Trump Faces a RICO Charge — What Does That Mean?

Fulton County District Attorney Fani Willis last year described Georgia’s Racketeer Influenced and Corruption Organization (RICO) law as “a tool that allows a prosecutor’s office or law enforcement to tell the whole story.” 

In Monday’s indictment of former President Donald Trump and 18 other defendants with racketeering charges in connection with their efforts to overturn the results of the 2020 election, the complicated law with the unusual name becomes the framework for telling a story that will have historic consequences.

“The indictment alleges that rather than abide by Georgia’s legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia’s presidential election result,” Willis said in a Monday night press conference.

Georgia’s RICO law is based on a 1970 Federal law, also known as RICO, which was originally passed to tamp down Mafia and organized crime activity. The Georgia General Assembly enacted a state version in 1980 because, according to reporting from the Atlanta Journal-Constitution, it was concerned about “the increasing sophistication of various criminal elements.” 

Most states have subsequently passed their own version of the law with various modifications.

RICO laws allow prosecutors to charge a group of people for illegal activity, even if the individuals were not directly involved in committing every crime. Under these laws, prosecutors can combine several alleged crimes into a single racketeering charge. 

A RICO charge was not intended to only be used for organized crime. A 1989 Supreme Court opinion explains that the law was made “broadly enough to encompass a wide range of criminal activity, taking many different forms and likely to attract a broad array of perpetrators,” according to reporting from the Associated Press. 

In the Trump case, the defendants, described in the indictment as a “criminal organization whose members and associates engaged in various related criminal activities,” are accused of impersonating a public officer, forgery, filing false documents, conspiracy to defraud the state, among others. Willis confirmed on Monday night that she intends to charge all 19 defendants together. 

“Unlike [special counsel Jack Smith] Smith's indictment, Willis's use of RICO means that small acts that support illegal actions all contribute to the plan to overturn the Georgia election results,” Susan Liebell, Saint Joseph's University political science professor told The Messenger. “Willis needs to show how a group of people worked together towards a goal. Her indictment quotes the accused conspirators as they caution each other not to tell anyone about a meeting or the voting of the false electors.”

The federal RICO law was enacted because the federal government wanted a law that would “allow them to go after the heads of the Mafia families, rather than just the foot soldiers,” explained Michael Mears, a law professor at John Marshall Law School. 

Georgia’s RICO law is broader than the federal statute. To violate the federal law, a defendant needs to have been directly or indirectly a participant in an “enterprise” through a “pattern of racketeering activity,” which is defined as “at least two acts of racketeering activity committed within ten years of each other.” An enterprise is understood as either a group of people who are all trying to accomplish the same goal or it can refer to an individual.

Georgia’s law, by contrast, as Mears describes it, has “almost an unlimited number” of crimes that can fall under the RICO act, and gives the prosecutor much broader authority to go after leaders of the enterprise in question than the federal statute does. Under this law, prosecutors can look at crimes that took place outside of Georgia as evidence so long as they prove a larger racketeering scheme.  

To be charged under the Georgia law, there must be two underlying crimes, but unlike the federal law, Georgia’s does not have the 10-year time constraint.

The sentence for a RICO charge in Georgia includes between five to 20 years in prison, and/or an up to $25,000 fine, or three times the amount of money acquired through the racketeering activity. 

Georgia’s RICO law applies to any organization, both criminal and not, that is using illegal means to achieve a goal. “It doesn’t have to be a mob, it doesn’t have to be the Mafia,” Mears said. “It could be a legitimate company where people within that company are using illegal means to accomplish other things.”

In order for Trump to be convicted, the prosecutors will only need to prove that one of the other members of the group committed a crime as part of a plan to overturn the results of the election. “If one of Trump's fellow defendants in this RICO case is proven to have committed perjury, forgery or interfered with the results of the election” Mears said, “Trump as a co-conspirator can be convicted even if he did not commit the actual forgery, perjury, etc.”

“Using RICO allows her [Willis] to list phone calls, texts, emails, and reports as evidence of the attempt. For example, Trump sat in the Oval Office and listened to advisers suggest appointing Sidney Powell as Special Counsel,” Liebell noted.

Willis has extensive experience with RICO prosecutions. In 2013, Willis brought RICO charges against 35 Atlantic public school teachers and administrators for falsifying test records in order as a way of getting promotions and bonuses. Most of the educators who were charged took plea deals, but in 2015, after a trial that lasted seven months, 11 out of the 12 defendants were convicted.

Willis is also currently using RICO to prosecute hip hop artist Jeffery Lamar Williams, known as Young Thug and others, alleging that the artist’s record label “Young Slime Life” is involved in gang activity. Young Thug pleaded not guilty. Jury selection for the case is still ongoing. 

“Fani Willis knows the RICO statute up and down,” said Mears. “She's proven that she can get convictions using the statute, so I think Trump’s defense should be very wary.”