Opinion: Trump’s case seems to fit RICO statute

Former Watergate prosecutor offers his insights into racketeering laws.
The Fulton County Courthouse is seen in Atlanta on Friday, January 6, 2023. (Arvin Temkar/The Atlanta Journal-Constitution/TNS)

Credit: TNS

Credit: TNS

The Fulton County Courthouse is seen in Atlanta on Friday, January 6, 2023. (Arvin Temkar/The Atlanta Journal-Constitution/TNS)

As an Assistant U.S. Attorney in the Southern District of New York in 1981, I was the first prosecutor to use the federal RICO statute (the Racketeering and Corrupt Organizations Act) to prosecute a Mafia Boss. I was also the first federal prosecutor to charge traditional white-collar defendants with RICO violations. Simply stated, what makes RICO different from other criminal statutes in a prosecutor’s tool box is that it transforms a pattern of individual crimes into a single crime.

My use of RICO to prosecute Frank “Funzi” Tieri, the boss of the Genovese La Cosa Nostra family and the head of the Mafia’s National Commission of Mafia bosses, shows precisely why Fani Willis, the Fulton County District Attorney, should be seriously considering charging former president Donald Trump with violations of Georgia’s version of the federal RICO statute.

The Tieri prosecution successfully resulted in a RICO conviction and a 10-year prison sentence. The government had secured four witnesses who were knowledgeable about various criminal acts committed by Tieri. These crimes included a murder plot in California, an extortion threat in Brooklyn and a bankruptcy fraud arising out of the mob-funded Westchester Premier Theatre in Tarrytown, New York. However, the proof of each of these separate crimes, based only on a single witness’s testimony, was too thin to convict Tieri beyond a reasonable doubt. Compounding that problem was the fact that the FBI was never able to clearly tape record Tieri’s conversations with his criminal underlings because of his unintelligible, raspy voice, much like Marlon Brando’s in “The Godfather.”

Nick Akerman

Credit: contributed

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Credit: contributed

RICO was the glue that allowed me to combine the crimes testified to by the four witnesses into one powerful all-encompassing prosecution against Tieri for racketeering. Through the RICO violation, I was able to explain to the jury Tieri’s guilt for all these crimes as the powerful boss of one of the five New York Mafia crime families.

A prosecution against Trump for attempting to undermine the peaceful transfer of power for crimes committed in Georgia following the 2020 election fits neatly into the provision of the Georgia RICO statute that makes it a crime “for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” This is the identical provision of the federal RICO statute that Georgia adopted in its RICO statute upon which I prosecuted Tieri.

The “criminal enterprise” Tieri was charged with conducting was the Mafia. But Georgia’s RICO statute, like the federal statute, does not require that the “enterprise” be a criminal organization. Like the federal statute, an “enterprise” can be a “group of individuals associated in fact although not a legal entity” such as the Trump campaign or individuals consisting of Trump and others, including Trump attorneys John Eastman and Rudy Giuliani, who facilitated Trump’s overall corrupt goal of overturning Biden’s electoral victory in Georgia and the other battleground states. Like the Tieri indictment, in which I was able to charge separate and distinct crimes to explain them in the context of Tieri’s role as a Mafia boss, the Georgia prosecutor has the ability with the state RICO statute to combine various crimes committed in Georgia to explain to a jury Trump’s overall criminal scheme to keep himself in power.

These acts include most notably Trump’s call to Georgia Secretary of State Brad Raffensperger to “find 11,780 votes”, where Trump’s recorded voice, unlike Tieri’s, is clear and understandable. In addition, there is the evidence of Trump’s effort to induce Gov. Brian Kemp to call a special session of the Georgia legislature to substitute Trump electors for Biden electors and Trump’s organizing of fake electors to be substituted for the Biden electors. As part of the RICO case, the prosecution would also have the right under Georgia’s rules of evidence to prove the similar illegal acts Trump perpetrated in the other battleground states of Arizona, Pennsylvania, Wisconsin and Michigan, and his actions leading to the insurrection at the Capitol on January 6th. These acts would be admissible to show Trump’s intent, motive, knowledge and overall plan to undermine Biden’s electoral win not only in Georgia but also Biden’s win in the electoral college.

As to the specific crimes that can constitute a racketeering pattern, the Georgia statute is far broader than the federal statute. It not only adopts certain federal crimes under its definition of “Racketeering activity,” but it also incorporates Georgia state crimes such as false statements to Georgia officials, influencing witnesses and soliciting others to commit various crimes. It is not hard to see how these crimes can be charged based on the fake electors scheme and the false statements about election fraud in Georgia made to the Georgia legislators, Secretary Raffensperger and Gov. Kemp.

Finally, like the Tieri prosecution, a Georgia RICO indictment would bolster the case against Trump on various aspects of his overall plot to overturn the election in which certain evidence against Trump is not as powerful as the tape-recorded conversation with Secretary Raffensperger. For example, the January 6th Committee presented the testimony of GOP Chair Ronna McDaniel in which she described Trump’s phone call introducing her to Eastman in order to facilitate the fake elector scheme. The Committee argued that this introduction was direct evidence of Trump’s knowing involvement in the facilitation of that scheme. Without the RICO statute, McDaniel’s testimony about that introductory call certainly would not be sufficient evidence to convict Trump beyond a reasonable doubt on the fake elector scheme. However, when McDaniel’s testimony is combined with all the other admissible evidence proving Trump’s knowing and intentional efforts to overturn Biden’s popular vote, the totality of the evidence presents a jury with more than sufficient evidence to convict Trump on the crime of racketeering.

Nick Akerman is a New York 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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