With the news that Jack Smith has sent Trump a target letter making clear Trump will be indicted for January 6th and/or related efforts to overturn the election, speculation is rife as to what the charges might include. Similar speculation is rampant regarding Fani Willis indicting Trump on state charges in Georgia.
In both instances potential charges include something called “RICO.” The Federal RICO Act begins at 18 U.S.C. § 1961 and goes through § 1968. The Georgia version of RICO, that Fani Willis could charge under, is found 16–14–1 through 16–14–12 of the Georgia Code. For the record, I think it more likely that Willis invokes RICO in Georgia than Smith does federally. Willis is known to be a RICO fan and the Georgia statute is, in some favorable ways, broader than the Federal statute.
This article is intended as a primer on what the RICO Act is and why it is so feared.
“RICO” stands for “Racketeer Influenced Corrupt Organizations.” If that sounds like the mob, RICO statutes are indeed intended to go after mobsters, but they are written to allow for prosecution not related to traditional organized crime. Conceptually both the Federal and Georgia provisions are similar. They criminalize participating in a “criminal enterprise” or more precisely, a “racketeering enterprise.”
These terms are defined § 1961 if the Federal statute (and 16–14–3 of the Georgia statute). The definitions are close, and to keep things simple I will focus on Federal statute.
“Racketeering activity,” is defined as any of a lengthy laundry list of crimes. The list includes crimes you would often associate with mafia/mob/organized crime, such as extortion, blackmail drugs (and alcohol) running, gambling, embezzlement, human trafficking, etc. Of more interest to Smith and Willis might be mail/wire fraud, obstruction of justice, witness tampering, forgery (e.g. electoral college certificates), money laundering, etc. The Georgia statute has some notable additional crimes Willis could use, including false statements to state officials and impersonating a public official. The offenses on these lists are often referred to as “predicate offenses.” To create criminal liability the statute requires the defendant engaged in a “pattern of racketeering activity.”
“Pattern of racketeering activity,” is defined as committing at least two racketeering activities over a ten year period. Yes, it’s that easy. However, the statute also requires that you commit these crimes as part of an “enterprise” to do so.
“Enterprise,” is defined as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” Thus, the amorphous circle of attorneys, staffers, friends, politicians and whoevers who surrounded Trump as part of this, and who engaged in a pattern of racketeering activity, can all be included.
RICO vs. Conspiracy
You may wonder what separates RICO from a more simple conspiracy charge. Conspiracy requires an agreement between the coconspirators to commit what are usually specific crimes. RICO does not require proving any such agreement. So long as the parties commit the required predicate offenses, as part of the same “enterprise,” acting “in furtherance of a common purpose,” RICO can be satisfied. Such “common purpose” here would be to overturn the results of the election nationally (or in Georgia specifically) or otherwise find means to keep Trump in power.
The focus in a conspiracy case is on the specifics of the agreed upon plan to commit specific crimes. The focus in a RICO case is on the “enterprise” and common purpose among the participants. Notably, even if that common purpose is itself not a crime, the RICO Act can apply, if a pattern of racketeering activity is used to accomplish it.
One reason RICO is so feared are powerful forfeiture provisions in § 1963 of the Federal statute (§ 16–14–7 of the Georgia statute). These provisions allow the government to seize any property or proceeds derived (directly or indirectly) from the criminal enterprise. The provisions were obviously intended to dismantle the structure of organized crime organizations.
In the case of Trump this might, for example, allow the government to seize all the enormous funds raised by Trump in the criminal enterprise that had the purpose of overturning the election.
§ 1964 of the Federal statute (and 16–14–6 for Georgia) provide for civil remedies that can be imposed during the pendency of the criminal proceedings. They allow the government to seek a court order seizing the proceeds of the criminal enterprise, or preventing the defendant from accessing them, or continuing the efforts (e.g. fundraising) that acquired such assets. This is a powerful, and often criticized, aspect of RICO as it takes from defendants their ill gained assets when they need those assets to pay for their criminal defense.
We don’t know if either the Georgia or Federal RICO statutes will be used against Trump. If either are, expect to hear a lot more about RICO.