During the APS trial, Willis provided observers with a window into how broadly she believes the statute can be applied.
“You don’t under RICO have to have a formal sit-down dinner meeting where you eat spaghetti,” Willis told jurors in 2014. “But what you do have to do is all be doing the same thing for the same purpose. You all have to be working towards that same goal. In this case, the goal (was to) inflate test scores illegally.”
Should Willis choose to press forward with charges against Trump, it would mark the first time a commander-in-chief has been charged with a crime after leaving office. If charged and convicted of racketeering, a felony, Trump and his associates face a sentence of up to 20 years’ imprisonment in Georgia.
“Nobody knows how all of this fits within our legal framework,” said Jeffrey E. Grell, a Minneapolis-based attorney and law professor who specializes in RICO.
It’s a complicated legal tool
The federal RICO statute was put on the books in 1970 to specifically target the mob by letting prosecutors roll different crimes together into one case. A decade later, Frank “Funzi” Tieri, don of the notorious Genovese crime family, became the first Mafia boss found guilty on racketeering charges.
Rudy Giuliani, then the U.S. attorney for the Southern District of New York, used the law to indict the heads of New York City’s five major organized crime families in 1985 on charges that included extortion and murder for hire, and did the same against Wall Street financier Michael Milken in 1989.
Giuliani is now being investigated by Willis for false claims he made in testimony before a Georgia Senate committee as Trump’s personal lawyer following the November election.
In 1981, Georgia legislators concerned about “the increasing sophistication of various criminal elements,” as the AJC previously reported, enacted their own version of the statute patterned on the federal law.
It’s an effective tool, say legal observers, but only in the right hands.
“It’s not as easy to explain to jurors as the substantive underlying crimes,” said Atlanta attorney Esther Panitch, who used a civil version of RICO in a sex abuse lawsuit she filed against the Boy Scouts of America. For Panitch, the racketeering laws provided an avenue to go after the Scouting organization since Georgia’s Hidden Predator Act protected churches and civic groups like the Boy Scouts from financial liability.
In order to be tried under RICO, two offenses — such as theft, bribery, murder, false statements under oath, or witness tampering — must occur. Those crimes must have been committed by two or more persons seeking to control or protect an institution, property or interest.
“It doesn’t have to be a criminal enterprise they’re protecting, like the Boy Scouts or the presidency,” Panitch said. “It can be the methods used to protect that institution which makes it criminal.”
Critics say RICO has been exploited by prosecutors, often as a tool to introduce evidence that, without racketeering charges, would not be admissible.
“I think it’s been overused for quite a long time,” well before the APS cheating case, said Atlanta criminal defense attorney Steve Sadow.
State law defines racketeering more broadly than the federal statute, according to John Banzhaf III, professor of public interest law at George Washington University Law School, who filed complaints asking Willis and other Georgia officials to investigate Trump’s call with Raffensperger
“It makes it somewhat easier, you have to prove less to prove a pattern of racketeering,” he said. “It does not require, unlike the federal one, the existence of a (criminal) enterprise.”
Sadow said if Willis goes for RICO charges, she would be able to pursue potential evidence from outside of Georgia in an attempt to prove a wider conspiracy.
“She can make it as broad as she wants,” he said. “There’s just no limit to it.”
‘No real reason not to’ use RICO
Still, most legal observers were surprised when Willis brought up the prospect of a RICO case against Trump. Racketeering is harder to prove than other crimes, they said, so why not focus on something that’s more cut-and-dried so she could secure an easier win?
“In my experience, prosecutors can get in trouble if they make their case too complicated,” said Atlanta attorney David Walbert. “With a complicated case, the evidence may get complicated too.”
Others say the extra work to argue a racketeering case could pay off. Under RICO, a defendant needn’t have committed the crime. A defendant could be convicted because of the person’s association with illegal acts.
“There’s no real reason not to,” Sadow said when asked if he thinks Willis will go there. If she does, the Fulton DA would not have to prove Trump knew of all the activities aimed at overturning Georgia’s election results, said Sadow.
“It’s a broadening of culpability,” he said. “People get swept up and charged with criminal activity based on the conduct of others for which they are being held responsible, despite being on the fringes.”
In a potential Trump prosecution, showing a pattern of such activity over a substantial period of time, as RICO requires, may be the most difficult hurdle to clear.
Based on what has been publicly disclosed to this point, the ex-president didn’t pressure Georgia officials until after the November election, and he left office on Jan. 20. Grell, the Minnesota RICO expert, said many courts have interpreted two years as an adequate time frame to establish a pattern, even as they’ve been “reluctant to adopt any kind of bright line rule.”
Alternately, lawyers could show threats against officials occurred for an “indefinite duration,” but that could be more difficult to prove.
Despite that, RICO may still be too juicy a target for prosecutors to avoid. Not only would jail time be on the table, but also the forfeiture of property used in the course of or derived from a convicted person’s racketeering activity. Grell said prosecutors could conceivably bar Trump’s name from appearing on a Georgia ballot again.
“Boy, you want to get people pissed off, that would be a really quick way to do it,” he said.
Staff writer Bill Rankin contributed to this article.