement of these purposes.

RM Daley could have recognized himself in Cressey's work. In the 1990s, he colluded as mayor with organized crime figures to fund campaign contributions through a “Hired Truck Scandal” (Hagan et al., 2022a). The RICO Act was also used in the 1980s to prosecute Michael Milken—“the junk bond king”. These were, of course, organized political and white-collar crimes that Sutherland and Cressey brought into criminology.

Cressey's impact on domestic and international law enforcement

Cressey's essential contribution was that successful prosecution of criminal organizations required attacking the structure—instead of just the individuals—involved in criminal enterprise. This concept has been applied internationally at the Tribunal for the Former Yugoslavia (ICTY) and at the International Criminal Court (ICC). In the 1990s, the US Department of Justice “seconded” 22 lawyers who applied the RICO Act at the ICTY. For example, Marc Harmon used the concept of “joint criminal enterprise” to prosecute the first sitting head of state—Serbia's Slobodan Milosevic—who smuggled contraband and organized groups to perpetrate genocide, torture, and other war crimes (Hagan, 2003). More recently, the ICC applied the joint enterprise concept in charging Sudan's President Omar Al Bashir with genocide in Darfur (Hagan and Rymond-Richmond, 2009).

Earlier, Supreme Court Justice Robert Jackson (1945), who led prosecutions of war criminals at Nuremberg, insisted that: “We are not prepared to lay down a rule of criminal conduct against others which we would be unwilling to have invoked against us.” Yet today, Jackson's dictum is little remembered outside international law.

Catherine Gibson (2008) explains how American prosecutors implemented RICO at the ICTY: by emphasizing two group requirements—involvement of a plurality of persons in a group enterprise (P1) with a shared criminal purpose (P2)—as well as two individual-level requirements—individual participation in the group enterprise (P3) with criminal intent (P4), all of which contribute to a group structure that has continuity over time (P5). As shown by Figure 1, this is a model for prosecution of American-elite politicians as well as violations of international criminal law.

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Figure 1.

Gibson's (2008) requirements to successfully implement RICO.

At the ICTY, the requirement of a plurality of persons was met by showing group involvement of leadership persons, while the common purpose requirement involved establishing their shared intentions in advancing joint criminal enterprise. The individual participation requirement involved showing assistance or contribution to group outcomes, while further showing these crimes were foreseeably and thus intentionally criminal. None of this required direct personal involvement—indirect involvement was sufficient.

Gibson further explained how application of RICO requirements in the USA formally paralleled their use at the ICTY. In both settings, the requisite group is determined along with individual liability; although, in the USA, the criminal enterprise must further display structure and continuity over time. Other domestic criminal statutes had not prevented these highly organized activities because they punished replaceable low-level perpetrators. A Congressional “Statement of Findings and Purpose” made clear that RICO was created for a bigger purpose:

the eradication of organized crime … by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.

This article focuses on the above requirements in relation to the activities of Daley and Trump. For successful criminal prosecution, domestic and international courts both require certainty about the above elements, “beyond reasonable doubt”. However, the standard of evidence required in sociological criminology is more probabilistic, and in this way more similar to the “balance of probabilities” required in civil law. We argue both standards can be met with evidence of the kind summarized below. However, we also argue that for purposes of criminology, the lesser probabilistic standard is sufficient.

The two case studies of Daley and Trump focus on individuals elected to powerful positions in our state and federal systems of government. They thus provide a unique opportunity to test a guiding hypothesis of this article: that American-elite politicians—as suggested by Ford's pardon of Nixon and his Profiles in Courage award—occupy protected positions of respectability and privilege in a system that gives them great power over the treatment of crimes below them in the social hierarchy, while also protecting them from punishment for their own crimes.

Note that the purpose of this article is therefore not simply to test Cressey's theories in a conventional way. Rather, our point is to demonstrate through our two case studies just how corrupt the two historically important political regimes of Richard M Daley and Donald J Trump have been, and to further consider why prosecutors have been unnecessarily wary about using the Cressey-inspired RICO statutes to prosecute these crimes.

Richard M Daley case study

RM Daley served as state's attorney (1980–1988) and Chicago's mayor (1988–2012) for 32 years. The Chicago Police Department's (CPD) Jon Burge served under Daley and was alleged to have supervised torture of over 100 African-American men (Hagan et al., 2022a; Taylor, 2019). Burge was convicted in 2010 for perjury and obstruction of justice, but not torture, and without fully revealing how he and others perpetrated their crimes.

Daley's link to Burge dated from 1982, when two African-American brothers, Andrew and Jackie Wilson, were convicted of shooting and killing two police officers. The Wilson brothers were tortured under Burge's supervision into confessing the murders. Burge was what Cressey called a “corrupter” of the police officers in his “midnight crew” of “ass kickers” (see Conroy, 2000; also Van Cleve, 2016).

In his first term as state's attorney, Richard M Daley (RM), son of Richard “Boss” Daley, was already planning a 1983 primary campaign against incumbent Mayor Jane Byrne. This motivated both Byrne and Daley to become involved in the Wilson “cop killer” case; although neither won the 1983 nomination. Instead, Harold Washington was nominated and elected Chicago's first Black mayor.

Byrne had ordered the CPD's Joseph McCarthy to lead a door-to-door dragnet search for the Wilsons. An activist group called McCarthy's tactics “Gestapo”, noting he also ran a unit called the “ghetto raiders” (Cruz, 1982). After their arrest, the Wilsons were pistol whipped, punched, kicked, and shocked with an electrical device (Taylor, 2019). The confessions from both brothers were recorded by Assistant State's Attorney Lawrence Hyman, who neglected to ask whether the confessions were given voluntarily. Hyman served under State's Attorney Daley.

RM Daley had campaigned on tightening control over his office's charging decisions (Jackson, 2011), and the Wilsons’ confessions resulted in first degree murder charges. RM was later named as a co-defendant (see Cannon, 2007; Taylor and Bowman, 2007) in a civil suit modeled on RICO, charging that:

Defendant Daley had direct, personal knowledge … Each and every such decision was made personally by State's Attorney Daley himself after … full consultation with both his high command and the line assistants [e.g. Hyman] handling the prosecution.

His brother Jackie's second trial was not until 1989, apparently because of evidentiary problems; he was resentenced to life. Years later, in 2018, a Torture Inquiry Relief Commission overruled Jackie's confession and ordered a third trial, which revealed prosecutors had manufactured evidence. The result was dismissal of his charges in 2020; the judge concluded that Jackie's brother, Andrew Wilson, “alone was their murderer” (J Wilson, 2020/2021: 2, emphasis added).

After a final Certification of Innocence (Possley, 2020/2021), Jackie Wilson filed a 2021 civil complaint against Daley and others involved in his case including: former Assistant State's Attorney and later Judge William Kunkel; Cook County State's Attorneys Lawrence Hyman, Andrew Horvat, and Nicholas Trutenko; jailhouse informant William Coleman; CPD Commander John Burge and others. Figure 1 draws on Gibson's (2008) approach to RICO prosecutions, which highlights the members of the group and its shared purpose This involved prosecuting both Wilson brothers while hiding their torture by the police.

RM Daley was named as a co-conspirator who “concealed and suppressed … knowledge of the ongoing torture and physical abuse under Burge” (J Wilson, 2020/2021: 7). Suspicion about Daley's role had persisted throughout his 30 years in public office. The suspicion stemmed from the case being brutally pursued as a “heater crime”, followed by the Wilsons’ torture, with neither brother being asked about his confession's voluntariness, and Daley's failure to respond to a letter from the CPD's Superintendent asking for instructions about handling Andrew Wilson's apparent torture. These were the elements of a continuing criminal enterprise, with ongoing structure and continuity, as required by RICO.

After Mayor Washington unexpectedly died of a heart attack in 1987, RM Daley ran and won the following election. Burge served under Daley for 13 years. The CPD finally fired Burge, with RM Daley's knowledge, in 1993. However, no criminal charges were filed against him. Today, Black respondents still describe brutal treatment by Chicago's police as “being burg-ed” (see Ralph, 2020). In 2002, a Special State Prosecutor was appointed to renew investigation of Burge and his officers, but this investigation concluded that the statute of limitations had lapsed.

In 2008, federal US Attorney Patrick Fitzgerald took over the Burge case and in 2010 successfully prosecuted him for perjury and obstruction of justice. The case had larger implications involving both torture and a “code of silence” that Burge imposed on officers, but the judge blocked consideration of this code in open court. A recent analysis reveals how sidebars, which involved the judge and attorneys but were not heard by the jury, limited the introduction of the code and its racial implications (see Hagan et al., 2022b). Moreover, the trial itself begs the question: why didn't US Attorney Fitzgerald indict Burge and Daley for violation of the RICO statute that would have more accurately reflected their crimes?

If heard, the evidence would have revealed that Detective Laverty had confronted Burge about evidence involving the son of a Black police officer charged with rape. Laverty had found exculpatory evidence that was withheld in a secret “street file”. When this was finally revealed, the rape charge was dismissed. A US Court of Appeals later found that concealing “street files” was unconstitutional. But testimony about withholding evidence was not allowed in the Burge trial.

Instead, Burge was sentenced to prison for perjury and obstruction of justice and served less than four years. When Daley was named as a co-defendant (as described below) in a 2011 civil suit, he announced that he would not seek reelection as mayor. Daley had nearly been named by plaintiff Darrell Cannon (2007) as a co-defendant in an earlier case in which lawyers submitted a motion to include both Mayors Daley and Byrne as defendants. This motion invoked the RICO Act and criminal enterprise, holding that, “the defendants obtained as a direct result of their racketeering activity, … income from continued employment, and … pensions” (Cannon, 2007: 60). However, this case was dismissed in an out-of-court settlement.

Another out-of-court settlement involved Michael Tillman, who was exonerated after serving almost 30 years on death row based on a tortured confession. The Tillman suit was heard by District Court Judge Rebecca Pallmeyer, who in 2011 announced a decision that refocused attention on Daley by citing his 30-year code of silence that protected Burge.

Judge Pallmeyer concluded: “As mayor and state's attorney, Defendant Richard Daley had personal knowledge of the alleged abuses perpetrated by Burge and other Defendants.” Pallmeyer emphasized the “criminal enterprise” that was a feature of Daley's regime, writing that:

[the] plaintiff also alleges that Daley, against the advice of his senior advisors, “personally insisted” throughout his tenure that the City of Chicago continue to finance the defense of Burge … and other Area 2 detectives, despite his personal knowledge that Burge committed acts of torture.

Finally, a remarkable 2021 suit involving the Wilson police killings, was filed by the now exonerated Jackie Wilson, again focusing on criminal enterprise, and emphasizing the role of William Kunkle. Kunkle, who served under RM Daley in several roles, was employed from 1973 to 1996 as a state's attorney, a judge, as well as a Special Chicago Corporation Counsel.

Daley assigned Kunkle to prosecute important cases and organize the work of the state's attorney's office, and Daley was therefore in frequent communication with Kunkle about the 1982 Wilson “heater crime”. Kunkle was appointed “first chair” in the initial 1982 prosecution. He would later represent Burge in two trials, as well as four members of Burge's “torture squad”. Kunkle therefore played a major role in communication between multiple persons named as co-conspirators. In a 2006 deposition, Kunkle described the role of oral communication with Daley and others, saying of the office, “It's about as under papered as lawyering can get” (quoted in Hagan et al., 2022a: 130).

A likely reason that oral communication was important to Daley is suggested in the 2021 Wilson complaint:

Prior to the 1983 trial, [a Witness] Hardin participated in a meeting with Defendant William Kunkle and ASA [Assistant State's Attorney] Angorola … In this meeting, Hardin informed the prosecutors that Plaintiff [Jackie] was not involved in the … murder of the two police officers, and that he stood by the car the entire time … In response, Angorola in the presence of Kunkle, repeatedly threatened Hardin in order to force him to falsely implicate Plaintiff [Jackie]. Defendant Kunkle … encouraged ASA Angorola's misdeeds.

Another still living ASA, Nicolas Trutenko, also worked with Kunkle in preparing Jackie Wilson's second 1989 retrial. Trutenko was lead prosecutor and “proceeded to manufacture additional false, inculpatory evidence to supplement … Hardin's [see above] false, coerced, and manufactured statement” (J Wilson, 2020/2021: 28):

Trutenko met on several occasions with defendant William David Coleman, aka Alfred Clarkson, a jailhouse informant, career criminal, and British national, during which time they fabricated a story that Plaintiff [Jackie] had admitted his involvement in the murders.

The complaint noted above revealed what was later confirmed to be Coleman's false testimony. The complaint reads: “defendants Trutenko, William Kunkle, and Coleman suppressed the fact that Coleman's story was false, manufactured, and purchased by County and City monies” (J Wilson, 2020/2021: 5). Revelation of the secrecy and substance of the latter relationship proved to be the undoing of Jackie Wilson's retrial. One of the witnesses now testified that Jackie was in “a state of shock” during the shooting, and that he had not observed him assisting his brother's shooting of the officers. Trutenko was found to have pressured several of these witnesses.

Coleman was a classic jail-house snitch. Kunkle apparently had a continuing common purpose in working with Trutenko and Coleman to develop testimony that would result in a reduced sentence for Coleman, who had previously been convicted of fraud, theft, perjury, manslaughter, and blackmail (Possley, 2020/2021).

In June of 2021, when Jackie Wilson filed his federal civil rights lawsuit that included both Daley and Trutenko as defendants (Possley, 2020/2021), Cook County Judge Alfredo Maldonado ordered that a special prosecutor investigate Trutenko. He later observed that the “sordid history of the investigation and criminal prosecutions in this case serve as a shameful chapter in Chicago's history” (J Wilson, 2020/2021: 6). Figure 2 lays out the ways that this case study could have been tried as a RICO crime, under the Gibson framework.

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Figure 2.

Gibson's (2008) requirements to successfully implement RICO, Richard M Daley.

Yet there is still another part to the Daley story. In May of 2011, Daley attended his last city council meeting. Rahm Emanuel—his former fund raiser—was inaugurated the following year as the new mayor of Chicago. Soon after, he indicated he was open to settling the earlier discussed Tillman case out of court. Just as Daley had used the city's coffers to pay for the defense of Burge and others, and to settle many of these cases, Emanuel now opened the same coffers. The terms of the settlement were compelling: US$5.37 million. The agreement included no apology, much less a confession by Daley, and he was now off the hook for an embarrassing and difficult deposition in preparation for trial.

Judge Pallmeyer had rendered the semblance of a judgment by including Daley as a defendant in the Tillman case and enumerating the reasons why. But Daley had been able to avoid prosecution and to cling to a dubious claim of “respectability” as the six-time elected mayor of Chicago. Daley's experiences are consistent with Cressey's conceptualization of a high ranking “respectable criminal”.

The potential inadequacy of this outcome as a deterrent was revealed in 2014 when the new Mayor Emanuel began his own code of silence by refusing for 13 months to release a police dashcam video of 16 shots fired by a Chicago police officer in the killing of 17-year-old Laquan McDonald. A Cook County Court ultimately ordered the release of the video and the police officer, Jason Van Dyke, was convicted and sentenced to 6.75 years in prison. He served only three years of this sentence.

Rahm Emanuel wound up publicly conceding that the CPD was seriously compromised by a code of silence. However, like Daley before him, he was able to exit the mayor's office by choosing to leave on his own terms. Emanuel was succeeded as mayor by Lori Lightfoot, who soon told the New York Times Magazine (Marchese, 2020: 12): “What I have learned is that cultural dysfunction in the Police Department is so deep it's going to take enormous effort to disrupt it.”

A question this first case study poses is why prosecutors were not able to secure convictions that would leave a lasting mark by applying the RICO Act. In 1993, the US Department of Justice conducted a state-based study that sought answers. Their conclusion is consistent with what President Ford realized about President Nixon and Watergate: “They [prosecutors] feared that lack of judgment in selecting cases would lead to media and public backlash” (US Department of Justice, 1993: 12–17). Like President Ford, Chicago prosecutors apparently decided that the public and the press did not see crimes—even those as racially egregious as those attributed to Daley, Burge, and Kunkle—as “organized crimes”, or as deserving of legal vilification as “criminal enterprise”, “racketeering”, or “corruption”.

Donald J Trump case study

During Donald Trump's administration, we limit attention to Russian interference in the 2016 presidential election (see Figure 3). We take advantage of the wealth of writing about Trump to consider how different authors have understood his 2016 election. Since these writers are not conventionally thought of as social scientists, and their contributions to understanding Donald Trump are unique, we begin by briefly describing the relevance of each. We draw extensively from these sources: Andrew Weissmann’s (2020) Where Law Ends about his prosecutorial role in the Mueller Report; Jeffrey Toobin’s (2020) True Crimes and Misdemeanors for insights of a former prosecutor turned author-journalist; journalists Isikoff and Corn’s (2018) Russian Roulette that assesses collusion between Vladimir Putin and Trump; former federal prosecutor Elie Honig’s (2021) Hatchet Man, an analysis of US Attorney William Barr's role in overseeing the Mueller Report; and from Adam Schiff’s (2021) Midnight in Washington for a prosecutor turned congressman with access to government intelligence. All critiqued the opaqueness of the Mueller Report (2019), but we will also see that Mueller finally offered some clarity about the report in congressional testimony.

We again focus on the potential importance of RICO and its role in the backstory of the Mueller Report. Andrew Weissmann previously worked with Mueller at the FBI, and he explains that his selection involved his RICO experience prosecuting organized crime bosses (Weissmann, 2020: xix). Weissmann (2020: 6) emphasizes that organizational and white-collar crimes pose similar challenges.

Flipping witnesses is an indispensable tool … A witness can tell you where the bodies are buried … The key is to proceed on two fronts: make educated guesses … and interview low-level witnesses to try to uncover … other evidence.

Trump's early interest in Russian real estate exemplified what Simon and Gagnon (1976) called the “anomie of affluence”. Focusing on his brand, Trump sought to build a luxury “Trump Tower Moscow”. When reporters asked about the Moscow project, Trump claimed he had abandoned it.

Weissmann was dubious and wanted to subpoena relevant records. However, Mueller worried this would complicate getting Trump before a Grand Jury. Mueller also feared being fired as Special Counsel and replicating the Watergate scandal's “Saturday Night Massacre”. The opaque writing of the report was an apparent result.

Toobin (2020: 241) has insisted that “Trump did not personally collude with Russia”, even though he was anxious to do so. On CNN's website, Toobin (17 August 2021) maintained “there is no basis to prosecute Trump and little reason even to open a criminal investigation”. As we discuss below, the distinguished Harvard law professor, Lawrence Tribe (and colleagues), disagrees.

First, we draw from Gibson's (2008) analysis to make two key points. The first point is that although the RICO statutes require evidence of a plurality of participating persons in the formation of a criminal enterprise, these statutes do not require showing these persons actually acted together. The second is that although RICO statutes require formation of a common purpose, this formation does not need to be previously established, but instead may occur when a common purpose emerges extemporaneously (Figure 3).

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Figure 3.

Gibson's (2008) requirements to successfully implement RICO, Donald J Trump.

The relevance of the RICO statutes to Trump involved his collaboration with Paul Manafort, his assistant Rick Gates, and Konstantin Kilimnik, who was identified as a Russian agent who worked with Manafort and Gates in Ukraine. Manafort became Trump's presidential campaign chairman in 2016, after the Russia-Ukrainian conflict began in 2014 and then further escalated in 2022. Weissmann was assigned to develop the case against Manafort. Toobin (2020: 175) reports that he did this “in the same way that he had gone after gangsters in Brooklyn”.

Manafort and Gates had developed a profitable relationship with a pro-Russian political party in Ukraine. The profits were laundered through Cyprus bank accounts, which became the basis of Weissmann's efforts to flip Manafort. However, Trump dangled a presidential pardon that kept Manafort from cooperating, and instead Weissmann flipped Gates.

Weissmann (2020: 184) learned that Russian collaborator Konstantin Kilimnik had been operating a lobbying business with an American counterpart and funneled funds from a Ukrainian oligarch into Trump's inaugural committee. The connection between Kilimnik and the Trump campaign committee, through Manafort and Gates, was only one among numerous activities linking these participants over time. Weissmann discovered e-mails from Kilimnik to Manafort setting up an August 2016 meeting in New York, at 666 Fifth Avenue, a building made more famous by the high purchase price paid by Trump's son-in-law, Jared Kushner, and his family business.

An account of this meeting between Manafort, Gates, and Kilimnik emerged when Weissmann (2020: 197) began developing a plea deal with Gates. Weissmann recalled that:

One subject was money … Another was a legal dispute between Manafort and the Russian oligarch Oleg Deripeska …

Later in his book, Weissmann (2020: 303) returned to his questioning of Gates in the August meeting to ask how Trump benefited from transferring campaign polling data. He remarked that:

The facts we’d established … were staggering. On August 2, if not earlier, Russia had clearly revealed to Manafort—and by extension to the Trump campaign—what it wanted out of the United States: “a wink,” a nod of approval from a President Donald Trump, as it took over Ukraine's richest region [Crimea].

Adam Schiff (2021: 89) explains how this “wink and the nod of approval” was delivered. President Obama had previously imposed sanctions on Russia for its suspected interference in the 2016 election. Soon after Trump's election, Michael Flynn met with the former Russian ambassador to the United States, Sergey Kislyak. The purpose of the meeting was to promise Trump's approval and to discourage Russia from responding too strongly to the sanctions:

The implication was clear: The Russians had just helped Donald Trump become president, and Trump would return the favor by doing away with Russian sanctions. Flynn had been colluding with Russians to undermine the bipartisan policy of the United States.

Late in his account, Weissmann (2020: 335) dismissed Attorney General Barr's four-page letter and later press conference conclusion that the Mueller investigation had found no evidence that the Trump campaign conspired with Russia to influence the 2016 election. Weissmann writes that:

What actually happened is that we did not find sufficient evidence of a conspiracy to bring a criminal case … It is not true that we did not find any evidence … And in his April 17, 2019 press conference, Barr went even further, stating that the public now knows from the Mueller investigation that the Russians did not have “the cooperation of President Trump or the Trump campaign.” This statement flies in the face of the truth—ignoring the campaign's willful and enthusiastic pursuit of Clinton dirt at the Trump Tower meeting, its pursuit of emails from Wikileaks, and Manafort's dissemination of internal polling data to the Russian Kilimnik.

Furthermore, we now know with further certainty, on the basis of a Department of Treasury Press Release by Secretary Janet Yellin, that:

Konstantin Kilimnik is a Russian and Ukrainian political consultant and known Russian Intelligence Services agent implementing influence operations on their behalf. During the 2016 U.S. presidential election campaign, Kilimnik provided the Russian Intelligence Services with sensitive information on polling and campaign strategy.

A complication, of course, was the Department of Justice's Office of Legal Counsel opinion that presidents should not be indicted while in office (i.e. because going to court could be a distraction from their responsibilities). However, Weissmann (2020: 314) explicitly disagreed with this opinion, insisting that “prohibiting an indictment while the president is in office undermines the presumption that no American is above the law”. And he further noted that legal proceedings involving an indictment could, in any case, be delayed until completion of a presidential term.

So why did Andrew Weissmann—at a minimum—not more aggressively push Robert Mueller to make clear the powerful evidence of obstruction of justice that Weissmann and colleagues had developed? Jeffrey Toobin offers an important clue, while Weissmann also offers his own insights. The combination makes a strong case that loyalty to Mueller's wishes outweighed other considerations, including the rule of law.

The pull of loyalty and admiration was apparent in Weissmann's (2020: 41) description of his initial meeting with Mueller about working on the investigation and report: “I couldn't say no to Bob Mueller. It would be unthinkable—simply as a matter of loyalty and duty.”

The further motivational clue Toobin (2020: 184) provides involved a conservative columnist's later attack on Weissmann in the Washington Post for a letter he wrote supporting acting attorney general, Sally Yates, whom Donald Trump had fired. The column was titled “Mueller needs to make a change”. On the morning the column appeared, Mueller was waiting at the door to Weissmann's office. When he arrived, Mueller said simply, “your last day in this office is going to be my last day in this office”. According to Toobin (2020: 184), “Weissmann went into his office, closed the door, and wept in gratitude.”

The contradiction, of course, was that the legal code Weissmann worked within did not allow such loyalty to supersede the rule of law. This problem peaked with the final drafting and delivery of the Mueller Report. Weissmann (2020: 317, emphasis added) writes that:

Mueller had made a nuanced decision. Where the facts did not support a criminal charge beyond a reasonable doubt, he would say so in the report … But where the proof did support such a charge, as with the obstruction of justice …, Mueller determined that the report would not say so.

It was the responsibility of Weissmann's colleague, Michael Dreeben, to draft the final report, and he asked Weissmann to read an early version. Weissmann's (2020: 318) frank response was that “his argument completely disregarded the fact that the special counsel regulations called for us to make a recommendation one way or the other regarding potential charges”.

This contradiction was never resolved, and as Dreeben reminded Weissmann, “if you and I were in charge, this is not how it would read” (2020: 321). Weissmann (2020: 322) acknowledged the resulting damage, saying “It is difficult to read this now, knowing how Barr eventually used the mealymouthed language of that passage to misrepresent our report's conclusions, prior to its being made public.”

This difficulty derives, at least in part, from Dreeben and Weissmann's authorial roles in the drafting and acceptance of the “mealymouthed” language and its use in obscuring the significance of the Mueller Report's own evidence about Russia and Trump's roles in the obstruction of justice. As we noted earlier, the Department of Justice’s memos generated by the Office of Legal Counsel (OLC) were published in 1973 and 2000. These memos are often cited as indicating that a sitting president cannot face indictment because it would undermine the executive branch’s capacity to perform its constitutional functions.

However, we also noted above that Weissmann (and apparently Dreeben) did not accept this argument, because, even if the memos were taken as compelling a delay in prosecution, the OLC opinion nonetheless still allowed the president to be prosecuted after leaving office. In this sense, the memos could confer privilege and even respectability to powerful actors, but they did not of necessity place them above the rule of law.

The consequences associated with the submission of the report, with which Dreeben and Weissmann did not apparently agree, were profound. The former federal prosecutor, Elie Honig (2021: 42, emphasis in original), provides a summary of how Barr took advantage of the release of the Report:

Here's the timeline … Mueller sent his report to Barr on March 22. Barr issued his [summary] four-pager two days later … But Barr sat on the Mueller Report for a total of twenty-seven days, until April 18. In the meantime, Barr testified in Congress and held a press conference, offering his take on the as-yet-unreleased Report. Barr had the report, but he kept it locked down while he did a nearly four-week public relations tour spinning it.

Adam Schiff (2021: 184–185) later noted that Congress confronted a further problem in deciding to impeach President Trump:

If Congress failed to impeach a president who had solicited and made use of illicit foreign assistance in his campaign … and then obstructed the investigation into the obstruction of that misconduct, then we risked setting a precedent that such behavior was compatible with holding the office. And yet if we impeached the president and he was acquitted in the Senate, then we would have established that such misconduct was unimpeachable.

Ironically, when Adam Schiff invited Robert Mueller to testify following his Special Counsel Report and Barr's summary of it, Mueller seemed to concede Sutherland's logic. Schiff (2021: 196) reported that he asked Mueller about this: “From your testimony today, I gather that you believe that knowingly accepting foreign assistance during a presidential campaign is an unethical thing to do?” Mueller answered: “And a crime.” Schiff repeated Mueller's answer—And a crime—because, as he noted, he was “surprised by his [Mueller's] willingness to go beyond the report”.

Mueller was now acknowledging the seriousness of Trump's willingness to accept, and indeed pursue, Russian assistance to win the presidential election. A notable implication is that Dreeben and Weissmann might have been able to convince Mueller to more clearly express his conclusions. Honig (2021: 44) lends support to this view by indicating that Mueller himself prepared executive summaries of the Report's findings, one of which “identified and detailed eleven separate instances of potential obstruction of justice by Trump”. These summaries were transmitted along with the report that Mueller submitted to Barr, and in the days after Barr's distorted presentation of his own summary, Mueller released a public letter saying the latter did not capture “the context, nature, and substance of this office's work and conclusions” (APR, 2019).

Structural criminology, the RICO statute, and presidential politics

More alarming still are indications that leading figures in the US government were already convinced of the crimes of Manafort and others before the 2016 presidential election. In September of 2016, President Obama had pulled Russian president, Vladmir Putin, aside at the G20 summit in China. According to Isikoff and Corn (2018: 217), “he told Putin, ‘We know what you are doing; if you don't cut it out, we will impose onerous and unprecedented penalties.’”

However, neither Hillary Clinton's campaign team, nor high ranking members of congress, such as Adam Schiff, thought this was sufficient. Schiff (2021: 221) argued the President's warning actually could make the Russian state sponsored cyberattacks a “penalty-free enterprise”. However, neither this critique nor a following four-paragraph statement by Feinstein and Schiff were able to capture the press or the public's sustained attention.

CIA director Brennan was also alarmed. He responded by providing Senate Majority Leader Reid a briefing indicating that:

the intelligence community had concluded Moscow had pulled off the hacks of Democratic targets and the subsequent dumps of documents, and Putin was behind it. Worse, there were indications that Moscow's covert tech operatives might try to mess with election systems and even tamper with the results. Brennen also shared the suspicions within the intelligence community that Trump associates had been in contact with Russians and possibly involved in the Russian clandestine campaign.

Other leaders shared Brennan and Reid's concerns. Homeland Security Secretary, Jeb Johnson, and Director of National Intelligence, James Clapper, joined in efforts to raise public awareness. Isikoff and Corn (2018: 242) note that this was happening in advance of either the White House or intelligence community having grasped that the Russians were also engaged in a social media campaign aimed at American voters.

Isikoff and Corn (2018: 241) report the shared sense of alarm that was overtaking the intelligence community. As Jeb Johnson also recalled, “in the end, we concluded we had to tell the public what we knew … [and] Clapper … argued forcefully for saying something” (Isikoff and Corn, 2018: 241). But again, there was no comment from President Obama attached to the joint statement Johnson and Clapper released on 7 October 2016.

The most explosive part of their statement explicitly said the hacked WikiLeaks and other materials were “intended to interfere with the US election process” and that “only Russia's senior-most officials [e.g. including Putin] could have authorized these materials” (Isikoff and Corn, 2018: 247). However, the warning about the Russian interference was overtaken by the release of the Access Hollywood tape that featured Donald Trump's reports about his groping of women.

Later the same afternoon, a WikiLeaks tweet announced 2000 “Podesta tapes” would be forthcoming. Isikoff and Corn (2018: 251) reported that Podesta and Clinton aides were convinced this was “strategically timed” to distract from “the salacious Hollywood video”. The Clinton campaign counter attacked by saying this was a Putin-inspired “October Surprise”. Yet this claim was soon overwhelmed by excerpts from the Podesta tapes of Clinton delivering paid speeches to Goldman Sachs.

Finally, in the weeks before the election, James Comey reopened the FBI investigation of Clinton's email server. Investigators had discovered Clinton's assistant, Huma Abedin, had shared her laptop containing confidential emails with her estranged husband, Anthony Weiner. The new investigation revealed little, but the final days to the election were ticking away.

Still, the polls showed Clinton leading with a several point advantage, with this lead holding in the all-important swing states. Yet these did not translate into victories in Wisconsin, Pennsylvania, and Michigan, with Trump winning each state by less than one percentage point.

The outcome eerily recalled the 2 August Weissmann interview cited above with Manafort's assistant, Richard Gates:

“Did he name any states?” I asked.

Was this the return on the investment Russian sources had gained from the state polling data they obtained through Kilimnik from Manafort and Gates? Isikoff and Corn (2018: 278) had earlier described a confidential report that circulated inside the Kremlin in June of 2016. It had called “for Moscow to initiate a propaganda campaign on social media and Russian media outlets to persuade U.S. voters to elect a president who would adopt a softer approach toward Russia”. Unfortunately, this report did not circulate in the US intelligence community until after the election.

Disreputable and respectable presidencies

The Dean of American constitutional lawyers, Harvard's Laurence Tribe, recently joined colleagues in suggesting “road maps” for the prosecution of Donald Trump (Tribe et al., 2021). Among the proposals was the RICO Act. They write that a “distinct charge is … ‘RICO,’ which has often been used beyond its original intended target of organized crime”.

Note that this way of indicating the appropriateness of charging Trump under RICO—by observing its use beyond “its original intended target of organized crime”—can be read as obscuring the intention of Cressey's classic essay discussed above. Namely, successful prosecution of criminal organization, when it occurs both in upper-world and under-world settings, requires attacking the characteristic structures of these settings, rather than merely attacking the individuals within them (see Cressey, 1972).

Tribe and colleagues add that to prove a RICO charge, it is necessary to establish that the accused is associated with an enterprise affecting interstate commerce—for example through Daley's mayoral office and Trump's presidency—and at least two racketeering acts. In Daley's case, the latter acts included the torture of the Wilson brothers and Jackie Wilson's wrongful conviction. In Trump's case, Toobin (2020: 142) notes that, in the 2 August meeting with Konstantin Kilimnik, Manafort had concocted a conspiracy “to help Putin, Trump, and himself, all at the same time”. This was an ongoing process. Toobin adds that “the degree of the Russian penetration of the Trump campaign in the summer of 2016 can scarcely be overstated”. By the evening of 6 January 2022, we would learn that the summer of 2016 was only a preliminary signal that worse was yet to come.

Cressey's theory of respectable crime explains the hesitancy of Obama to intervene in the last days of the campaign. Trump benefited from the derived respectability of the office he was nominated to pursue. As Gerald Ford surmised, the public ascribes respectability to even its fallen presidents, which has thus far protected them from serving time “behind bars”. This protective influence is, of course, dangerously dismissive of the notion that in the USA no person is above the law.

Weissmann (2020: 325–326) thought about this when he saw Paul Manafort receive a four-year sentence from a Reagan appointee, Virginia Judge EP Ellis. Both Weissmann and the news media were aware this same judge had previously sentenced Black congressman William Jefferson to a 13-year prison term for accepting US$400,000 in bribes. It was impossible to square this with the unreported millions Paul Manafort illegally extracted in his political deal making in Eastern Europe, much less the evidence of his interference in the 2016 American presidential election.

Our argument is that the nation would have been better served by use of the RICO Act in the prosecutions of both Daley and Trump. The title of the RICO Act—the Racketeer Influenced and Corrupt Organizations Act—by the power of its name—places under-world and upper-world crimes on a more level playing field. Calling the activities of Daley and Trump “racketeer influenced and corrupt” would clearly identify them both as disreputable. It is the refusal to use this terminology that allows candidates and holders of the presidency to unjustifiably cling to a mantle of respectability. Our argument is for a clearer demarcation in the playing field of American criminal justice through use of the kind of theoretical arsenal and prosecutorial weaponry that Donald Cressey conceptualized.