The indictments handed up by a Georgia grand jury on Monday evening are fundamentally different from the 80 state and federal indictments that Donald Trump was already facing. That’s because Trump isn’t being prosecuted as an individual, or even as one of a handful of people involved in a conspiracy. This time around, Trump is being tried as the head of a criminal organization through Georgia's Racketeering Influenced and Corrupt Organizations law. That makes a huge difference when it comes to what prosecutors are trying to prove, what evidence they can use, and how they will deal with the 18 other people indicted in this case.
The federal RICO Act was first passed in 1970. State laws followed swiftly. That’s because RICO gave prosecutors a tremendous boost when going after Mafia, drug cartels, and other criminal organizations. Over time, prosecutors have realized that RICO gives them leverage in cases against everything from inside traders on Wall Street to corrupt health care providers.
RICO is especially designed to go after the criminals at the top of the pyramid, the ones who might otherwise skate by as low-level flunkies took the fall for crimes. In a sense, it’s not Trump who will go to trial in Georgia, it’s Trump Coup, Inc. And there’s a special factor about Georgia’s RICO law that is going to have most of those 19 defendants scrambling to make a deal.
Looking through the indictment presented by Fulton County District Attorney Fani Willis last night, it’s immediately striking that many of the 161 acts supporting the indictment are not criminal acts on their own. In fact, 23 of them appear to be nothing more than tweets issued by Trump. Others involve public speeches or statements made to the media, which would certainly seem to fall under the area of speech.
But those acts don’t have to be individual crimes. They only have to be acts that promoted the criminal enterprise—an enterprise that did engage in a long list of criminal activities to support a common purpose. The indictment begins with a clear, succinct definition of that criminal enterprise.
Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.
The 19 defendants on the indictment all committed various criminal acts that earned them unique lists of charges. However, everyone on the indictment shares in charge number one: violation of the Georgia RICO Act. This has numerous results, all of which are bad for the defendants and good for prosecutors.
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First, because the criminal enterprise affects voters in Fulton County, it doesn’t matter where the crimes were actually committed. Efforts that were made to pressure election officials in Arizona or to secure false electors in Pennsylvania can all be brought into the case because they have the effect of promoting the purpose of the criminal enterprise, which was, as the indictment states, to “unlawfully change the outcome of the election in favor of Trump.” Everything done by the defendants to that end, no matter where they did it, is potential evidence.
In a very real sense, this makes the Georgia indictment a much larger case than the federal indictments brought forward by special counsel Jack Smith. The case is broader in terms of the evidence to be heard, wider in the sense of the number of crimes to be considered, and deeper in that it travels the pyramid of the criminal enterprise from the orange peak down to state and local Trump allies at the base.
And there’s another big factor about Georgia’s RICO law that is going to make this case very, very different: As Willis brought up in her statement to the press late Monday, those found guilty under the RICO statute in Georgia have to serve jail time. Crimes that might otherwise get probation become mandatory sentences when they take place as part of a RICO crime. (There is a Georgia law that allows judges to potentially reduce the mandatory sentences of first offenders. However, it’s not clear if it applies to this case.)
That doesn’t mean everyone on this list is bound for jail. It means most of the people on this list—and their attorneys—are bound to be coming to Willis’ office, hat in hand, seeking to make a deal.
The whole reason prosecutors love mandatory sentences is they know it will make people seek a deal. Conviction rates of those charged with crimes carrying mandatory minimum sentences often exceed 95%, and sometimes approach 99%. In short, defendants who might otherwise decide to fight a case out in court change their minds when they know a loss guarantees incarceration—likely incarceration measured in years. (This is part of what makes such sentences hugely dangerous. Charges that include mandatory sentences are very unevenly applied, often used against defendants with poor legal representation, and are used to convince even innocent defendants to plead to a lesser charge. They are a huge contributor to how district attorneys maintain those exceedingly high rates of conviction.)
Practically everyone on the long list of defendants in the Georgia case is going to be coming to Willis, looking at what they can do to get charge number one dropped in their case. Those who make a deal will likely plead guilty to their other crimes and may walk away with probation, fines, or a short jail term. Those who don’t are going to be facing an all-or-nothing role of the dice.
To make a deal, Willis will almost certainly be looking for more than just a guilty plea (though a couple of defendants pleading guilty early in a case like this can be looked on as good lubricant for easing others into the district attorney’s office). Those who are disappearing from the RICO case will likely be doing so after providing either new incidents that Willis can use in trying the criminal conspiracy, or significant new details about the incidents already described in the indictment.
Some of those 19 defendants are going to find Willis isn’t interested in making a deal. That’s certainly true for Trump, who faces 13 charges. It’s very likely true for Giuliani, who faces 14, and Eastman, who ended up with 10. These are the “bosses” of this “mob,” and the whole purpose of RICO is to prevent guys like them from walking away.
Giuliani knows how this works: He was on the other end of wielding RICO many times.
In her Monday night press conference, Willis seemed to be saying she wanted to prosecute the whole indictment as a single case. That would require a large courtroom just to seat the defendants and their attorneys. Maybe they can go over to Georgia Tech and see if the Yellowjackets can arrange their schedule so the case can be tried in the “Thrillerdome.” That seems appropriate.
But by the time this goes to court, it’s unlikely there will be 19 defendants on the bill. Some of those people are going to make deals that remove them from the RICO case. It’s like a reverse game of “Survivor,” where the winners are the first to get off the island. Those left behind are going to face at least the charges they have now, and Willis will be armed with evidence even better than that used to gain the indictment.
Then Donald Trump’s Coup, Inc. will go on trial. Honestly … I don’t think much of their chances.
