Fani Willis, the Fulton County District Attorney investigating attempts to overturn Georgia’s 2020 election, is expected to present her case to a grand jury next week.
Most of Willis’s investigation is likely to overlap with Jack Smith’s own federal investigation into attempts to overturn the election.
However, Willis’s case is expected to differ in one key respect from Jack Smith’s.
This law would give Willis wide discretion in framing her trial against the former president.
Legal experts have suggested that if Willis charges Trump and his allies, she could potentially charge them under Georgia state’s RICO law. This law would give Willis broad discretion in framing her case against the former president — discretion not enjoyed by any other prosecutor currently pending a case against Trump.
RICO typically refers to the Racketeer Influenced and Corrupt Organizations Act, a federal law that the Justice Department has long used to prosecute organized crime. However, many states have adopted their own versions of the RICO federal law.
Georgia passed its RICO statute in 1980, shortly after the federal government filed its first case under the federal statute. At this time, Atlanta was experiencing a rise in crime. Last year, the governor of Georgia dispatched state troopers to Atlanta as part of the state government’s efforts to crack down on crime.
By the time Georgian legislatures were passing their own laws, state legislatures were already popular for tougher crime-fighting measures that gave prosecutors broad powers. Legal scholar Norm Eisen described the passage of Georgia’s RICO law to the New Yorker as follows:
Georgia created its Rico statute in 1980 less to target the mafia and more to prosecute black street gangs and “non-traditional conspiracies,” as Norman Eisen, a former trial attorney and senior fellow at the Brookings Institution, put it to me. (The Georgia congregation referred to the need to address “the increasing sophistication of various criminal elements.”)
As a result, Georgia’s RICO law gave prosecutors far broader powers than federal law. Atlanta Magazine described the differences as follows back in June:
A federal case requires proof of both a corporation and a crime committed by that corporation. However, a case in Georgia could be brought against an individual committing related crimes — even without a corporation.
Fani Willis could use Georgia’s RICO law to integrate a broader range of measures by Trump and his allies to try to overturn the Georgia election. And it would not have to be limited to proving specific crimes personally committed by the former president and his allies.
There’s reason to believe Willis is preparing to do just that.
During her tenure as District Attorney, Willis brought forward several high-profile RICO cases. In 2013, Willis used Georgia’s RICO statute to indict Atlanta teachers who conspired to tamper with standardized test scores.
She recently used the law to indict hip-hop artist Young Thug and 27 associates for their alleged involvement in murder, armed robbery and drug trafficking.
In March 2021, Willis hired John Floyd, an expert on Georgia’s RICO statute, to assist in several cases, possibly including her investigations into the 2020 election. Floyd also assisted Willis in filing her RICO lawsuit against the Atlanta teachers.
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Willis has also told reporters in the past that she is a “fan of RICO” as a tool for prosecutors.
Should Fani Willis choose to use this “tool” to bring charges against Trump, it could set her case apart from those already brought against the former president.
This is an adapted excerpt from the August 9 episode of “Alex Wagner Tonight.”
