Trump, Giuliani, and the RICO Racket Redux

“Think of the Racketeer Influenced and Corrupt Organizations Act and you might conjure up visions of fresh-faced prosecutors bringing down organized-crime kingpins. Think again. Thanks to the Gang That Can’t Shoot Straight — Congress — the 1970 RICO statute has instead become the scourge of corporate directors, accountants and others whose only link to a racket is the tennis court.”That paragraph is from an editorial, “RICO, What a Racket,” issued by the Wall Street Journal 25 years ago. We were then pulling an oar in the Journal’s editorial galley. The paper, in a series of editorials, opposed the use of RICO against suspects of white-collar crime. It was particularly critical of the then-United States attorney in the Southern District of New York, Rudolph Giuliani. He’d used RICO against, among others, Marc Rich and Michael Milken.We mention this now because of the news that — in a breathtaking example of the warning that “what comes around goes around” — the district attorney of Fulton County, Georgia, Fani Willis, has handed up racketeering charges not only against President Trump but against Mr. Giuliani. It means that Mr. Giuliani is in danger of spending years in prison under a law the use of which he had pioneered in cases having nothing to do with the mafia.The inventor of the boomerang couldn’t have made up this plot. It’s not our intention to put the gloss on the deeds of either the 45th president or the former associate attorney general of America, a post Mr. Giuliani once held. It is our intention, though, to mark the fact that our opposition to using anti-racketeering law in this way goes way back. The legal critics who have opposed using RICO type laws in non-mafia cases make up a distinguished field.“Get RICO Cases Out of My Courtroom” was the headline the Journal put over a piece by one of those critics, William Rehnquist, then Chief Justice of the United States. He was writing about civil RICO. The Chief Justice did concur in an opinion supporting a broad use of RICO and asserting that neither the RICO act’s language nor legislative history supports a rule restricting its applicability to organized crime.Yet the Chief Justice joined a concurrence that was written by Justice Scalia and was only grudgingly supportive. In any event, criticism of RICO’s use has been bipartisan. Unease over RICO was one of the reasons President Clinton pardoned Rich, at the time a fugitive financier. President Trump did not cite RICO, but did pardon Mr. Milken. The Justice Department itself placed its own restrictions on using RICO.So dangerous does the Justice Department consider the RICO law to be that its guidance, our A.R. Hoffman notes, includes a “Preface” stating that “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.” We wouldn’t flag this save for the fact that Ms. Willis’ entire case seems to hang on RICO. Every one of the 19 individuals charged in Georgia, Mr. Hoffman notes, is accused of racketeering. The racketeering and corrupt organizations act Georgia is using is a state law, but many of its principles overlap with the federal law. If Ms. Willis’ racketeering theory runs aground in either the trial court or on appeal, the whole prosecution could falter.We carry no brief for either Messrs. Trump or Giuliani. We do carry a brief for due process. One of the issues with RICO is the way its penalties can be marshaled or multiplied to force suspects or persons accused into settling. There is also the vagueness of the law, a problem that bedeviled, say, the Honest Services statute until it was finally curtailed by a unanimous Supreme Court. So we make no prediction, just offer a cautionary note.

Trump, Giuliani, and the RICO Racket Redux

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