Mr. Trump’s lead lawyer in the Georgia state prosecution, Steven H. Sadow, has attacked Fulton County District Attorney Fani Willis for using the RICO (Racketeer Influenced and Corrupt Organizations Act) to force four of the co-defendants in the Trump RICO prosecution to become witnesses against his client. He complained that “this so-called RICO case is nothing more than a bargaining chip for DA Willis.”
As a former prosecutor who regularly used the RICO statute, let me be clear — there is nothing wrong with using RICO as a bargaining chip. RICO, which carries a maximum 20 year prison sentence, is a powerful incentive for a criminal defendant to plea bargain for a lesser charge and agree to testify against the ringleaders of the RICO enterprise. For prosecutors and defense lawyers, bargaining for a less serious crime is standard operating procedure.
While the guilty pleas in Fulton County have been entered pre-trial, prosecutors employ a similar practice post-trial after a defendant is convicted and actually receives a substantial sentence. In those instances, the convicted defendant is incentivized to enter into a cooperation agreement and testify against others to reduce the imposed sentence.
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This is precisely how the Watergate burglary case was cracked wide open after Judge John Sirica, the federal district court judge presiding over the prosecution of the Watergate burglars, meted out substantial sentences to the burglars caught red handed in the Democratic National Committee headquarters in the Watergate complex. Facing a substantial prison sentence, James McCord Jr. agreed to cooperate. His cooperation led prosecutors directly to then-President Richard Nixon’s campaign committee and ultimately to Nixon himself.
Charging or convicting a criminal defendant of a serious crime is not the only mechanism in a prosecutor’s toolbox to force a defendant to cooperate and testify truthfully. Under the 5th Amendment privilege against self-incrimination, a prosecutor cannot force someone with knowledge of a crime to cooperate unless the prosecutor grants that person immunity from prosecution. With immunity, a person no longer has a Fifth Amendment right to refuse to testify because what they say cannot be used to convict them of a crime. However, immunized testimony can be used to convict others of a crime.
Mark Meadows, Mr. Trump’s former chief of staff, has reportedly been granted immunity by special counsel Jack Smith. Mr. Meadows, who is under indictment in the Fulton County RICO case as one of Mr. Trump’s co-defendants, is a classic candidate to be granted immunity in the federal election interference case pending in the District of Columbia. Before and after the 2020 election, Mr. Meadows not only spoke with Mr. Trump on a daily basis but relayed many communications to and from Mr. Trump. Mr. Meadows organized and participated in the call to Georgia Secretary of State Brad Raffensperger in which Mr. Trump pressured Mr. Raffensperger to find 11,780 votes.
In addition, Mr. Meadows spoke to Mr. Trump’s strategist Steve Bannon, Mr. Trump’s lawyer Rudy Giuliani and others who were present at the Willard Hotel “war room” coordinating activities directed at the counting of the electoral vote on January 6th. Mr. Meadows also spoke to Trump political advisor Roger Stone who was with the Proud Boys and Oath Keepers on the Capitol grounds the day before January 6th. The next day these two far right groups were at the forefront of the insurrection.
Because of the the upcoming March 4, 2024 trial date for the case against Trump in the District of Columbia, the government does not have adequate time to convict Meadows of a crime (assuming the government has sufficient evidence) and then obtain his cooperation after sentencing.
In deciding whether to enter into a deal for testimony, whether it is a plea to a pending charge or a grant of immunity, it is critical for the prosecutors to know in advance the details of the testimony that the prospective witness can provide to determine its truthfulness and whether the prosecutor is receiving sufficient benefit in return for a plea to a lesser crime or immunity.
In Georgia, for example, the four defendants whom the District Attorney permitted to plead to crimes other than the RICO count in return for their promise to testify, all gave recorded video statements. This was done prior to their pleas being formally entered before presiding Judge Scott McAfee. The fact that Mr. Meadows reportedly provided similar statements about his knowledge of Mr. Trump’s plot to undermine the peaceful transfer of power prior to being granted immunity by Jack Smith has to be terrifying to Mr. Trump.
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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