We’ve been down this road before.
We’ve been down this road before.
E verything old is new again.
Democrats and the new administration have gotten the confirmation of their new attorney general tangled up in their Trump Impeachment II choreography, but things are nonetheless humming at the Biden Justice Department. This week, right on cue from the White House’s messaging on equity — not to be confused with its antithesis, equal justice under the law — the DOJ dropped a major civil-rights case against Yale, thus endorsing the university’s racially discriminatory admission practices. (And aren’t you just loving President Biden’s notions of fulfilling commitments to national unity and keeping partisan politics out of law enforcement!) Meantime, media reports say prosecutors are debating among themselves whether to charge Capitol rioters with RICO. That’s the Racketeer Influenced and Corrupt Organizations Act, an innovative criminal statute from early Seventies law, eventually used to great effect — ironically under the circumstances, by then-heralded prosecutor Rudy Giuliani — in dismantling the mafia and other organize-crime cartels.
It sounds like the same debate the DOJ had in the early 1990s, when the question was what charges to bring against a jihadist terror cell that had bombed the World Trade Center and was thwarted while plotting to bomb several New York City landmarks. As the prosecutor running that investigation, I was in the middle of that debate. Having used RICO to prosecute mafia cases, including some involving U.S.-based organized-crime families tied to cosa nostra outfits overseas, I was predisposed to believe RICO would be a fitting template for charging a domestic terror cell closely tied to overseas jihadist organizations. After close study, though, a better solution emerged for a case involving violent insurrectionists who considered themselves at war with the United States: a seditious conspiracy charge.
Would RICO have worked? It might have, but it is not really designed for ideologically driven terrorism. No point forcing the square peg in the round hole when you’ve got other statutes that fit better.
There are some differences, of course, between the jihadist terror of the Nineties and last month’s siege on the seat of our government. Still, they both involved insurrectionist violence: the use of force against the United States government. Insurrection is very different from most criminal offenses. It is motivated by a revolutionary fervor to overthrow the system.
That is the last thing common crooks want to do. They make their living beating and cheating the system. Organized crime epitomizes this thinking. Common crooks commit crimes — a heist here, a fraud there — to raise funds for their immediate purposes. For members of organized-crime syndicates, crime is a profession — a business, though one whose practices depart drastically from those of legitimate companies (in the mafia, harassment is part of the gig — not something they send you down to HR over).
RICO was designed to attack that kind of business — one that generates streams of revenue through disparate criminal activities. That was the main innovation of RICO: targeting the enterprise that committed the crimes, rather than the crimes themselves.
Traditional criminal law focuses on the crimes. If the crime at issue was a bank robbery, it was nigh impossible for prosecutors to prove at the trial that the same group that planned the robbery was also responsible for a few unrelated murders, some drug trafficking, a prostitution ring, the fencing of stolen goods, etc. When a case is about Crime A, courts tend to exclude evidence of Crime B; to establish guilt on A, prosecutors have to prove A, not use B to suggest the accused must be guilty of A because he has a propensity to commit crimes.
RICO departs from these basic premises. The offense is not the individual crimes that are committed; rather, it is being a member of an enterprise that carries out various crimes (or what are called “predicate acts of racketeering”). By breaking out of conspiracy-law constraints, the prosecution is able to expose the full scope of the organization’s lawlessness. Although the statute does not expressly mandate that a RICO enterprise have a revenue-generating purpose, that is what mafia families and similar organizations are in it for: the money.
That is why RICO is not a comfortable fit for prosecuting insurrectionists — whether they are jihadist cells operating within the U.S. or other breeds of anti-establishment terrorism. I don’t mean to say that RICO could not possibly work; again, it is not essential to prove that an enterprise was motivated by financial gain. But the lack of such a purpose would create a noticeable hole in the case, even if it is not necessarily a fatal one.
The justification for RICO’s departure from traditional criminal-law limitations was the profound and continuing threat that organized crime poses to society, spreading its tentacles in time and space. Naturally, Congress feared that by creating a broad net — i.e., criminalizing membership in an “enterprise” — it could end up snagging stray, low-level players who had little or nothing to do with the organization’s most serious offenses. Consequently, it added some complications to RICO — proof hurdles that require prosecutors to establish an enterprise’s temporal and geographical breadth, and the members’ connection to them. From the prosecutor’s standpoint, what ties the disparate activities and players together is usually the financial motive. Members join, participate in the enterprise’s affairs, and rise in its ranks with an awareness of how it operates and the expectation of profiting from it.
Insurrectionist groups are motivated not by profit but by ideology (or some form of commonly held fervor, even if it’s not a developed ideology). To be sure, proof of a commonly held ideology can tie adherents and events together over time and space; but historically, adherents will likely have manifested the ideology more through rhetoric and aspirations rather than forcible action. Ideology is unlikely to be as solid a thread for tying together a RICO enterprise and its predicate acts of racketeering as would be multiple crimes and the revenue they generate — the staples of organized-crime syndicates. Moreover, there are constitutional concerns in an insurrection case that you don’t find in a standard RICO prosecution. In the latter, mobsters cannot credibly claim First Amendment protection for the speech by which they plan murders, robberies, frauds, and the like. But insurrectionist activity always blends constitutionally protected dissent with its chatter about taking forcible action — and accused terrorists reliably claim the latter is just an edgier version of the former.
So yes, RICO has some attractions for prosecutors in cases of insurrectionist violence — it may be possible to frame an anti-establishment movement as a criminal enterprise and thus rope into the prosecution a wide range of people who were united in a common goal even if they did not know each other or act in close coordination. But it would be hard to prove a RICO case absent proof of planning, collaboration, and continuous, concrete criminal activity. You always have that with the Mafia. You might have it with a fairly regimented terrorist organization whose members have a history of carrying out violent attacks together. It would, however, be a much tougher prosecution if it is directed at a single event, and the insurrectionists’ connections are more ad hoc than regimented.
The major advantage of RICO for the government is that the enterprise concept provides a narrative framework for describing the case to the jury and the public. The prosecutor uses the need to prove the enterprise as an opportunity to tell an evocative story about who these defendants are, what brought them together (usually greed), and how ruthlessly they went about their business.
If the Justice Department can find another way to place insurrectionist violence in a compelling narrative framework, that is preferable to proceeding under RICO — i.e., you get the prosecutorial upside without injecting all of RICO’s complexities into a scenario that is not what RICO was designed for (not least, its extensive and, in parts, abstruse jury instructions).
This is why we ended up charging our terrorist defendants with seditious conspiracy. As already explained, prosecutors are drawn to RICO because the enterprise is broader criminal arrangement than a traditional conspiracy to commit a specific crime. A broad scope makes more incriminating evidence admissible, and more incriminating evidence increases the chances that defendants will be convicted. While a seditious conspiracy is not quite a RICO enterprise, it is an unusually broad agreement, covering everything from levying war against the United States, to opposing the government by force, to forcibly hindering the execution of the law or seizing the government’s property.
Conspiring to levy war and violently attack a superpower are not like planning to knock over a convenience store. A serious levy-war scenario involves many people carrying out an array of activities. These may not be quite as wide-ranging and obviously sinister as a RICO enterprise’s activities, but they’ll be sufficiently extensive and purposeful to show that conspirators contemplate projecting force on a significant scale: training and recruitment of fighters; acquisition of defensive gear, explosive components, and firearms; surveillance of targets; and so on. Like anti-American rhetoric, such conduct is not necessarily criminal on its face, but is of the kind that a violent uprising against the government would be impossible without.
Fortunately, insurrection cases are rare compared with classic organized-crime conduct. When they occur, prudence calls for charging them under a statute designed for insurrectionist violence — one that provides the same potential 20-year prison sentence as the standard RICO violation, but without RICO’s proof complications.
As I’ve detailed, seditious conspiracy could be a tougher proof for today’s prosecutors than it was for my team back in the Nineties. Our target was a cell led by notorious terrorists, so we were able to establish years of violent acts and plots. The Capitol siege was a one-day affair that, for many participants, was spontaneous. Nevertheless, it appears that for at least some groups, there is evidence of planning, training, and coordination. That would make for worthy insurrection prosecutions. It is logical that the prosecutors would consider using RICO, and it might be a viable alternative. But I found there was a better way, and I bet the Justice Department will, too.