This week’s Note from Elie is an excerpt from his new book, Untouchable: How Powerful People Get Away With It. 

Frank Hydell had no idea that the beer he drank at Scarlet’s strip club in Staten Island on a cool spring night in 1998 would be his last. It was, he believed, just a casual, two-guys-with-nothing-better-to-do Monday night out. John Matera, Hydell’s longtime pal, had called early that evening and proposed they grab a drink at the club. Hydell, then thirty-one years old, half-heartedly agreed. He hardly even bothered to get dressed, wearing navy-blue sweatpants and white sneakers to the scene of his own murder.

Inside Scarlet’s that night, Hydell and Matera took a table and ordered some beers. At one point Matera got up and made a call from a pay phone. Around midnight, seeing that things were headed nowhere in particular, Hydell called it quits. He gathered up his wallet and keys, walked out to the parking lot, and opened the driver’s-side door of his white Camry. 

There’s no way to know whether Hydell ever saw Eddie Boyle coming. Either way, it all happened too fast for Hydell to resist or even react. Hydell knew Boyle from the streets. Both hovered on the periphery of the Gambino family. Boyle was a “capable” guy (capable of violence, that is, in mob parlance), while Hydell was a bit player who dabbled mostly in after-hours bank burglaries. That night in the parking lot at Scarlet’s, Boyle strode briskly up to Hydell, pulled out a .357 Magnum revolver, and shot him three times in the head and chest. Hydell fell dead to the asphalt next to his car, driver’s-side door still flung open.

When I first met Ted Otto in 2006, he was obsessed with the Hydell murder. Otto, a brilliant, incorrigible, relentless FBI special agent with the Queens-based Gambino squad, had investigated and solved plenty of mob cases over his career, often deploying unorthodox techniques. He once typed up pages of phony transcripts, put them in a binder, and showed them to a Gambino soldier to try to convince him that we had been wiretapping his phone and he needed to flip; didn’t work, but it was a hell of an effort. Otto was a world-class pain in the ass—beloved by prosecutors, tolerated with a wince by his FBI supervisors, despised by the mob. Think Detective Jimmy McNulty from The Wire, only with reddish-blond hair.

Despite Otto’s many investigative successes, the Hydell murder gnawed at him. Maybe it was the sheer cold-bloodedness of the Gambino family mobsters who plotted Hydell’s death, who exploited the cover of Matera’s friendship to lure him to Scarlet’s and execute him in the parking lot. Perhaps it was that Hydell was targeted because he had begun to cooperate with the FBI, providing valuable information about crimes committed by other gangsters right up until he was silenced. It could have been that Otto refused to accept the unimaginable grief of Hydell’s mother, who found herself mourning the loss of a second child to the mob; her older son, James, had been lured to his death at the hands of a different Mafia family, the Luccheses, twelve years earlier, in 1986. Whatever it was, the Hydell murder bothered Otto so deeply, and for so long, that he carried in his own wallet a funeral card bearing Hydell’s image.

Over time, Otto doggedly chipped away at the Hydell murder. I worked with him as the lead prosecutor during the latter phases of this effort. A few years before I got involved, Otto and a team of my colleagues at the Southern District of New York (SDNY) got their first break when they flipped powerhouse Gambino family captain Michael DiLeonardo (known on the streets as “Mikey Scars,” referring to facial scars he had sustained as a child from a dog attack).

The mob was in DiLeonardo’s blood. He was the grandson of a Sicilian-born member of the original “Black Hand” faction of Italian immigrants to the United States that staked its claim to criminal dominance in Brooklyn in the early 1900s. As he rose through the Gambino family, DiLeonardo excelled across the criminal spectrum. He was an “earner and a burner,” in the parlance: he brought in millions through construction rackets, and he could hand out a beating, or worse, as necessary to intimidate or eliminate anybody who posed a problem. His decision to flip, when faced with a slate of charges that threatened to keep him behind bars for the rest of his life, sent tremors through the mob world.

When he started to cooperate, DiLeonardo gave prosecutors and the FBI reams of information about countless crimes that he and others had committed over decades. Ultimately, he would testify in a dozen trials and contribute to the convictions of about eighty gangsters. But when it came to the Hydell murder, DiLeonardo had only a few precious dribs of actionable information. Most importantly, a fellow Gambino family member, Thomas Carbonaro, once told DiLeonardo that he had driven the shooter, Boyle, to and from the Hydell hit. Carbonaro also boasted that they had enlisted Matera to lure Hydell to the scene and to alert the hit team that the target was in place, through that pay-phone call from inside Scarlet’s.

After years of investigation, Otto and the team started to get results in court. Based largely on DiLeonardo’s information, the SDNY charged and convicted Matera (who admitted he was part of the conspiracy to kill Hydell, pled guilty, and received a sentence of twenty years), Carbonaro (who was convicted of plotting to kill Hydell, among many other crimes, and sentenced to seventy years behind bars), and even DiLeonardo himself (as part of his cooperation agreement, he pled guilty to murder conspiracy for passing word within the Gambino family about the plan to kill Hydell, and other crimes).

Later, when I joined the SDNY’s Organized Crime Unit, we charged and secured guilty pleas from two other Gambinos, Tommy Dono and Lenny DeCarlo, who were at the scene of the murder in the designated “crash car.” (It’s common Mafia practice to have a nearby car waiting to create a diversion if the actual hit man’s getaway car encounters any trouble. If, for example, a police officer had stopped or pursued the shooter’s getaway car, then the Dono-DeCarlo car would have crashed into something to pull focus and allow the assassin to get away.) Both were sentenced to fifteen years in prison. 

Eventually the SDNY charged and tried Boyle, the shooter. The jury, somewhat bizarrely, found Boyle not guilty of murdering Hydell but guilty of racketeering conspiracy charges—meaning that Boyle was part of the Gambino family, and knew that the family was involved in multiple crimes, including murder. The judge sentenced Boyle to the maximum of twenty years, specifically finding at the sentencing hearing that he had in fact killed Hydell. (This can and does happen in our criminal justice system; even if the jury acquits a defendant on a particular count, the judge still can find at sentencing that the charge was proven by a “preponderance” of the evidence—essentially, more likely than not—and sentence accordingly.)

Sounds like a clean sweep, or nearly that. All the main players who carried out the murder of Hydell that night in the parking lot at Scarlet’s were charged, convicted, and sentenced to prison terms, though some of them ultimately felt a bit light. Fifteen or twenty years is a long time behind bars, but didn’t seem fully adequate for such a cold-blooded, premeditated murder.

But even after all these convictions, there was still one thing we couldn’t ignore, one thing that simply had to be true: Daniel Marino—Hydell’s own uncle, married to his mother’s sister—was behind it all. (This Dan Marino was, of course, not the rifle-armed Miami Dolphins quarterback from the 1980s and ’90s, but the cold-blooded Gambino family powerhouse from the past six decades.)

We knew Marino had to have been involved, purely by dint of his position near the top of the Gambino family and his familial relationship with Hydell. Indeed, according to DiLeonardo, when he learned that Hydell was cooperating with the FBI and would need to be eliminated, he sent word to Marino, who was then in federal prison in Pennsylvania. (This is why, years later, as part of his cooperation deal with the SDNY, DiLeonardo pled guilty for his part, small as it was, in the murder conspiracy.)

As a savvy mob veteran, DiLeonardo recognized that nobody could put hands on Danny Marino’s nephew, never mind kill him, without Marino’s blessing. To kill Hydell without permission would land any gangster squarely in Marino’s own crosshairs—a place nobody wanted to be, not even a powerhouse in his own right like DiLeonardo.

So, DiLeonardo told us, he instructed an intermediary to go discuss the matter with Marino. DiLeonardo couldn’t go himself because he wasn’t on Marino’s list of approved prison visitors. In any event, it would have been too conspicuous to have two notorious Gambino family leaders sitting together chatting in the prison’s visiting area.

The intermediary took the order. Weeks later, he reported back to DiLeonardo that, during the in-person prison visit, he told Marino that Hydell was a “rat.” Marino showed little reaction other than to ask, “Are you sure?” The intermediary confirmed that yes, the Gambino family was sure. “Do what you have to do,” Marino responded flatly. He never specifically said “Kill him”—powerful mobsters typically don’t need to be so explicit—but his meaning was plain to all involved.

To be clear: this isn’t much to go on in terms of a criminal charge—never mind a murder conspiracy charge against one of the most powerful, wealthy, and feared members of the mob. It was a convoluted game of whisper-down-the-lane, hearsay-upon-hearsay (the type that can be legally admissible but isn’t supremely persuasive to a jury). And the star witness would be DiLeonardo, a self-professed criminal, without meaningful corroboration from other witnesses or documents or recordings.

Further complicating matters, Marino didn’t pull the trigger, and wasn’t even at the crime scene; heck, he was locked up in another state when the hit went down. The entire crux of the case would come down to nine words, give or take—“Are you sure?” and “Do what you have to do”—uttered during a jailhouse visit. But federal law enabled us to charge Marino as part of a broad conspiracy to commit the murder (a conspiracy is really just an agreement to commit a crime), and we knew that the hit never could have happened without his permission. He was, after all, the most powerful person involved. He was a boss.

As the prosecutor on the case, I asked myself countless times: Did we have enough to charge Marino? Maybe, barely. But was it enough to prove the case to a jury, unanimously and beyond a reasonable doubt? Even I had to acknowledge, in my heart of hearts: probably not. Otto was characteristically a bit more gung-ho, but he recognized that it was an uphill climb.

Ultimately, Otto and I decided to give it a shot. (We tended to mutually reinforce one another’s more aggressive instincts, for better or worse.) We charged Marino, who was then seventy years old, with conspiracy to murder his nephew, Hydell. We knew our case was shaky. We knew that Marino and his attorney—one of the best criminal defense lawyers in the country, Gerald Shargel—knew that too. But we also knew trial would present enormous risks to both sides. An acquittal would be a devastating blow to Otto, to me, to the SDNY, and, most importantly, to the Hydell family. But a conviction would land Marino behind bars for the rest of his life.

As trial approached, Otto and I scrambled to bolster our case. We tried to flip Matera and the intermediary who spoke with Marino in prison, without success. (We actually had the US Marshals transport Matera back to New York from the prison where he was serving his time; he met with us, and was quite open about his role in setting up the murder, but politely declined to cooperate against anyone else.) We canvassed our stable of Gambino family cooperators, but none had any usable information. When Otto and I talked to one new Gambino cooperator, we asked him eagerly if he knew anything about the Hydell murder. “I’d love to be able to help you with that, but I just don’t have anything on it,” he replied, instantly deflating us. As time passed and the trial approached, it became increasingly clear that we needed to get to the bargaining table and work out a deal.

In the end, we agreed to a guilty plea that would send Marino to prison for—and I still cringe even now, years later, as I write this—five years. The judge on the case was thoroughly unimpressed. When he saw our proposed plea deal, he took the rare step of publicly expressing dissatisfaction and making us explain on the record why we believed it was justified. In one of my least glamorous court appearances, I stammered through an explanation that boiled down, in essence, to “This is the best we can do.”

To this day, I have regrets about the Marino case. It still bothers me. I feel like we let him off too easy. The rational part of me understands that it was a minor miracle that we scraped up enough evidence and had the guts even to bring a charge against him in the first place. Five years isn’t nothing, and partial justice is preferable, after all, to no justice at all. But it never felt right, or adequate. Marino took his plea, did his time, and was released from prison in 2014. At this moment, he is still alive at eighty-one, still wealthy, still a Gambino, and as free as you and me.

So how did Marino do it? How did he end up with the lowest sentence, by far, of all the people involved in the Hydell murder? Marino’s approval was absolutely necessary for the hit to go down, a condition precedent, yet every other participant got at least a decade longer behind bars. The man authorized the murder of his own nephew, and he did just five years (less, actually, because federal inmates get 15 percent off their sentences for good behavior in prison).

Ever since I prosecuted the Marino case, this conundrum has plagued me: How did the most powerful person get off the easiest? 

***

That question has become even more resonant, and more broadly applicable, over the past half decade. Through my work in the media, I receive questions constantly from viewers and readers. The most common by far is this: “How the hell does he get away with it?” The “he” can vary, but it always refers to somebody who is powerful, or rich, or famous, or some combination of those things—and it’s almost always a “he.” The most frequent subject of inquiry, by a lot, is the former president of the United States: Donald J. Trump.

Few if any people in American history have flouted the law in as many ways, over as many years, in as public a manner as Trump has. He has been impeached twice, tried twice in the Senate, and acquitted both times. He has been sued, subpoenaed, and deposed dozens of times. He has been the subject of countless adverse findings in reports issued by prosecutors, judges, Congress, and other investigative bodies. But as of this writing, Donald Trump has never been charged with a crime. His rap sheet is blank.

That could change, of course. Given several long-pending investigations, some prosecutor at some level might finally take a shot. In my view, the Fulton County, Georgia, district attorney is the most likely to indict Trump, perhaps even by the time of this book’s publication in early 2023. But the prime opportunities to hold Trump criminally accountable for his actions have passed. Prosecutors, federal and state alike, have fumbled away their best chances and inexcusably allowed years to lapse without meaningful action. And, as we’ll examine throughout this book, Trump has long displayed an uncanny ability to exploit the advantages afforded by our criminal justice system to powerful people in general, and the president in particular. At this point, the cold reality is that Trump is unlikely ever to be convicted and imprisoned, even if he eventually does face a criminal charge.

For years this one extraordinarily powerful man, unburdened by ethics, shame, or even a logical sense of self-preservation, has floated above the law, often while pissing down on it—first as president and then, more confoundingly, as a private citizen stripped of the unique protections afforded only to the sitting occupant of the Oval Office. He is a lawless Houdini, repeatedly escaping (and at times being rescued from) the clutches of law enforcement. Meanwhile, a staggering parade of his henchmen and personal, political, and business associates have been indicted, and in many instances convicted and imprisoned: Michael Cohen, Roger Stone, Paul Manafort, Michael Flynn, Steve Bannon, Peter Navarro, Rick Gates, George Papadopoulos, Lev Parnas, Igor Fruman, Elliott Broidy, Sam Patten, George Nader, Allen Weisselberg, and the Trump Organization itself.

Yet the boss somehow stands at the epicenter of the carnage, untouched, undeterred, and, if anything, emboldened. Picture the famous scene from the old black-and-white movie Steamboat Bill, Jr., where the facade of a house blows loose in a windstorm and collapses, seemingly about to crush the character played by Buster Keaton—yet as the building falls around him, he miraculously escapes unharmed, standing in a void created by an open window. 

Trump is hardly the only powerhouse in recent memory to get off easy. We’ve seen other giants of politics, finance, and entertainment either skirt the law altogether or escape with meager punishments. In some instances, justice came about belatedly and imperfectly, only after intense media scrutiny focused on the prosecutors and police who’d initially given their powerful subjects a generous pass. In other cases justice never arrived at all. Not every boss gets away scot-free, of course. Many crooked kingpins, billionaires, politicians, and CEOs have faced meaningful accountability in the criminal courts. But on the whole, powerful people tend to fare better in our criminal justice system than normal folks, if they even wind up in court at all.

On some level, it’s obvious how this happens. The rich and powerful get away with things that an ordinary person can’t. It’s a truth so widely accepted as to be axiomatic. But consider: How exactly do they pull it off? If you suddenly had vast power and limitless resources, how would you go about protecting yourself? Would you know where to start in your (hypothetical) quest to insulate yourself from prosecutors and cops? You need more than money, fame, and power. You need to know how to use those resources the right way. And once you know how to exploit those advantages—once you start to think like a boss—you can shape the world around you.

On the flip side, how do we hold accountable those people who know how to game the system? The best place to start is by understanding the tactics of the powerful and the ruthless. Any decent prosecutor learns—over many years, often by painful firsthand experience (like mine in the Marino case, and others that we’ll examine)—that bosses can wreak havoc in our criminal justice system. So we need to get inside the heads of the savviest kingpins, and turn their tactics against them.

For example, I worked on a case involving a large labor union that was under the control of the Genovese organized crime family. We knew from experience that the moment we served subpoenas on the people who were being shaken down through the union, the family’s leadership would spring into action, tampering with the victims to keep them from telling us the full truth. 

We also knew they’d likely discuss those plans at a specific place: the back corner table at Don Pepe’s restaurant in Queens, where the powerful Genovese captain who controlled the union regularly held court with his fellow gangsters every Tuesday and Thursday over plates of whatever was good that night. (I learned over the years that a real gangster never orders off the menu; you just walk in and say to the server, “What are we eating tonight?”) So before we sent out the subpoenas, we got court permission to wiretap the key mob players’ phones and have the FBI drop a bug—a hidden recording device—within the actual table where they ate, in that back corner at Don Pepe’s. We then served the subpoenas, sat back, and listened. Sure enough, we immediately started picking up conversations in which the Genovese family players explicitly discussed their plans to thwart our investigation—“Make sure that guy doesn’t talk to the feds,” “We need him to say he never paid,” and the like, all audible over the clatter of silverware and chewing of food. Those wiretaps enabled us to charge the mobsters not only with the union shakedown but also with witness tampering and obstruction of justice. It was like throwing bread crumbs into a lake and then scooping up the fish as they bubbled to the surface. Prosecution doesn’t always lend itself to such tidy solutions, of course. But there are countless ways prosecutors can use creativity and aggression to topple even the most ruthless criminals.

I don’t aim here to diagnose or cure all the ills of inequality in our justice system; libraries have been written on this sprawling subject, and there is, of course, no magic bullet. But a careful examination of recent legal sagas around Trump and other powerful players can help us identify and understand how they try to exploit fundamental flaws (or perhaps features) of our legal system and the people who hold power within it.

I was one of those people. I worked for fourteen years as a federal and state prosecutor, from 2004 through 2018. I spent eight-plus years with the US Attorney’s Office for the Southern District of New York (SDNY), where I eventually became co-chief of the Organized Crime Unit, and then five and a half years at the New Jersey attorney general’s office, where I led over five hundred prosecutors, detectives, and staff at the Division of Criminal Justice. That experience certainly hasn’t given me all the answers. But it enables me to understand the criminal justice process and the human element of it—the power dynamic between prosecutors, cops, defense lawyers, defendants, and judges, the culture inside prosecutors’ offices and courthouses, and the impact of politics, money, the media, and other outside influences on prosecutorial and judicial processes.

In chapter 2 of this book, I report for the first time on the behind-the-scenes story of the investigation by my former office, the vaunted SDNY, into hush money payments that Trump and his associates made shortly before the 2016 election to silence two women, former Playboy model Karen McDougal and adult film star Stephanie Clifford (screen name Stormy Daniels), who had allegedly had sexual affairs with Trump. In the end, somehow, the SDNY ended up charging only one person: Michael Cohen, the attorney who essentially served as a bag man in the scheme. While Cohen went to federal prison, Trump managed not only to avoid criminal charges but also to take on minimal political damage—with help from the bosses at Justice Department headquarters, who forced SDNY prosecutors to remove crucial information about Trump from their public legal filings.

As we’ll see, the SDNY’s hush money prosecution of Cohen offers a case study on how powerful people—particularly the president—get away with it, often while others around them don’t. In retrospect, we can see how, if conditions had been a little different and if key players (including prosecutors) had made different decisions, Trump might have faced justice (or at least meaningful consequences) years ago. 

“Justice is blind,” we are taught in law school, and reminded often. But if you look at the statue of Lady Justice as she holds the scales of justice in her hands, you’ll notice that she’s not actually blind. She wears a blindfold. Occasionally, it turns out, she takes a peek to see who’s in front of her. But as much as the institutional deck is stacked in favor of powerful, wealthy, famous people, all is not lost. This is no defeatist eulogy for our justice system. This is, rather, a guide to navigate it. If we understand how bosses exploit systemic vulnerabilities, then we can meaningfully call upon the people who make the big decisions—primarily prosecutors—to fight back and pursue justice, no matter how daunting the challenge.

Get your copy of Untouchable: How Powerful People Get Away With It here.

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