Georgia’s RICO Racket

What is District Attorney Fani Willis up to in her racketeering case against President Trump et al in Georgia? That question tugs at us after the guilty plea by one of Mr. Trump’s former attorneys, Jenna Ellis. Her plea is to a felony, but she will avoid jail time by working with the prosecutors. She is the fourth defendant to come to such an arrangement. None will see the inside of a jail cell. Yet none have had to admit to racketeering. What kind of racket is this? The conventional wisdom is that these guilty pleas are an effort to focus the prosecution on Mr. Trump and, among others, Mayor Giuliani. The four defendants who turned state’s evidence have promised to testify “truthfully” — to, so to speak, spill the beans. The more cooperation, the theory goes, the more Mr. Trump should squirm. Letting defendants like Ms. Ellis off the hook, prosecutors will insist, is a small price to pay for her to sing.At some point, though, it would appear that this case, built on Georgia’s version of the Racketeer Influenced and Corrupt Organizations Act — “RICO” for short — would want to turn up some real life racketeering. That is especially true because a racketeering charge presents all sorts of advantages for prosecutors, who can spin a conspiratorial web predicated not only on alleged crimes, but on otherwise innocuous “acts.”The Department of Justice, sensing the potential for abuse of this protean charge, requires the approval of higher-ups before prosecutors can seek an indictment under the RICO Act. The government, despite the Supreme Court’s holding that the law should be interpreted “broadly,” also warns against using the charge with excessive imagination. Yet Ms. Willis has emerged as a RICO partisan, using the law against teachers and even rappers.If things continue apace, though, a scenario could emerge in which none of the defendants — save, maybe, Mr. Trump and one or two other big fish — are guilty of racketeering. While one of the defendants who has pleaded — the bail bondsman, Scott Hall — reasonably appears to be at the case’s periphery, the triad of cooperating attorneys —Ms. Powell, Ms. Ellis, and Mr. Chesebro — are often figured as the legal brains beyond the alleged plot.If Ms. Willis could not make a racketeering charge stick against them, or did not think that a trial on that charge was worth the candle, it appears fair to wonder whether the case is itself an unripe — or wormy — peach. In Georgia, a RICO charge is no mere technicality. It carries a five year minimum sentence behind bars, raising the possibility that Ms. Willis charged it less to convict than to squeeze her 19 defendants into a tale of her own telling. Imagine, then, what would happen were a squeeze play turned around. That is, if President Trump were to open negotiations with, say, Ms. Ellis or, say, Mr. Chesebro and strike a written agreement with them in return for their “truthful” testimony. In his case he could, one imagines, pay their legal fees or oppose, should they be convicted, their getting a long sentence. If it were a federal case, he could even dangle a future pardon. Ms. Willis would no doubt at the top of her lungs cry witness tampering and seek to have him jailed. But what is the difference between her squeezing a witness and the defense doing so? We know that the history of plea bargaining is a long train of powder, but what is the logic of only one side having access to bargaining for favorable testimony? Just because this kind of thing is done all the time does not mean that it is part of due process.

Georgia’s RICO Racket

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