An interesting comment in the Harriet Miers diary got me thinking and researching the Racketeering Influenced and Corrupt Organizations Act (aka RICO). What I knew, but didn't remember was that this law authorizes private parties to bring civil actions and recover treble damages. Who can do this? Well let's look below.
18 US Code 1961 et.seq.
The Act provides as follows:
Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee . . .
What does the Act sanction?
The act prohibits:
(a) . . . . any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity . . . in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. . . .
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(b) It shall be unlawful for any person through a pattern of racketeering activity . . . . to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity . . ..
or ((d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.
So you can't commit unlawful racketeering activities which affect interstate or foreign commerce . . . So what is racketeering activity?
"racketeering activity" means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, . . . punishable by imprisonment for more than one year;
(B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), . . . . . .section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), . . . . section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), . . . .
. . . sections 2421–24 (relating to white slave traffic), sections 175–178 (relating to biological weapons), sections 229–229F (relating to chemical weapons), section 831 (relating to nuclear materials),
. .. . (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, . ..
The question I have, and I think it is worth tossing around, is how might Civil RICO be used as an offensive weapon by citizens who have been injured by the Bush Administration? It is my view that the Libby pardon, although it was a valid exercise of Presidential power, was done to obstruct justice. It probably can be colorably asserted, that the US Attorney firings were done to obstruct certain cases being brought - - in particular the investigation of Congressman Pombo.
It is true that it is unlikely that the US Government could be held liable for any damages from a RICO violation. However, it is not at all clear that those damaged by State actors, who are conspiring to obstruct justice, and who are damaged in their person or business, might be able to state a case and recover treble damages and reasonable attorney's fees.
The problem seems to me to be able to tie any of this activity to interstate commerce. And perhaps there are other problems. In any event, I would be interested in any comments, criticisms or improvements. Civil RICO looks to me like it is at least something that has potential to be a real threat to someone like a Sara Taylor or a Harriet Miers, and maybe even a threat to a Dick Cheney or Bush himself. Even if it is not a real threat - - i.e. the jurisdictional . .. who knows, maybe this will give someone a better idea.