Former US President and Republican presidential candidate Donald Trump.
Credit: Reuters Photo
At the heart of the indictment against former President Donald Trump and his allies in Georgia are racketeering charges under the state Racketeering Influenced and Corrupt Organizations Act, or RICO.
Like the federal law on which it is based, the state RICO law was originally designed to dismantle organized crime groups, but over the years it has come to be used to prosecute other crimes, from white collar Ponzi and embezzlement schemes to public corruption cases.
It’s a powerful law enforcement tool. The Georgia RICO statute allows prosecutors to bundle together what may seem to be unrelated crimes committed by a host of different people if those crimes are perceived to be in support of a common objective.
“It allows a prosecutor to go after the head of an organization, loosely defined, without having to prove that that head directly engaged in a conspiracy or any acts that violated state law,” Michael Mears, a law professor at John Marshall Law School in Atlanta. “If you are a prosecutor, it’s a gold mine. If you are a defense attorney, it’s a nightmare.”
Prosecutors need only show “a pattern of racketeering activity,” which means crimes that all were used to further the objectives of a corrupt enterprise. And the bar is fairly low. The Georgia courts have concluded that a pattern consists of at least two acts of racketeering activity within a four-year period in furtherance of one or more schemes that have the same or similar intent.
That means the act might allow prosecutors to knit together the myriad efforts by Trump and his allies, like Rudy Giuliani, to overturn his narrow loss in Georgia in the 2020 presidential race. Those efforts include the former president’s now infamous phone call in which he pressed Brad Raffensperger, the Georgia secretary of state, to “find” him enough votes to win.
At its heart, the statute requires prosecutors to prove the existence of an “enterprise” and a “pattern of racketeering activity.” The enterprise does not have to be a purely criminal organization. In Georgia, the law has been used to hold defendants accountable for a host of different schemes, including attempts by candidates to seek or maintain elected office and efforts by school officials to orchestrate cheating on standardized tests.
The sorts of crimes prosecutors could try to pin on Trump and his allies include solicitation to commit election fraud, intentional interference with performance of election duties, making false statements, criminal solicitation, improperly influencing government officials and even forgery.
The law lays out a list of 40 state crimes or acts that can qualify together as “pattern of racketeering activity.” It is broader than the federal law in that the attempt, solicitation, coercion, and intimidation of another person to commit one of the offenses can be considered racketeering activity. A number of the crimes Trump and his allies are accused of are on the list, including making false statements.
Mears said the law doesn’t require the state to prove that Trump knew about or ordered all the crimes, just that he was the head of an enterprise that carried them out. The main defense for Trump’s lawyers would likely be to show that the various actors did not intend to commit a crime.
The Fulton County district attorney, Fani Willis, has extensive experience with bringing racketeering cases, including some outside the usual crime family realm. She won the case involving public-school educators accused of altering students’ standardized tests. Her office is also currently pursuing racketeering charges against two gangs connected to the hip-hop world, including one led by the Atlanta rapper Jeffery Williams, who performs as Young Thug.
“RICO is a tool that allows a prosecutor’s office or law enforcement to tell the whole story,” Willis said at a news conference in August to announce a racketeering case against the Drug Rich gang.
A person convicted of racketeering under the Georgia law faces up to 20 years in prison and a fine, in addition to the penalty for the underlying crime.