Problems with the Georgia RICO indictment of Trump, et al. - Randall Eliason

 

But compare: Why Jack Smith's Indictment is so smart!

Problems with the Georgia RICO Charge

Flashy, but probably not a good choice

RANDALL ELIASON SEP 7

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The Georgia indictment of Donald Trump and eighteen co-defendants made quite a splash. The lead count charges all defendants with a sweeping RICO conspiracy to overturn the results of the presidential election in Georgia and other states. The RICO charge attracted a lot of attention both because it joins all nineteen defendants together in a single nationwide conspiracy and because of the mystique surrounding RICO and its association with organized crime.

The indictment is an impressive document. But having had more time to look at the case, I think using RICO was probably a mistake. There are going to be some significant legal challenges to RICO that will complicate and bog down the prosecution. Most of the prosecution’s goals could have been achieved more quickly and simply through a series of smaller conspiracy cases.

This is going to require a nerdier-than-usual deep dive into some legal weeds, but I hope you’ll bear with me. As a story, the RICO count is a great read. As a criminal charge, I’m not convinced it will have a happy ending.

The Georgia Mugshots (credit: Reuters)

RICO 101

Congress passed the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) in 1970. As the name suggests, RICO was aimed primarily at organized crime families and similar groups engaged in long-term, systematic criminal conduct. Prosecutors have also used RICO’s sweeping terms to prosecute corruption, fraud, and other white collar offenses, even with no connection to organized crime.

The Georgia RICO statute was passed in 1980. It is modeled on the federal law and is very similar to it. As you have no doubt heard in recent weeks, it is even broader than the federal law in some respects.

Although the laws are not identical, the Georgia state courts regularly note that they will look to federal cases about federal RICO for guidance when interpreting their own RICO statute.

RICO penalizes engaging or conspiring to engage in activities that are already crimes, but doing so in an organized and repeated way. It prohibits engaging not in isolated criminal acts but in a “pattern of racketeering activity.”

The section of Georgia’s RICO law used in the Trump indictment, Georgia Code § 16-14-4 (b), provides:

It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

Subsection (c)(1) prohibits conspiracies to violate section (b), and that’s the charge against the Georgia defendants.

This language is almost identical to the federal RICO counterpart, 18 U.S.C. § 1962(c).

This charge requires the government to prove:

• There was an “enterprise”

• The defendant was employed by or associated with that enterprise, and

• The defendant conducted or participated in that enterprise

• Through a pattern of racketeering activity

Let’s break that down.***