By Richard Fausset and Danny Hakim
For more than 50 years, prosecutors have relied on a powerful tool to take down people as varied as mafia capos, street gangs such as the Crips and the Bloods, and pharmaceutical executives accused of fueling the opioid crisis.
Now a prosecutor in Georgia is using the state’s version of the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, to go after former President Donald Trump, who along with 18 of his allies was indicted Monday on charges of participating in a wide-ranging conspiracy to overturn the results of the 2020 election in Georgia.
One power of RICO is that it often allows a prosecutor to tell a sweeping story — not only laying out a set of criminal acts, but identifying a group of people working toward a common goal, as part of an “enterprise,” to engage in patterns of illegal activities.
Fani Willis, the district attorney in Fulton County, Georgia, is using a RICO indictment to tie together elements of a broad conspiracy that she describes as stretching far outside of her Atlanta-area jurisdiction into a number of other swing states, a legal move made possible by the racketeering statute. Her investigation also reached into rural parts of Georgia — notably Coffee County, where Trump allies got access to voting machines in January 2021 in search of evidence that the election had been rigged.
Signaling its breadth, the indictment brought Monday night laid out a number of ways the defendants obstructed the election: by lying to the Georgia Legislature and state officials, recruiting fake pro-Trump electors, harassing election workers, soliciting Justice Department officials, soliciting Vice President Mike Pence, breaching voting machines and engaging in a cover-up.
“RICO is a tool that allows a prosecutor’s office or law enforcement to tell the whole story,” Willis said at a news conference last year.
Her challenge will be to convince jurors that the disparate group of 19 conspirators charged in the indictment — including a former president and a local bail bondsman, a White House chief of staff and a former publicist for Ye, who changed his name from Kanye West — were all working together in a sprawling but organized criminal effort to keep Trump in power.
State and federal prosecutors have found that they can use RICO laws to effectively make such arguments, and Willis has done it before. So has Rudy Giuliani, one of the defendants, who made his name trying racketeering cases against mafia families decades ago as a federal prosecutor in New York.
Clark D. Cunningham, a law professor at Georgia State University, said the indictment “shows the incredible power brought to bear against Trump by using Georgia’s racketeering law,” noting that in addition to the 19 people charged, it encompassed “as many as 30 unindicted co-conspirators — over 160 separate acts in all.”
But RICO laws have their detractors. Some critics say that the laws have granted too much power to prosecutors, allowing them to indict dubious members of “organizations” that are in some cases barely organized.
“Because RICO is so expansive, and so open, as a tool, it allows people to be caught in its dragnet that are nothing like the people who were originally intended” when the laws were first developed more than 50 years ago, said Martin Sabelli, a past president of the National Association of Criminal Defense Lawyers.
Another potential pitfall for a big RICO case is that it may become too complex for jurors to follow. As Michael J. Moore, the former U.S. attorney for the Middle District of Georgia, put it Monday night: “When you fish with too big a net, you risk getting tangled up yourself.”
Some of the defendants were already accusing Willis of overreaching. A spokesperson for Jeffrey Clark, a former Justice Department official who was charged in the case, said Willis was “exceeding her powers by inserting herself into the operations of the federal government to go after Jeff.”
Trump’s legal team said, “We look forward to a detailed review of this indictment which is undoubtedly just as flawed and unconstitutional as this entire process has been.”
Trump and his allies have argued that their efforts to challenge his 2020 election loss in Georgia were well within the bounds of the law. Indeed, Trump has been laying the groundwork for his defense for months, arguing repeatedly that there was nothing illegal about his now-famous call to Brad Raffensperger, Georgia’s secretary of state, on Jan. 2, 2021.
In that call, Trump told Raffensperger he hoped to “find” the 11,780 votes he needed to win Georgia.
But the RICO indictment forces Trump to push back against a broader allegation — that he was part of a multipronged criminal scheme that involved not only calls to state officials, but the convening of bogus pro-Trump electors, the harassment of Fulton County elections workers, and false statements made by Trump allies, including Giuliani, before state legislative bodies.
In Georgia, RICO is a felony charge that carries stiff penalties: a potential prison term of five to 20 years, a fine or both.