The law has been used by Fulton County District Attorney Fani Willis to charge former President Donald Trump and 18 others over their efforts to challenge the 2020 presidential election results. It appears that Ms. Willis didn’t need to stretch the law; as written, it could be applied to much more trivial acts than what she alleged.
Applying the statute to petty, although technically illegal, activity would amount to abusing it, according to Christopher Timmons, a trial attorney, former prosecutor, and expert on Georgia RICO.
While such abuse hasn’t yet occurred, there have been some situations in which an overly expansive use of the law was contemplated, he told The Epoch Times.
“I’ve talked people out of using the statute,” he said.
The law is extremely powerful in ferreting out gang and mob-style criminal activity. It’s designed to nab kingpins who intentionally keep themselves several steps removed from the illegal activity they command.
However, theoretically, it also could be used to impose lengthy sentences on people who’ve minimally overstepped the bounds of law, even if they did so for a good cause.
The Trump indictment appears to be somewhere in the middle—it alleges criminal activity, while also using some of the complex extremities of the statute that significantly rely on what the accused was allegedly thinking, rather than doing.
It’s exactly the reliance on a criminal state of mind that may prove to be the weakest point of the case, Mr. Timmons and others suggested.
Sprawling Law
RICO laws date back to efforts in the 1970s to root out organized crime; the federal RICO statute was enacted as part of the 1970 Organized Crime Control Act. It took some years for prosecutors, but the law was eventually used to imprison a number of high-profile mob bosses.
At least 33 states have enacted their own RICO statutes, starting with Pennsylvania in 1973. In 1980, Georgia was the sixth state to do so.There are major differences between the federal and Georgia RICO laws.
The federal statute requires the existence of an organization whose members engage in continuous illegal activity specifically listed in the law. RICO crimes include what could be expected from a mob enterprise, including murder, kidnapping, robbery, extortion, bribery, drug dealing, witness tampering, and even mail fraud, wire fraud, and counterfeiting.
The Georgia statute doesn’t necessarily require an organization or that the targeted criminal activity be continuous, according to John Malcolm, senior legal fellow at the conservative Heritage Foundation and a former federal prosecutor in Georgia.
The law prohibits engaging in a “pattern of racketeering activity.” That simply means committing two of the listed crimes in a way that makes them somehow “interrelated by distinguishing characteristics,” such as by similar intents, results, methods, accomplices, or victims, the law says.
In addition to all of the federal RICO crimes, Georgia’s statute includes prostitution, unlicensed alcohol production and sale, production and sale of bootlegged movies, several computer crimes, theft, and lying to public employees.
“The easiest way to put it is, colloquially, lying, cheating, and stealing,” Mr. Timmons said.
The inclusion of many low-level crimes means the law would technically apply to relatively banal circumstances.
“You could literally go from stealing a pair of tube socks at JC Penney, go next door to Sears, steal another pair of tube socks and be charged under the Georgia RICO Act,” Mr. Timmons said.
“Now, no prosecutor is ever going to do that, because there is prosecutorial discretion there. No jury in the world would convict on that. They would find that just a gross abuse of power. But the statute is broad enough to allow that.”
This category of RICO charges requires the criminal to obtain money or something material out of the endeavor.
There’s another way to charge it that doesn’t require monetary gain but rather prohibits participation “directly or indirectly” in an “enterprise through a pattern of racketeering activity.”
Such an “enterprise” doesn’t need to be a formal organization. It could be one person or an associated group of people, the law says.
The people involved don’t need to know everybody else involved. In fact, they don’t need to know most of the others, but “they do have to have worked in some way with somebody inside the conspiracy,” Mr. Timmons said.
In addition, the goal of the “enterprise” doesn’t need to be anything illegal on its own, as long as the means used to accomplish it are illegal.
“It would be a crime to use legal means to achieve an illegal goal, and it would be a crime to use illegal means to achieve a lawful objective,” Mr. Malcolm said.
The law goes even further, though, targeting not just the commission of the crimes, but even their solicitation. As such, trying to convince somebody to engage in any of the listed crimes also counts as “racketeering activity.”
“Soliciting someone to commit a crime could be enough, so long as the intent was clear and it was not said in jest,” Mr. Malcolm said.
“Think about soliciting someone to commit a murder for hire, and the would-be hit man tells the authorities.”
Moreover, doing anything “involving” a narrower list of crimes, including murder and kidnapping, but also theft or obstruction of justice, also counts as “racketeering activity” as long as the crime carries more than a one-year sentence.
“I assume it means that the scheme was designed to accomplish that unlawful act or that unlawful act was committed as part of a scheme to accomplish some other objective,” Mr. Malcolm said.
The law goes further still, though, making it illegal to “conspire or endeavor” to violate the RICO law.
Even just committing “any overt act to effect the object of the endeavor” is enough, the statute says.
An overt act doesn’t need to be anything illegal on its own. If a bank robbery is planned, renting the getaway car would suffice, according to Mr. Timmons.
In the Trump case, texting somebody an address of an airport is listed as an “overt act” in furtherance of a conspiracy.
Differing from the federal conspiracy law, the Georgia one requires only “tacit agreement,” he said, providing an example of two New York Rangers fans’ spontaneously ganging up on a New York Islanders fan.
“I start heading over because I’m going to kick this guy’s [expletive]. And some other dude that I’ve never met before—he’s in a Rangers jersey—decides to jump in. And we just beat the tar out of this Islanders fan. That’s what we refer to as a tacit agreement.”
However, the law could also be used in a way that doesn’t require any agreement whatsoever. Even a single person could be “endeavoring” to violate RICO by having a plan and engaging in one overt act, according to the statute.
No one has ever used the law to its outer limits, according to Mr. Timmons. Referring to his hypothetical sock thief example, he said: “I’ve never seen anybody get anywhere close to that level of abuse. It wouldn’t be ethical to do that.”
Trump Case
The Trump indictment employs the conspiracy part of the statute, alleging that President Trump and others conspired and endeavored to be associated in a common purpose and to engage in a pattern of racketeering activity to accomplish that purpose.
On its face, the case doesn’t seem to rely on the bare minimum to establish a RICO violation. Rather than just one overt act, it alleges 161 overt acts.It also doesn’t stop at alleging that the racketeering activity was merely plotted but claims that 34 acts of racketeering were actually executed.
A closer examination of the alleged racketeering acts, however, describes activity that substantially relies on criminal intentions for it to be characterized as criminal.
Seventeen of the 34 alleged acts are false statements, false writings, filing false documents, or perjury. They’re largely claims of election irregularities by President Trump and others.
The surest way to dispel such accusations would be to prove the claims weren’t false in the first place, Mr. Timmons said.“I would suspect that the folks defending this case are going to take a shot at proving that there was election fraud. I don’t know how they’re going to do it. But that’s how I would do it,” he said.
“The second piece is, ‘OK, maybe there wasn’t election fraud, but all our guys believed it.’”
The Georgia “false statements and writings” statute refers to “a statement that is knowingly and intentionally false that’s made to a government agency or an individual working for the government, in an area that’s within that individual’s jurisdiction,” he said.
Proving an intentionally false statement can be daunting. For example, the fact that somebody was told something is false or was presented with contrary evidence doesn’t mean he believed it was false.
“That’s where it gets difficult, because it is the subjective belief of the person who made the statement,” Mr. Timmons said. “You are free to disregard information.”
The requisite proof needs to be something close to having the person himself conceding that he didn’t believe what he was saying, he said.
President Trump may have been repeatedly told that his assertions about the election were false, but that’s not necessarily a case-winning argument, according to Mr. Malcolm.
“I have no doubt that there were lots and lots of people telling that to Donald Trump. I also know that there were lots and lots of people—perhaps all misguided, perhaps all delusional—who were telling Donald Trump that the election was stolen,“ he said. ”I know that for a fact because I know some of those people. And I know what they were saying, and they still believe it.”
Another part of the case deals with an effort to establish alternative slates of electors in several states, including Georgia.
Lawyers who were advising President Trump on that matter, Kenneth Chesebro and John Eastman, were charged, as were those who served as the alternative electors in Georgia.
The idea of alternative electors dates to the presidential race of 1960, when John F. Kennedy challenged Richard Nixon’s election victory in Hawaii. Democrats set up an alternative slate of electors without approval from the state’s governor, and when a recount indeed shifted the win to Kennedy, Congress counted the alternative slate as the legitimate one.
Ms. Willis, however, argues that those involved committed forgery, impersonating a public officer, and false writings by preparing the alternative elector certification and submitting it to authorities.
Charging lawyers for pursuing a legal theory, even a dubious one, is a sticky business, according to Mr. Malcolm.
“What is the difference between a lawyer pursuing a far-fetched legal theory and committing a crime? It is a very hazy line, which is why if you’re going to indict a lawyer, you had better have massive proof, way more than I think she’s got,” he said.
A legal theory need only be “colorable” to give a lawyer a leg to stand on in court, he said.
“Colorable means that that it’s not completely preposterous, that there is some plausible argument to be made,” he said.
“All the time, lawyers make arguments that make other lawyers roll their eyes and go, ‘That’s ridiculous.’”
Another part of the indictment alleges that several people associated with the Trump camp committed three acts of influencing witnesses by trying to make an Atlanta election worker acknowledge participation in election fraud. Again, the matter would be cast in a different light if the people involved actually believed the election worker engaged in fraud and they were trying to convince her to tell the truth.
Lastly, the RICO case includes a Jan. 7, 2021, incident in Coffee County, Georgia, where a digital forensics firm copied data from election machines to examine it for evidence of election manipulation.
Ms. Willis charged the people involved with computer theft, computer trespass, and computer invasion of privacy. She also alleged that organizing the inspection and later accessing the data were racketeering acts themselves. The statute cited in the indictment indicates that she plans to characterize them as activities “involving” theft.
“One only needs common sense to know that when permission is given to engage in the conduct being prosecuted, there can be no crime,” her lawyer said in a recent court filing.
Ultimately, the case touches on the issue of free speech, according to Mr. Malcolm.
President Trump had a right to claim that the election was stolen from him and push officials to overturn it, as long as he didn’t threaten them, he argued.
“I have yet to see any proof that Donald Trump hasn’t been completely wrong in every factual assertion that he made then and that he makes now, but it doesn’t mean he didn’t believe it.”
