The Fulton County indictment charging a violation of the state’s Racketeer Influenced and Corrupt Organizations Act, known as “RICO”, against former president Donald Trump and his 18 co-conspirator defendants is a blockbuster.
It is also a tour de force that is skillfully drafted to be virtually bulletproof against legal attacks from the defendants’ anticipated pretrial motions to dismiss. Also, unlike the federal indictment charging Mr. Trump with election interference, it is the most comprehensive accounting of what Mr. Trump and his minions did to undermine the peaceful transfer of power in the 2020 election.
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RICO is something I know about. For over 40 years, both as an Assistant U.S. Attorney in the Southern District of New York and later as a private civil attorney, I have prosecuted, defended and brought criminal and civil actions based on the federal RICO statute. In 1978, I prosecuted DOJ’s first federal racketeering prosecution predicated on traditional white collar crimes — stock fraud and bankruptcy fraud. Two years later I brought the Department of Justice’s first RICO prosecution naming the Mafia as a RICO enterprise with the indictment and conviction of Genovese Mafia boss Frank “Funzi” Tieri.
Despite the word “racketeer” in the title of the statute, RICO has never been limited to prosecuting the Mafia. RICO has been regularly charged against both professional and traditional white-collar criminals. In 1981, I used RICO to convict two executives for maintaining an off-the-books corporate slush fund. The alleged enterprise was Warner Communications. The Georgia indictment in accordance with RICO’s statutory requirements properly charges as an enterprise “a group of individuals associated in fact” with the criminal objective “to unlawfully change the outcome of the [2020] election in favor of Donald Trump.”
In 1980, Georgia adopted its RICO statute patterned after the federal statute with an emphasis on underlying Georgia state crimes, several of which underpin the RICO indictment against Trump and others. In 2013, Fani Willis, the current Fulton County District Attorney, while an assistant district attorney famously used RICO in a successful prosecution charging 35 Atlanta educators who perpetrated a scheme to correct wrong answers on students’ standardized tests — the corrupt goal being for the teachers and administrators to receive bonuses for achieving improvements in student performance. The current Trump indictment reflects her experience with that earlier indictment. As Willis has explained, “RICO is a tool that allows a prosecutor’s office and law enforcement to tell the whole story.”
The Georgia RICO indictment does in fact tell the entire sordid story of Mr. Trump’s multifaceted attempts to undermine the Georgia vote in the 2020 presidential election. Willis has combined seven separate criminal schemes as a pattern of skullduggery to charge the single RICO violation against Trump and his 18 co-conspirators. The 98-page indictment simply boils down to lying about non-existent election fraud, soliciting others to violate their oath to defend the U.S. Constitution and adopt the defendants’ election fraud lies and steal computerized election data in Georgia’s Coffee County to prove nonexistent election fraud.
These charges all strike at the heart of Trump’s corrupt efforts to remain in power and undermine our constitutional system.
The charges that particularly stand out are the persistent efforts of Mr. Trump and his co-conspirators to solicit upstanding public officials, such as Georgia Gov. Brian Kemp, Georgia Secretary of State Brad Raffensperger and other state officials in Georgia and elsewhere to violate their oaths of office to protect, defend and enforce state laws and the United States Constitution. That is the crux of what this indictment charges.
The Georgia indictment also neatly complements the federal election interference prosecution filed in the District of Columbia. Most notably, it brings to justice 5 of the unindicted co-conspirators referenced anonymously but not charged in the federal indictment, Rudy Giuliani, John Eastman, Kenneth Cheesbro, Jeffrey Clark and Sidney Powell.
At the same time it holds Mr. Trump accountable for his role as the ringleader and motivating force behind the various criminal schemes. It should be noted that DOJ could not have charged Mr. Trump with the federal RICO statute. None of the crimes charged in the federal indictment can constitute a pattern of racketeering activity under the federal RICO law.
Although the four separate and distinct federal crimes charged in the DOJ prosecution do not contain the word “racketeer,” both the prosecutors in Georgia and D.C. will argue at trial to their respective juries that they should return a guilty verdict against Mr. Trump for perpetrating the identical corrupt purpose — the undermining of the 2020 election and the brazen effort to sabotage the constitutionally mandated peaceful transfer of power from then-president Trump to president-elect Joe Biden.
Nick Akerman is a New York City-based lawyer who represents clients in civil and criminal matters and government investigations. Akerman was an assistant special prosecutor with the Watergate Special Prosecution Force.
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