Fani Willis, by Charging Trump and Other Defendants With Racketeering, Takes a Gamble on a Much-Disputed Law

District Attorney Fani Willis’s indictment charges 19 defendants whose occupations have run the gamut from publicist for Kanye West to mayor of New York City to president of the United States. They all now have something in common — they are accused racketeers. Each and every defendant stands accused of participating in a “criminal enterprise” under Georgia’s RICO — Racketeer Influenced and Corrupt Organizations — statute. That law, a species of conspiracy, allows prosecutors latitude to charge widely if they can establish a common cause. It is the tie that holds together an indictment that seeks to convict those 19 defendants of 41 charges.The federal counterpart to Georgia’s RICO law is so powerful a tool that federal prosecutors are required to ask permission before using it. Department of Justice guidance mandates, “No RICO criminal indictment or information or civil complaint shall be filed, and no civil investigative demand shall be issued, without the prior approval of the Criminal Division.”A “Preface” accompanying that regulation reasons, “Utilization of the RICO statute, more so than most other federal criminal sanctions, requires particularly careful and reasoned application.” DOJ higher-ups warn that they “will not approve ‘imaginative’ prosecutions under RICO which are far afield from the congressional purpose of the RICO statute.” One Georgia defense firm, Lawson & Berry, notes that “it takes less to prove a pattern of racketeering activity under the Georgia statute than the federal one.” It also, the attorneys note, defines racketeering “more broadly” than the version President Nixon signed into law in 1970.As far back as 1989, Chief Justice Rehnquist warned in an op-ed in the Wall Street Journal — “Get RICO Out of My Courtroom” — that “virtually everyone” agreed that RICO, or at least its civil version, was “being used in ways that Congress never intended.” Some of the credit for that could be ascribed, with high irony, to one of Ms. Willis’s defendants, Mayor Giuliani. Mr. Giuliani’s proclivity for the statute dates to when he was the top prosecutor for the Southern District of New York, where he wielded it with such vehemence and frequency that the Journal, in the same year it published Rehnquist’s RICO dissent, jocularly called him “Mayor Rico” for his success using the law to prosecute organized crime in the 1980s. Mr. Giuliani’s signature RICO moment came in 1985, at the denouement of a 10-week trial against the leaders of New York’s “Five Families” that netted eight convictions against what he called the “board of directors” of the mafia. At the time, he crowed that the outcome “resulted in dismantling the ruling council of La Cosa Nostra.” The United States Attorney for New York’s southern district, Rudolph Giuliani, left, on March 13, 1986. AP/Richard DrewThe approach of the man who would become mayor was validated by the Supreme Court in a 1989 case that ruled the law should be construed “broadly enough to encompass a wide range of criminal activity, taking many different forms and likely to attract a broad array of perpetrators.” The law, the justices found, “acknowledges the breakdown of the traditional conception of organized crime, and responds to a new situation” where criminal activity can take more exotic shapes.One prosecutor whose record indicates that she could well have studied both Mr. Giuliani’s record and that high court decision is none other than Ms. Willis, who told the Washington Post earlier this year, “I have right now more RICO indictments in the last 18 months, 20 months, than were probably done in the last 10 years out of this office.” She has lauded its utility in “telling the whole story” of a criminal prosecution.For Ms. Willis, those stories have included prosecuting a ring of public school teachers for inflating student grades. She used Georgia’s racketeering statutes to convict 11 of 12 of the educators at trial. She is also using the racketeering cudgel against a rapper, Young Thug, who the state has accused — like Mr. Trump — of leading a criminal operation.Ms. Willis wants the trial of Mr. Trump and the others just charged to begin in half a year. Her RICO reach, though, could eventually come before the Supreme Court on appeal. The justices would then be called upon to decide, in considering the constitutionality of this state law, whether they stand with Rehnquist’s skepticism of RICO or their predecessors’ embrace of its breadth.

Fani Willis, by Charging Trump and Other Defendants With Racketeering, Takes a Gamble on a Much-Disputed Law

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