State prosecutors in Fulton County, Georgia may very soon ask a grand jury to indict former President Donald Trump — and others who allegedly assisted him — for their attempts to undermine the 2020 presidential election vote in that state. Those criminal charges could include violations of Georgia’s Racketeer Influenced Corruption Organizations (RICO) Act. But what is RICO, and how might Fulton County District Attorney Fani Willis apply it to Trump’s vote-stealing efforts?
In 1970, following these Senate hearings and amid much consternation in the press and law enforcement, Congress gave the Justice Department a new and powerful tool.
In 1969, Mario Puzo published “The Godfather” — a fictionalized account of a violent New York-based organized crime family headed by patriarch Vito Corleone. But organized crime was not a fiction in this country. Senate hearings in the 1960s examined how ruthless and powerful crime families throughout the United States — like the make-believe Corleones — infiltrated unions, extorted businesses, peddled drugs, bribed public officials and committed violent acts to sustain and grow their criminal enterprises. Organized crime was a significant and pervasive threat.
In 1970, following these Senate hearings and amid much consternation in the press and law enforcement, Congress gave the Justice Department a new and powerful tool to combat organized crime: the RICO Act.
The drafters of the federal RICO statute understood that criminal syndicates used many different people to commit many different crimes. Those seemingly disparate criminal acts were in service of a single criminal enterprise and designed to buttress the strength and influence of the sponsoring crime family. Lawmakers realized it was harder to go after each crime and each criminal individually than to sweep all the crimes and all the criminals into one prosecutive RICO bucket. So how does RICO work?
A RICO prosecution — simplifying a bit — requires the government to prove that an individual, working for an “enterprise,” engaged in a “pattern of racketeering activity” by committing at least two underlying “predicate” acts. The federal RICO statute enumerates the qualifying predicate crimes — among them, murder, bribery, extortion and fraud. The list is long.
Numerous states soon recognized the value of having a statute like RICO on their books. Since 1970, about three dozen states have enacted their own RICO laws, modeled on the federal example. Georgia, in 1980, was one of them. Some of the states closely followed the Justice Department’s federal statute. Others, like Georgia, significantly broadened the reach of RICO liability within their state in several ways, including with the addition of more predicate acts — acts that are included under the RICO umbrella and can trigger a RICO prosecution.
Could the conduct of certain people in the Trump campaign organization — those who sought to substitute fake electors for real electors, for instance — make them part of a criminal enterprise for purposes of the Georgia RICO statute? Yes. In fact, one important way in which the Georgia RICO statute is broader than its federal counterpart is that it includes, as predicate acts, the crimes of forgery and false statements. To the extent that “fake” electors created and signed false documents, that conduct could bring them within the scope of the Georgia RICO Act, assuming the other requirements of the statute are met.
Georgia prosecutors have also already demonstrated their willingness to use the state RICO statute broadly.
Georgia prosecutors have also already demonstrated their willingness to use the state RICO statute broadly, to punish criminal “enterprise” conduct far removed from mob bosses and their crime families. For instance, about a decade ago, teachers and administrators in the Atlanta public school system were charged with violating the state RICO law for inflating the test scores of students. One of the lead prosecutors on that unusual RICO case? Fani Willis.
In any Georgia fake elector scheme, the prosecutors, of course, would need to prove their case in court and convince a unanimous jury beyond a reasonable doubt that the defendants violated Georgia law. But the Georgia RICO statute gives them a powerful way to do this. As numerous Atlanta teachers and school administrators learned the hard way, RICO — at least in Georgia — is not just for the Corleones.
Chuck Rosenberg
Chuck Rosenberg is a former United States attorney, senior FBI official and Drug Enforcement Administration chief. He is currently an MSNBC legal analyst and the host of "The Oath" podcast, a production of NBC News and MSNBC.