September 14, 2022


Former President Donald Trump is no stranger to legal scrutiny. He was sued federally for the first time in 1973, has faced multiple federal bankruptcy court hearings, has spent much of his business career suing and being sued, and is the only president to have been impeached twice. Trump is currently the focus of two federal investigations, and his company faces criminal and possible civil lawsuits in upstate New York.

But “of all the government investigations currently underway against Donald Trump, the one that gets the least attention may end up being the most consequential,” Michael Barbaro said in a recent episode of the New York Times podcast, The Daily. “And this is happening right now in Georgia,” where Fulton County District Attorney Fani Willis is overseeing a wide-ranging investigation into efforts by Trump and his allies to overturn President Biden’s election victory in Georgia.

Willis plays her cards near the vest. But there is widespread speculation that Willis may be preparing to punish Trump or those close to him with racketeering charges by invoking Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) law. Here’s a look at how the Atlanta District Attorney could be prosecuting the Trump campaign as if it were a criminal enterprise:

What is RICO and how does it work?

When most people think of RICO, “they think of a mob boss overseeing a massive organized crime ring,” wrote a group of legal experts at the Brookings Institution in an October 2021 analysis of the Trump investigation in Fulton County. “Of course, the RICO statutes were enacted with organized crime in mind, but over the past half-century, the federal and state RICO statutes have been used in a broader sense to target criminal enterprises engaged in criminal behavior .”

A RICO law “recognises that if violations of individual criminal laws by a single individual are bad,” the Brookings analysts write, “a company that repeatedly violates the law is worse and should be subject to additional penalties.”

In fact, Rudy Giuliani, who has been identified as the target of this investigation, made a lot of money in the 1980’s using federal RICO law to prosecute some of the most prominent mob families in the New York area. “Times reporter Richard Fausset said in The Daily. “And the idea of ​​RICO is based on the feeling that it can sometimes be very difficult to describe the full extent of a criminal enterprise.” So you need a law that can group different crimes – for example prostitution, racketeering and petty theft – in an organization pursuing the same criminal goal.

The RICO law, enacted in Georgia in 1980, is similar to federal law but is broader in some respects.

Why do people think Willis is considering RICO in this case?

That’s what Willis said when she launched the investigation in February 2021, just weeks after taking office. She is also well acquainted with Georgia’s RICO law — she made her name as the lead prosecutor in a successful 2014 RICO trial of 11 Atlanta public school teachers implicated in a fraud scandal. And in March 2021, she hired John Floyd — a RICO expert who worked with her on the 2014 case when she was assistant district attorney — as a special assistant in her office to work on all racketeering cases.

“I always tell people when they hear the word blackmail that they think of The Godfather,” Willis told the New York Times in February 2021, but “when you’re committing various blatant acts for an illegal purpose, I think you – maybe – get there” with any otherwise legitimate organization.

“I’m a fan of RICO. That’s what I told people,” Willis said in late August as he pressed charges of extortion against a celebrity-targeting Atlanta gang. “And the reason I’m a RICO fan is because I think juries are very, very intelligent. Some people don’t want to serve on juries, but once they get there we find that they’re really good citizens there.” “Very smart and perceptive. You take these things seriously. But they want to know the whole story. They want to know what happened.”

How could Georgia’s RICO law affect Trump’s campaign?

“With RICO, you establish that idea of ​​a criminal enterprise,” and the different “parts and parts of the organization don’t necessarily all need to be talking to each other or knowing the exact shape of the whole thing, but they are.” furthering the criminal enterprise’s criminal goal,” explains Fausset in The Daily. In the case of the mafia, it’s pretty easy to see how that works — prostitution, gambling, drugs — and if Willis is really putting together a RICO case here, “the idea is supposedly that the criminal enterprise in this case is running the Trump campaign.” is.” itself.”

“There are two potential ‘corporations’ within the meaning of the RICO statute here: the Trump campaign and the presidency itself,” the Brookings analysts write, and “use of either or both of these positions to engage in a pattern of extortion activity could be a …” RICO fee.”

“In our estimation,” they state, Trump could be held responsible for a number of crimes in Georgia, including “(1) false statements and writings; (2) solicitation of false statements and writings; (3) prompting false curses; (4) influencing witnesses; and (5) soliciting computer abuse.” All of these can be used to prove RICO cases, the Brookings team adds, and “evidence of at least two of them could establish a pattern of fulfill extortion activities.”

We know Willis is investigating the plan to nominate 16 fake Trump voters claiming to represent Georgia, Giuliani’s allegedly false statements to Georgia lawmakers, the tampering with voting machines in rural Coffee County, and the abrupt removal of US Attorney Byung Pak, after refusing to advance discredited voter fraud cases and phone calls made by Trump and his allies to Georgian officials, most notably Secretary of State Brad Raffensperger.

The secretly recorded phone call in which Trump asked Raffensperger to “find 11,780 votes” — more than Biden’s lead of 11,779 votes — is the crown jewel in Willis’ case, former federal prosecutor Gene Rossi told Vice News. “I think the most damning piece of evidence is still the phone call in which Trump asked for a certain number of votes to be determined.”

Could a Local Georgia District Attorney Really Overthrow a Former President?

Legally yes. “We conclude that Trump’s post-election conduct in Georgia exposes him to a significant risk that the state may face charges of multiple crimes,” including “a prosecution under the state’s RICO statute,” the analysts conclude from Brookings. “Moreover, this would not be the first RICO prosecution involving officials” in Georgia, including a chief of the state Department of Labor whose RICO conviction – similar to the case against Trump – was upheld by the state Supreme Court.

“In our federal system,” the “states have both primary responsibility and authority to make decisions about matters within their jurisdiction,” reads the Brookings analysis. “After cleared Supreme Court precedent (including the recent Trump vs. Vance case), Georgia state prosecutors certainly have the authority to investigate and indict a former president for willfully trespassing on their jurisdiction to allegedly violate their Violating laws and interfering with their officials is a matter of paramount state interest: the administration of electoral processes in Georgia.”

“We have seen so many times how President Trump could shirk any kind of responsibility for behavior that people found questionable, if not illegal,” Fausset says in The Daily. “But in the case of the Georgia investigation, the potential defendants will be faced with Georgia law,” and “Local law is very clear on issues such as soliciting voter fraud in the state of Georgia.” They are.” Buried in a big law book that only Georgia attorneys really know about.”

“But they are there. And they’re very real,” adds Fausset. “And if that local prosecutor turns out to end up indicting President Trump or initiating a successful trial against President Trump, I think that will say a lot about how our legal system works in this country where we “automatically think” that.” federal law “exists at a higher level than local law”.

Will Willis really try?

“I think she’ll be able to take a case,” and honestly, “it’s not a complicated case,” Page Pate, a Georgia criminal defense attorney who has known Willis for years, told Vice News. “She’s not going to go through any of this unless she has a probable reason to keep going.”

It’s not entirely up to Willis, notes The Guardian. Her special grand jury can remain in office until May, but can only produce a report recommending a prosecution, and the case would then — if Willis agrees — go to a regular grand jury for possible indictments.

“An investigation is like an onion,” Willis said in February 2021. “You never know. You pull something back and then you find something else. … Anything relevant to attempts to disrupt the Georgia election will be subject to review.

And in some ways, it would be easier for Willis to prosecute Trump, Fausset argues. “For someone like Merrick Garland, the Attorney General, he was appointed by Joe Biden. And we’ve seen over the past few days and weeks how the Justice Department’s concerns about pursuing Trump and others have had a very dramatic impact on one of those other investigations into their key political rivals.

“Well, Fani Willis, the district attorney for Fulton County, doesn’t have to deal with things like that,” adds Fausset. “She’s a Democrat. She is an elected officer. But their actions are not necessarily scrutinized in the same light as those of someone like the Attorney General or the Justice Department. She’s just an attorney trying cases in a courthouse pretty far from Washington.”

“It kind of comes back to what she said before, ‘I don’t like bullies,’ and the fact that she’s this classic, old-school prosecutor,” Fausset said. “I think she’s someone who believes there should be consequences for people who break the laws of the state of Georgia. And you can just see how that presents a very unique sense of potential danger to President Trump and those around him.”