‘A Freako Is Not a RICO’

The acquittal of the rapper Sean “Diddy” Combs on racketeering and sex-trafficking charges — he was found guilty of lesser crimes of prostitution — is a moment to mark the folly of prosecutors reaching for the Racketeer Influenced and Corrupt Organizations Act, a statute originally designed to prosecute the mafia but that has since sounded a siren call to government lawyers. All too often, racketeering cases have ended in shipwreck for prosecutors.Under RICO, which was signed into law by President Nixon in 1970, a person who commits “at least two acts of racketeering activity” — drawn from a list of federal and state crimes — “can be charged with racketeering if the acts are related to an overarching “enterprise.” If prosecutors can convince jurors of the existence of such a concern, each conviction can carry a 20-year sentence. The rub is persuading a jury that the crimes amount to an enterprise.The Times reckons that Diddy’s defense boiled down to the position that “he’s abusive, but he’s not a racketeer.” The government, the Gray Lady reasons, did not do enough “to convince a federal jury that Mr. Combs was, as charged, the boss of a criminal enterprise.” He may have been the impresario of the so-called freak offs, but prosecutors’ description of him as a “racketeering kingpin” fell flat. We first grew suspicious of RICO when it was deployed in 1983 against financier Marc Rich and his partner, Pincus Green. We wrote after President Clinton pardoned both — he was correct to do so, opprobrium notwithstanding — that the two were charged for the “kind of transfer pricing dispute that would be better negotiated in civil court.” It was a “misuse of a law intended by Congress to be used in other situations.” Mr. Clinton agreed.“RICO, What a Racket,” was the title of an editorial the Journal issued as part of a series opposing its use in white-collar cases like those brought by Mayor Giuliani, then a United States attorney, against Rich and the junk-bond king, Michael Milken, who was pardoned by President Trump. No less an authority than Chief Justice Rehnquist thundered with respect to civil racketeering: “Get RICO Cases Out of My Courtroom.” More recent illustrations of RICO overreach can be found at Fulton County, Georgia. The county’s district attorney, Fani Willis, built her prosecution of Mr. Trump and 18 others for election interference on the Peach State’s racketeering statute. The result is a case of unwieldy complexity from which Ms. Willis is now disqualified for a romance with her special prosecutor, Nathan Wade. Ms. Willis said in 2022, “I’m a fan of RICO.”Ms. Willis also designed a RICO case to convict members of the YSL music label, which she alleged was a criminal gang led by the rapper Young Thug. That case, though, ended last month without a single murder conviction and a raft of acquittals. She had more success using RICO against a group of Atlanta public school teachers. Eleven of the 12 defendants were convicted of racketeering. The Supreme Court in 1989 ruled that RICO could be construed “broadly enough to encompass a wide range of criminal activity, taking many different forms.” Still, its stretch to novel circumstances appears to bring heartbreak for prosecutors and overcharging for defendants. Diddy’s alleged behavior is abhorrent. The last word, though, could go to one of his supporters, who wore a shirt outside the courthouse that read, “A Freako Is Not RICO.”

‘A Freako Is Not a RICO’

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