In charging former President Donald Trump and 18 co-defendants in a sprawling 41-count indictment, Fulton County District Attorney Fani Willis resorted to a familiar tool.
From prosecuting school teachers to street gangs, it hasn’t been unusual for Willis to invoke Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act throughout her career – but this time the former president is a remarkably unusual defendant.
“That’s a way to catch the big fish by going from the bottom up and kind of charging the whole pond,” Atlanta defense attorney Tom Church, who is not involved in the prosecutor’s case, told ABC News.
Since taking office as Fulton County District Attorney, Willis has praised the law’s versatility to “tell the whole story of a crime” and has, in her own estimation, prosecuted an unprecedented number of cases using the law. Two years ago, she also hired John Floyd, a veteran lawyer who literally wrote the book on Georgia’s RICO laws, to help with the Trump investigation, signaling how she might pursue the case.
Unlike the 1970 federal RICO law, which sparked the prosecution of some of the largest organized crime families, Georgia’s RICO law largely mirrors federal law with notable changes that expand prosecutors’ ability to charge defendants, according to several legal experts who spoke to ABC News.
Why does Georgia have its own law against illegal crime?
According to Clark D. Cunningham, a professor at Georgia State University College of Law, the federal RICO law arose out of concern that criminal organizations could not only do more harm to communities than individuals, but would also be harder to prosecute.
“They felt that going after individual offenders was a bit like the game of gophers, where you knock one thing down and another comes up,” Cunningham said.
As federal prosecutors made progress in combating organized crime, state legislatures took note and began drafting federal legislation. Georgia passed its own law in 1980.
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To be charged with a RICO offense in Georgia, a defendant must have allegedly committed or conspired to commit two related crimes – so-called racketeering or predicate crimes – often as part of a larger criminal scheme, according to Chris Timmons, a 17th Circuit trial attorney He spent years trying RICO cases as a prosecutor with the DeKalb and Cobb County district attorneys’ offices.
Timmons said Georgia law allows prosecutors to charge only one defendant in a criminal scheme and does not require an extended time frame for the crime, giving prosecutors greater leverage over individual actors.
“Someone could go to JC Penney, steal one pair of socks, go next door to Sears and steal a second pair of socks, and they could be charged with RICO,” Timmons said.
However, most RICO cases involve larger litigation involving multiple defendants. Therefore, prosecutors tend to take a similar approach when building a case.
“You work your way up the food chain,” Cunningham explained. “You start pretty low down with people…and so you have a lot of influence to bring about collaboration.”
How did prosecutors use the RICO laws?
In the years following the passage of the federal and Georgia RICO laws, Georgia prosecutors began using the law to prosecute cases against officials, Cunningham said.
In 1984, prosecutors accused Georgia’s labor commissioner and several Labor Department employees of racketeering. The prosecution ultimately convicted the labor commissioner of conspiracy to commit fraud.
As federal law developed in the 1990s, Floyd began refining Georgia’s law through several notable cases.
When Richard Hyde, then a Georgia state investigator, was thinking about how to prosecute fraud at the Medical College of Georgia in 1996, he turned to Floyd after reading about the lawyer’s unique approach to extorting fraud. Hyde described Floyd as a “terrifyingly smart” but “humble” lawyer and credited Floyd with helping successfully convict two faculty members who prosecutors accused of stealing $10 million in research funds.
Kent D. Johnson/Pool via AP, FILE
“He’s the one lawyer I never want to be on the other side of,” Hyde said.
In 2002, Floyd successfully helped convict former DeKalb County Sheriff Sidney Dorsey of murder and racketeering after Dorsey ordered the killing of a political opponent who defeated him in a 2000 election.
In 2014 and 2015, Floyd and Willis notably collaborated in the RICO prosecution of 35 educators involved in a scheme to alter test scores in the Atlanta public school system. The eight-month trial ultimately led to the conviction of eleven of the twelve defendants.
“He explained to Rico in such a simple way that an 8-year-old could have understood,” said Clint Rucker, who tried the Atlanta public school case with Willis and Floyd.
Rucker said Floyd’s “laser-sharp” analysis and “professor-like” understanding of RICO not only helped the Fulton County prosecutor figure out how to bring RICO charges in the case, but also convinced the jury, according to Rucker to condemn these accusations.
Floyd rejoined the Fulton County District Attorney’s Office in 2021 as a consultant in the Trump investigation.
What challenges might arise in an extortion case?
In recent years, federal prosecutors have used the RICO statutes in notable cases, including against former Detroit Mayor Kwame Kilpatrick and against some defendants in the so-called “Varsity Blues” case, which involved bribery of coaches and other officials Elite universities went.
Some RICO cases require proof that the defendant benefited from obtaining money or property — which Church said could be challenging in the Trump case.
“This isn’t about money, it’s about power,” Church said.
Additionally, while the RICO charge gives a prosecutor the opportunity to describe a more complete picture of criminal activity, describing that activity to a jury takes time.
The trial in the Atlanta public school case lasted eight months, in addition to a six-week jury selection period.
“It wouldn’t surprise me if they had almost the same timeline for the Atlanta public schools case,” Rucker said of the timeline for the Trump case, adding that jury selection for the former president’s case was particularly challenging could represent.
And for a successful conviction, prosecutors must assemble the equivalent of a puzzle box of evidence to prove beyond a reasonable doubt that the defendants were involved in criminal activity.
“What a RICO prosecution does is it requires a lot of different pieces, strange shapes and different colors that may seem unrelated to each other,” Cunningham said. “If the prosecution is successful, the jury says, ‘Oh my God, I see the picture… I see a huge conspiracy here.'”