Fani Willis’s Flawed RICO Charge against Trump

I was waiting for the Fulton County, Ga., indictment of former president Donald Trump — and, it seems, a cast of thousands — with an open mind. Fani Willis in Atlanta, like Alvin Bragg in Manhattan, is first and foremost an elected Democrat and, in this era (which I hope fades away soon) it is good politics for an elected Democrat to wield the law-enforcement powers with which she has been trusted against the party’s nemesis. That, naturally, does not make for good law enforcement — quite the opposite.

On the other hand, as I opined yesterday, in our federalist constitutional system, elections are principally conducted and policed by the states. As a result, I thought it was likely Willis would have an easier time with at least some aspects of her election-interference case than Biden Justice Department special counsel Jack Smith will have with his. Because the federal government is not the first line of defense when it comes to policing elections, federal criminal law does not much address that function. Ergo, Smith has to apply legal concepts — fraud, obstruction, and civil rights — that were not enacted for the election-integrity purpose to which he is applying them. Where you come out in the hot debate over that depends on how well you think the laws invoked fit the facts alleged. Willis, to the contrary, is a state official responsible for enforcing specific election-integrity laws. I calculated that she would be able to invoke statutes that better fit the conduct at issue.

To some degree, that is true. In the main, though, Willis is trying to make a splash by applying not election laws but RICO — i.e., Georgia’s version of the Racketeer Influenced and Corrupt Organizations Act (the better-known federal version of which was first enacted in 1971).

I have other points to make about the indictment, but to avoid turning this post into a tome, I’ll start with RICO and address other subjects in one or more additional posts.

DA Willis’s claims of experience in organized-crime cases notwithstanding, I don’t think she grasps RICO. If she does, then she is using it in lieu of the simpler crime that any prosecutor would prefer to charge — plain old conspiracy — in order to try to paper over the big hole in her case.

The hole is that the objective of the schemes described in her 98-page indictment — namely, to retain Trump in power despite his election loss — is not a crime per se. Of course, if people pursue a lawful objective through illegal means, they may commit crimes in implementing those means. But a conspiracy, very simply, is an agreement between two or more people to commit a crime. The conspiracy need not be successful to be prosecutable because, in conspiracy, the crime is the agreement itself not the crime the conspirators agreed to commit. If we agree to rob the bank but the police get wind of the plan and arrest us on the way to the bank, we are guilty of conspiracy to commit bank robbery, even though we can’t be prosecuted for actual bank robbery. That said, though, the crucial point is that the objective of the agreement must be a crime. If a group of people take egregious actions in the pursuit of an objective that is not a crime, there is no conspiracy — even though, collaterally, some of the egregious actions may amount to crimes if they violate penal statutes.

Willis seeks to obscure this problem by charging a RICO conspiracy. I assume she figures it works as a vehicle for tying together a narrative about a large group of people involved in various types of bad behavior. But she misses the point of what RICO is meant to do.

Prior to 1971, the challenge in prosecuting organized crime was that these groups were involved in disparate schemes — murder, extortion, gambling, prostitution, stolen goods, etc. — that were difficult to indict and try as one case. There would be too much “prejudicial spillover” on, say, the gambling operatives if they were forced to be in a trial with the murderers. So you’d have to indict different cases to address each different criminal scheme — which meant more opportunities for the crime syndicates to intimidate witnesses, tamper with jurors, etc.

The innovation of RICO is that the essence of the crime is membership in the group, not the component schemes carried out by the group.

In RICO parlance, the group is the enterprise. It often is but need not be criminal in nature. By definition, an enterprise is merely “an association in fact” — a broad definition that could apply to groups that run the gamut from innately illicit (e.g., a mafia family) to legitimate (e.g., labor union or political party), and from regimented (say, a militia) to loosely knit (say, a street gang). The enterprise becomes a RICO enterprise if it conducts its affairs through a pattern of racketeering activity — which generally means two or more felonies (usually a lot more) of the kind that are staples of organized crime. (See §1961(1), the capacious federal definition of racketeering activity. I also note: There are other kinds of RICO offenses that are not germane to our discussion.)

The gravamen of a RICO crime is being a member of the enterprise that commits crimes, not the commission of any particular crime the enterprise carries out. Concrete example: Let’s say the Gambino mafia “family” commits murder, extortion, etc. — the usual run of mob crimes. If you are indicted for RICO conspiracy in that context, the crime is not the killing of X rival mobster, or the extortion of Y businessman (although you probably would be indicted for those crimes in separate counts if you were personally complicit in them). The crime is to intentionally conduct or participate in the affairs of the Gambino family. The prosecutor must show that you did that through the commission of crimes (i.e., the pattern of racketeering activity). But the gist of the offense is the enterprise.

This is where I believe Willis’s theory founders.

In fact, she gets it wrong right out of the starting gate, describing Trump and his 18 alleged co-racketeers as a “criminal organization.” This is just dumb. If you could prove they conspired to do something illegal, you could accurately call them members of a criminal pact; but the 19 defendants are not even members of a single organization, much less one that is innately criminal.

Moreover, from the prosecution’s perspective, there need not be a “criminal organization” in order for there to be a RICO enterprise — as we’ve seen, the latter can be a lawful entity as long as it is an association in fact. As a prosecutor, it is hard enough to prove beyond a reasonable doubt the elements of offenses that must be established to secure a conviction; so the state should never allege something it does not need to prove, let alone something that cannot be proved because it isn’t true.

But more important, the 19 people charged have no driving interest in being part of the group that Willis frames as “the enterprise.” Their objective was to keep Trump in power. It was that objective, and not the sustaining of any group, that brought them together; and once that objective was attained or conclusively defeated, the group — to the dubious extent it really was an identifiable group — would (and did) melt away. That’s another good sign that you’re not dealing with a RICO enterprise. The vast run of such enterprises are in it for the money — you want to be in an enterprise because it generates lots of income over time. And the law calls for prosecutors to prove that RICO enterprises are continuing threats, so an economic purpose and the carrying on of activities (criminal and otherwise) to sustain the gravy train are the fabric of a RICO enterprise.

Jack Smith’s federal election-interference case, of which I am not a fan, is nonetheless a better case because he identifies real crimes that he alleges the conspirators agreed to commit in the course of retaining Trump in power. Smith doesn’t claim that retaining Trump in power is a crime per se, and he fully acknowledges that the objective of retaining Trump in power was the motive for the crimes that are charged. But the conspiracies he alleges are violations of federal penal law — defrauding the United States, corruptly obstructing Congress, and undermining the civil rights of voters. I have my quarrels regarding whether the facts he alleges establish those crimes as they have been construed by the courts; but I freely concede that they are crimes.

Willis, by contrast, is turning to RICO because she can’t charge an overarching conspiracy to achieve a criminal objective. Instead, she can prove a lot of chicanery carried out in the service of a lawful aim. But alleging that Trump and his 18 co-defendants orchestrated this chicanery as part of an “enterprise” does not solve her problem.

I should hasten to add that Willis charges other conspiracy offenses besides RICO, including against Trump, in her 41-count indictment. I will come to them in subsequent posts. Here, I’ve confined myself to the RICO offense, Count One, which runs 71 pages, including 161 alleged overt acts in furtherance of the conspiracy — the framework of the state’s case.