If Willis is to be believed, a person need not commit or agree to commit any statutory crime in order to be guilty of RICO conspiracy.
If Willis is to be believed, a person need not commit or agree to commit any statutory crime in order to be guilty of RICO conspiracy.
O h, about those 161 “overt acts” in furtherance of a RICO conspiracy that Fulton County district attorney Fani Willis trumpeted in the first few dozen pages of her mammoth indictment of Donald Trump and 18 co-defendants. Never mind. Turns out, according to Willis, that those 161 acts don’t really define the sprawling conspiracy to — well, to do something. They just give you some flavor.
The prosecutor now says she need not prove any of them. That was Willis’s position in contesting the attempt by Trump’s co-defendant and former chief of staff, Mark Meadows, to remove the prosecution to federal court. The district attorney insists that, instead of proving what she’s ramblingly pleaded in the first 60 pages of the indictment, she can just prove other acts, even if they’re not in the indictment. By the DA’s lights, whatever she decides to prove just needs to be somehow connected to what she frames as a conspiracy to reverse the result of the 2020 presidential election — notwithstanding that it is not a crime to try to reverse the result of an election.
So how are Trump, Meadows, and the other 17 defendants supposed to know what they are alleged to have done to make themselves guilty of racketeering? Well, what’s there to know? In Willis World, to be guilty, they don’t need to have done anything! According to the DA, as long as any defendant was “associated” with the group that is alleged to have conspired, that defendant is guilty — and is looking at a sentence of up to 20 years’ imprisonment, with a minimum of five years in the slammer.
That’s the prosecutor’s story. And I’m sure you’ll be shocked to learn that it was good enough for Judge Steve Jones, an Obama appointee to the U.S. district court in Atlanta. In a 49-page opinion issued September 8, Judge Jones rejected Meadows’s removal gambit.
Yes, Jones conceded, the overt acts that Willis outlined against Meadows did happen within the context of his official duties as a high federal official. Generally, that’s the low bar a defendant must hurdle to warrant removal, a remedy intended to prevent state governments from obstructing federal officials. But at Willis’s urging, Jones decided that the overt acts that Willis took pains to plead (and proclaim to the media) are irrelevant, because they “only serve to tell a broader story” about the conspiracy charge.
What matters, the court rationalized, is the gist of what Meadows is accused of doing — which Judge Jones describes as conspiracy to “unlawfully change the outcome of the 2020 presidential election in favor of President Trump.” Putting aside the lack of evidence of unlawful conduct, Jones concluded that Meadows’s efforts were essentially political and thus outside the scope of a presidential chief of staff’s governmental duties (the ones the removal doctrine protects). The judge emphasized that he was finding only that Meadows had failed to show that the case should be removed to federal court, not rendering any opinion on the merits of Willis’s case.
We’ll have time to revisit the removal issue. Counsel for Meadows have already appealed to the Eleventh Circuit, and there are additional removal motions by other defendants who were federal officials at the relevant time, in particular, Trump and former Justice Department lawyer Jeffrey Clark.
For now, let’s stick with Willis’s ballyhooed RICO indictment.
The other big story regarding the Fulton County case at the end of last week was the publication of the final report by the investigative grand jury on whose work the indictment is based. What caused a stir was that, despite having indicted 19 people, including the former president of the United States, Willis must have disappointed her investigative grand jury. That panel recommended that she indict 39 Trump supporters, including Senator Lindsey Graham (the South Carolina Republican and Trump ally whom Willis had informed he was not even a subject of the investigation), as well as former Republican senators David Perdue and Kelly Loeffler of Georgia, and former Trump national-security adviser Michael Flynn. For good measure, the grand jury also suggested charging a passel of Trump campaign lawyers (yes, that would be in addition to the several attorneys Willis did indict).
While Willis did not charge Graham et al., it is important to understand that the grand jurors’ recommendations had to have been based on the instructions Willis gave them about the law covering racketeering and related crimes. There is no judge in the grand jury. There are no defense lawyers. The grand jury’s adviser on matters of law, including on the proof requirements in statutes defining the potential crimes under investigation, is the prosecutor.
As previously explained, I don’t believe Willis’s racketeering-conspiracy charge states a crime. A conspiracy is an agreement between two or more people to commit a crime — meaning a statutory offense. If the agreement is aimed at achieving a lawful objective, it is not a criminal conspiracy — period. If people who agree to a lawful objective commit crimes while pursuing that objective, then they are guilty of those crimes; that, however, does not transmogrify the lawful objective into a criminal conspiracy. Let’s say you and I agree to buy a house; finding ourselves without sufficient funds, we defraud a bank to try to get the money we need. That makes us guilty of bank fraud. We are not guilty of conspiracy to buy a house, because buying a house is not a crime.
Seeking the reversal of a presidential election is not a crime. Hence, agreeing to pursue that objective cannot be a criminal conspiracy. In fact, state law anticipates challenges to the outcome of presidential elections. So does federal law — see, e.g., Section 5(c) of presidential-election law, which provides that a state certification of electors could be “revised by any State or Federal judicial relief” prior to the meeting of the Electoral College.
Furthermore, the Constitution protects the right of citizens to petition the government, which obviously includes petitioning state legislatures and election officials. And as any Democrat who has pleaded with President Biden to cancel student debt could tell you, it is not a crime to petition the government to do something lawless. As Representative Jamie Raskin (D., Md.) could tell you, the Constitution even enables partisan-hack congressmen, in blatant violation of federal election law, to petition the vice president not to count state-certified electoral votes.
Willis, nevertheless, seeks to criminalize such constitutionally protected activity by framing it as the Georgia crime of solicitation to commit a felony. The notion is that these state legislators and election officials would not just have been flouting the civil law but would have been guilty of a criminal offense if they had taken official action to undo the election result — notwithstanding that those officials would have had immunity for even wrongheaded actions taken within their official duties.
The upshot of Willis’s theory is that, regardless of what the law and the Constitution may say, it is a felony to question elections . . . won by Democrats.
Willis is wrong, of course. If two or more people agree to seek the reversal of an election result, that agreement does not become a criminal conspiracy by the prosecutorial hocus-pocus of inserting the word unlawfully before the word seek. There is no penal statute in which the Georgia legislature has criminalized “seeking to change the result of an election”; if there were, Willis would have charged it. Again, there can’t be a criminal conspiracy absent a statutory crime that two or more people agree to commit.
By contrast, Georgia (like other states and the federal government) has enacted penal statutes that criminalize bribery and extortion. If a prosecutor could show that two or more people agreed to bribe or extort an election official, then there would be a bribery conspiracy or an extortion conspiracy — but not a conspiracy to reverse the election result. In the bribery and extortion scenarios, the objective of reversing the result of the election would be the motive for the conspiracy. Though they are causatively related, crimes and motives are saliently different things. The desire that motivates a crime frequently is not criminal — think of Jean Valjean stealing bread because he wants to feed his sister’s starving children. But whatever the motive, the objective of a criminal conspiracy must always be the commission of a statutory crime.
Willis doesn’t have evidence that the defendants she’s charged conspired to commit a crime, such as bribery or extortion. She is invoking “conspiracy,” but what she’s trying to criminalize is the petitioning of government officials in order to challenge election results. No matter how much you may despise Donald Trump, you should be frightened by the specter of prosecutors manufacturing conspiracy crimes out of lawful objectives.
Willis knows this is a problem. That is why she invokes RICO, Georgia’s version of the 1971 federal Racketeer Influenced and Corrupt Organizations act — a typically ponderous statutory title meant to evoke Edward G. Robinson’s portrayal of the fictional Chicago mobster Rico Bandello in Little Caesar (1931). The RICO-conspiracy charge is the DA’s effort to paper over the inconvenient fact that she can’t prove a single, criminal objective that could turn the supposed agreement of her 19 defendants into a criminal conspiracy.
(I say “supposed agreement” because the fact that people may have a common objective does not necessarily mean they are in an agreement to pursue it together. On Monday night, over 83,000 people showed up at MetLife Stadium and watched Aaron Rodgers’s season-ending injury. Tens of thousands of them wore green jerseys, pulled for the Jets, and were overjoyed when they won. That doesn’t mean they agreed to go to the game together.)
RICO was designed to attack organized-crime groups. The statute thus focuses more on the entity that carries out crimes (the so-called enterprise, of which the prototype is a mafia “family”) than on the crimes the entity agrees to commit. That’s why Willis strains to portray Trump and his 18 likeminded supporters as if they were an “organization,” in which everyone agreed that sundry crimes would be committed in order to retain Trump in the presidency — as if that were just like a mafia family’s agreement that sundry crimes will be committed for the purpose of generating money and power.
Willis’s construct doesn’t work, for reasons we’ll come to. Preliminarily, however, I must observe that her interpretation of RICO is monstrous. Under it, a person would not have to commit or agree to commit any statutory crime in order to be guilty of RICO conspiracy. Given that Willis was the grand jury’s legal adviser, it’s easy to see why the panel believed Senators Graham, Perdue, and Loeffler, along with a veritable cast of thousands, should be indicted. The only mystery is why the panel stopped at just 39 people. Why not charge every Republican and American who supported Trump’s effort to challenge President Biden’s victory?
Judge Jones matter-of-factly describes Willis’s breathtaking theory on pages 17–19 of his opinion. RICO makes it a crime for two or more people to conspire to “conduct or participate in, directly or indirectly,” the activities of “an enterprise” through “a pattern of racketeering activity.” The statute defines an enterprise as an “association in fact.” It does not need to be a criminal organization with the regimented structure of a mafia family; it can be a legal, loosely knit group — say, the management committee of a corporation, or activists linked to a political party.
How could it be a crime to agree to be in a lawful group? That’s where the pattern of racketeering activity comes in. Racketeering activity involves violations of criminal law — either committing them; conspiring or attempting to commit them; or soliciting, coercing, or intimidating another person to commit them. A pattern requires at least two acts of racketeering activity. In a typical RICO case, there are many more than two: Since the priority of the racketeer is to keep the enterprise going so it keeps generating money and power, RICO conspiracies often continue for years, carrying out crime after crime.
Willis’s indictment alleges 161 instances of what she describes as “acts of racketeering activity and overt acts in furtherance of the conspiracy.” This is a confusing mess, because she doesn’t tell us which are which. As just explained, acts of racketeering activity are supposed to be crimes (here, Georgia penal offenses). By contrast, overt acts in furtherance of a conspiracy are not necessarily crimes; they can be ostensibly legal acts that are actually sinister because they further a criminal conspiracy. That’s not as dense as it sounds. For example, it is perfectly legal for me to drive from my home to a building on Main Street; but if I am going there to attend a prearranged drug deal, then my drive from home to Main Street is an overt act in furtherance of a narcotics-trafficking conspiracy.
In an ordinary RICO indictment, the prosecutor clearly distinguishes the racketeering acts (crimes) from the overt acts (often non-crimes). Willis doesn’t do that, no doubt because many transactions that she portrays as criminal (e.g., petitioning state legislatures and election officials to question election results) are not actually crimes. By not designating the purported racketeering acts as such, and by sprinkling them among the non-criminal overt acts, Willis obscures her departure from sound RICO pleading.
In a standard RICO case (including RICO-conspiracy cases), the prosecutor takes pains to list the predicate acts of racketeering together. That is how the court, the eventual jury, and the rest of us can recognize them as a distinctive pattern of crimes that ties the alleged “racketeers” to the enterprise and to each other. In RICO, the idea is that even if every racketeer did not agree to the commission of every distinct crime committed by every member of the enterprise, each racketeer should still be held responsible because everyone agreed to the kinds of crimes — the pattern of racketeering activity — that were necessary to sustain the existence of the enterprise.
Willis doesn’t want to do that because she doesn’t have a RICO enterprise. Unlike, say, members of La Cosa Nostra or a corporate management committee, there is no reason why the 19 defendants Willis charged would see themselves as members of an identifiable enterprise whose existence they had an interest in sustaining. In a mafia case, if the pattern includes murder, extortion, gambling, prostitution, and movement of stolen goods, it is easy to conclude that the members of the family know they are agreeing to belong to a group that generates income through these kinds of activities, and that they want the group to continue — indeed, it’s common for murders to be committed precisely for the purpose of protecting the existence of the enterprise.
Or take, say, a corporate management group: Even though it is a legitimate entity, it could readily be a RICO enterprise if it committed stock manipulation, insider trading, fraudulent accounting, bribery of regulators, and the like. That would establish a pattern. We could conclude that even if all the execs did not agree to every individual crime, they all agreed to be part of a sustained enterprise that generated income through this pattern of criminality.
In addition, in the standard RICO case, the prosecutor tries to show not only that the enterprise collectively committed a pattern of criminal offenses, but that each alleged racketeer (a) committed at least one crime in the pattern (usually more), and (b) generally knew about and approved the kinds of offenses committed by other members of the enterprise. By contrast, Willis takes the position that one need not have committed a predicate crime to be part of the alleged RICO enterprise. One need only associate with the enterprise. If he does that, then he supposedly becomes responsible for any criminal acts committed by any member of the enterprise, regardless of whether he knew about or approved them.
That’s ridiculous. In an ordinary conspiracy case, a defendant is deemed responsible for any and all acts in furtherance of the conspiracy, regardless of whether he knew about them, only if there is proof beyond a reasonable doubt that the defendant agreed to commit the crime that is the objective of the conspiracy.
Furthermore, in every conspiracy case, the judge instructs the jury that mere association with conspirators is not enough to prove guilt. After all, association — even with unsavory characters — is a constitutional right. Association crosses into criminal conspiracy only if the prosecutor proves that the defendant knowingly and intentionally joined in the agreement to commit a crime. Generally, that is proven by showing that the defendant personally took some concrete step in pursuit of the success of the criminal venture.
Here is Judge Jones explaining that Mark Meadows can be guilty even if he personally did not perform a criminal act, or even a non-criminal overt act that supposedly furthered the RICO conspiracy:
In sum, to establish a RICO conspiracy, the State only need prove that any co-conspirator committed one overt act in furtherance of the conspiracy, whether the overt act was specifically charged in the Indictment or not. In other words, the State can prove its RICO charge against Meadows by showing any one of his co-Defendants committed any overt act in furtherance of the conspiracy – whether that overt act is in the indictment or not.
Translation: Even if Willis doesn’t prove a particular defendant did anything wrong, the defendant can nevertheless be found guilty of racketeering conspiracy, and sentenced to 20 years’ imprisonment, as long as some other defendant carried out some “overt act” — an act that need not itself be a crime nor even be one of the 161 acts Willis cited in her indictment. Apparently, that’s because we should assume Meadows “associated” with the “enterprise” — notwithstanding the dearth of indication that there was an identifiable entity with an interest in sustaining itself as such — in its objective to reverse the result of the election, a non-crime that perforce cannot be the object of a criminal conspiracy.
I better stop there. After all, just by writing about the RICO conspiracy, I have undoubtedly done more than Fani Willis thinks you need to do to be guilty!