Could Trump Be Charged as a Racketeer?

As the effort to prosecute President Trump accelerates, we don’t mind saying we are thinking of Robert Bartley. He was the editor of the Wall Street Journal who editorialized against using the Racketeer Influenced and Corrupt Organizations Act to target individuals unconnected to organized crime. His nemesis was the U.S. attorney in Manhattan, Rudolph Giuliani, who stretched RICO to prosecute Wall Street tycoons. Mr. Guiliani’s approach was vindicated, after a fashion, in a 1985 case, Sedima S.P.R.L. v. Imrex, where the Supreme Court, by five to four, held that RICO’s civil provisions ought to be interpreted broadly. That holding flowed from an expansive reading of the statute, as Justice Byron White reasoned that the law was “an aggressive initiative to supplement old remedies and develop new methods for fighting crime.” Bartley’s fight was not fruitless, as Justice Department guidelines remind federal prosecutors that invoking the statue “requires particularly careful and reasoned application.” It is the “policy of the Criminal Division that RICO be selectively and uniformly used.” That is, “not every proposed RICO charge that meets the technical requirements of a RICO violation will be approved” despite Congress’s call that it be “liberally construed.”Writing in the New York Times, our editor once called the effort to ensnare Marc Rich and a business associate with RICO “an error and a tragedy” and that to “use alleged wire fraud in oil sales and tax matters as predicate acts” for a RICO prosecution was a “misuse of a law intended by Congress to be used in other situations.” President Clinton, in pardoning, made the same case, noting the DOJ’s warning of the use of RICO in tax cases. We mention all this because of the report of our A.R. Hoffman that the district attorney of Fulton County, Georgia, Fani Willis, is eyeing the use of racketeering law against President Trump in connection with his phone calls after the 2020 election. She’s added a RICO ringer to her staff in the person of John Floyd, who’s written the book on such prosecutions at the state level. Ms. Willis has broadcast that charges are “imminent.”Readers of legal tea leaves took note of Ms. Willis’s move to block a special jury’s report on efforts to interfere with the 2020 election in Georgia. That maneuver telegraphed that she wants a clear field to hand up those “imminent” indictments. She notes that we “need to be mindful of protecting future defendants’ rights.” We suspect — it’s only a suspicion — that at least some of those defendants will be fending off charges thrown off by Georgia’s RICO statute. Georgia’s racketeering law is broader than the federal law. Ms. Willis has bragged to the Washington Post that she has racked up “more RICO indictments in the last 18 months, 20 months, than were probably done in the last 10 years out of this office.” On her ledger are RICO convictions for public school teachers and an ongoing case against a rap label, YSL. She argues that YSL is a gang in the guise of a band. If Ms. Willis does turn to racketeering law to target Mr. Trump, it would strike us, for one, as another example of the law’s arm being stretched to fit a defendant. From the January 6 committee’s flirtation with attainder to document probe at Mar-a-Lago, overreach has been the one constant in attempts to prosecute the former president. It would do no one any justice to use Lavrentiy Beria’s principle of “show me the man and I’ll show you the crime.”

Could Trump Be Charged as a Racketeer?

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