Prosecutors seek a rat in Trumpville

When I was in the U.S. Attorney’s Office many years ago, “the Boss,” Bob Morgenthau, with his characteristically wry grimace, invariably asked his assistants investigating some high-profile conspiracy case, “Who’s cooperating?”

“Cooperating” is a euphemism for finding what the mob calls “a rat.” Indeed, the letters r-a-t are embedded in the word cooperate.

Liberal Washington Post columnist Jennifer Rubin acknowledges that “No matter how reprehensible Donald Trump’s actions as president may have been, obtaining a conviction of a former president in matters relating to the Jan. 6, 2021, assault on the U.S. Capitol, the Mar-a-Lago classified documents scandal and/or his finances is no slam dunk…[that] prosecuting Trump is fraught with risk.”

The prosecutor’s risk is particularly heightened in that no one seems to be willing to rat him out. Not Trump’s former attorney Rudy Giuliani; not his former chief of staff Mark Meadows; not pal Roger Stone; not anyone in a position to tie Trump nice and tidy to the crimes involved in a spate of investigations. A cooperating co-conspirator is the lynchpin of any prosecution, but in Trump’s case, when we reach the scene of crime, the rat just isn’t there.

Conspiracies can be proved by circumstantial evidence and proof of acts, declarations and conduct. Usually it takes a cooperating co-conspirator to take the stand and flesh out the prosecutor’s case. A jury needs a narrative. Sure, it is possible to do it without co-conspirator testimony, but that rarely happens.

Take the Jan. 6 seditious conspiracy/inciting an insurrection case. The circumstantial evidence is there. It is obvious that the Capitol riot was organized, incited and accomplished for the benefit of Donald Trump so he could remain in power.

His own attorney general had told him that his claims of election fraud were “b— s—.” He had invited the mob to Washington; he knew they were armed; he urged them to march on the Capitol; he refused to call them off, going dark for a pivotal three hours.

Many believe it was an attempted coup, but where is the witness to give Situation Room testimony that Trump said, “This is what we are going to do, this is our objective and this is how we do it”? The answer may be that there is no such witness, at least no such witness to come forward, who will “flip” and turn rat.

Trump is known to love the classic movie “The Godfather.” His former lawyer/fixer Michael Cohen testified to Congress that Trump likes the mob style of doing business where he cryptically gives orders and orders are carried out down the line. No emails, no texts, no memos to the file. Cohen said that “Mr. Trump” likes to speak in codes.

Trump requires undivided loyalty of all around him. Take, for example, his longtime chief financial officer, Allen Weisselberg. Weisselberg agreed to plead guilty to tax fraud and testify against Trump’s company, the Trump Organization, but not against Trump.

Weisselberg testified, and a jury convicted the Trump Organization, which was fined $1.6 million, chump change for them, while Weisselberg was sentenced to five months in Rikers Island.

When New York County District Attorney Alvin Bragg decided not to indict Trump for financial fraud, the two chief prosecutors on the case resigned. One of them, veteran prosecutor Mark Pomerantz, has written a book claiming that Bragg botched the investigation.

Bragg has re-activated his case and apparently circled back to his reluctant witness, the jailed Allen Weisselberg. Assuming that, long in the tooth at age 75, Weisselberg may not relish dying in jail, Bragg has signaled new insurance fraud charges initially brought in a civil case by New York’s Attorney General Letitia James, in hope of pressuring Weisselberg to take the stand against Trump. If these charges stand up, it could mean more jail time for Weisselberg while, if he cooperates, he might walk.

But what more could Weisselberg give the prosecutors? Reportedly, Bragg is going after the $130,000 hush money payment to porn actress Stormy Daniels. But this would appear to be ho-hum. Trump made the payment about seven years ago on the eve of the 2016 campaign to cover up an alleged affair that had been consummated 10 years before in 2006.

The payment was not reported as a campaign contribution as technically it had to be if the payment was made to prevent blowing up his campaign for the presidency. The Southern District of New York declined to prosecute Trump on this at the time he left office. According to former federal prosecutor Elie Honig, the feds reasoned that too much time had elapsed, and the case was not strong enough, given that prosecutors would have to rely on Michael Cohen as their witness, and he was just too unreliable.

Weisselberg, who handled Trump’s finances, might know something about the payment, but can he testify that Trump said to him, “I need to keep her quiet because if the affair came out, it might hurt my presidential campaign”? Certainly, Trump would say that he made the payment to avoid embarrassment to himself and his family, not to avoid losing votes in the presidential election.

So, if Weisselberg has the goods on Trump, will he sing? I suspect not. Trump, like any good Godfather, has managed to enshroud his confederates with the Mafia code of omertà, a solemn vow of silence, which means a refusal to cooperate with the authorities.

Bragg has smelled one rat in Weisselberg. But the lurking question is whether Weisselberg will cooperate and rat out Trump.

James D. Zirin is a former federal prosecutor in the Southern District of New York.