A Georgia state law against racketeering could be a powerful tool in prosecuting Donald Trump, but applying charges traditionally used to take down organized crime risks miring the case in legal and logistical complications.
Fulton County District Attorney Fani Willis on Monday charged the Republican former president and 18 associates in a wide-ranging scheme to reverse his 2020 presidential election loss in Georgia to Democrat Joe Biden.
Originally designed to take down mafia bosses, RICO charges are now broadly used to go after groups of loosely associated people bound only by their common participation in a criminal enterprise. But casting such a wide net has drawbacks.
“You can tell a great story in your indictment, and you might be able to prove it. But you also might be making it more complicated,” said former federal prosecutor Harry Sandick.
Echoing his criticism of the many other investigations he has faced, Trump assailed the indictment as a political “witch hunt” and accused Willis, an elected Democrat, of trying to sabotage his 2024 presidential comeback bid.
By contrast, U.S. Special Counsel Jack Smith this month charged only Trump in a four-count indictment of conspiring to defraud the U.S. by preventing Congress from certifying Biden’s victory. The case cites six co-conspirators who are unindicted and unnamed.
Smith has asked that a trial begin as soon as Jan. 2. Willis faces a longer road.
She has said she aims for a trial in the next six months, but experienced lawyers expect the case to almost certainly be delayed due to the sheer number of defendants, each of whom is likely to raise a unique set of pre-trial issues.
“The problem with RICO is that it takes a lot longer because there are so many more elements to it,” said Jerry Froelich, a Georgia criminal defense attorney and former prosecutor. “I don’t know if you could even find a courtroom big enough for 19 defendants.”
But the numbers may also work in prosecutors’ favor.
In RICO cases, defendants are often loosely associated, making it easier for prosecutors to get them to “flip,” or turn on one another.
“That’s why the net is spread so wide,” Froelich said. “There’s going to be a lot of pressure on people to cut deals.”
RICO also enables prosecutors to charge defendants for so-called “overt acts” that would not necessarily be criminal on their own but are part of a larger conspiracy.
Willis’ 98-page indictment is thin on narrative detail, but it lists 161 overt acts by the defendants that allegedly demonstrate how they “willfully joined a conspiracy to change the outcome of the election in favor of Trump.”
Some of those acts – including Trump’s social media posts and meetings with elected officials – are not inherently criminal.
“It’s going to be a challenge – though certainly not an insurmountable one – for prosecutors to prove these individuals knew they were part of an enterprise that had a common, illegitimate aim of overturning an election,” said Boston College law professor and former federal prosecutor Jeffrey Cohen.
Georgia’s RICO statute is more expansive than a federal law on which it is modeled and does not require criminal enterprises to be long-running. Georgia courts have upheld the law’s use in novel contexts that include Willis’ successful prosecution of teachers who falsified scores on standardized tests.
The unprecedented nature of the case could work in Trump’s favor, allowing his lawyers to argue it is inappropriate to charge a former U.S. president and his allies like gang members.
But the risks of trial may be higher than in typical conspiracy cases.
“In a normal case, if you’re convicted and looking at five years, you might get probation,” Froelich said. “Here there’s a minimum of five years. And the judge might say: ‘You tried to overthrow the U.S. government. I’m not cutting you any slack.'” (Reuters)
