Georgia RICO Law: An Indictment Week Primer

Fulton County District Attorney Fani Willis. Photo: John Bazemore, AP

This is likely the week of the fourth and much anticipated indictment of Donald J. Trump, this time in Georgia state court. The grand jury in Fulton County is meeting today and will hear from more witnesses tomorrow in the case. And if history is any guide, a true bill of indictment will issue shortly after that, with legal experts predicting it could be sent up as early as Tuesday in the late afternoon.

There are many things that distinguish this case from the others already filed against Trump. For starters, it will reportedly charge around a dozen people besides Trump, the kind of unnamed “co-conspirators” discussed in the federal indictment in D.C., but this time with people like Rudy Giuliani and Sidney Powell actually named as defendants alongside Trump.

And legal experts are watching for one other major difference: the inclusion of a state RICO charge. 

RICO is a complicated business. But I hope to simplify it here, then show how it actually, and even probably, will come into play.

I’ll start with why RICO is viewed as a boon to prosecutors in Georgia and walk through how Fani Willis herself has deployed the law recently. Then I’ll cover how to establish its elements under state law. From there, I’ll discuss how those elements appear to have been met in this case. And finally, I’ll discuss why this case is so dangerous for all the defendants named, including the ex-president himself.

Let’s jump right in.

Georgia RICO: a boon to prosecutors

RICO stands for “Racketeer Influenced and Corrupt Organization.” It’s famously been used at the federal level against mob and drug kingpins, those who give out the orders but then use some kind of  enterprise or organization to carry out the crimes, never getting their own hands dirty.

There’s a federal version of RICO, but here we’re interested in the state version under Georgia law. You don’t see this talked about much, but the bar to proving a Georgia state RICO case is actually far lower than under federal law. In fact, it’s easier to meet than in almost any other jurisdiction.

Unlike federal RICO law, under Georgia law prosecutors don’t have to prove an underlying “criminal enterprise.” They only have to prove that the defendants committed some illegal acts in pursuit of a single criminal goal. I’ll explain the difference in detail in a bit. For now, just understand that Georgia RICO is easier than federal.

Experts agree. “Because of its breadth,” said attorney Norm Eisen in an interview with The New Yorker, “Georgia prosecutors are more prone to utilize their criminal RICO provision as a vehicle for major cases.” Because of this, Eisen believes that Georgia is one of the best places for prosecutors to bring a RICO charge. 

Professor Volkan Topalli, who teaches criminology at Georgia State, concurs, explaining it this way: The state’s RICO law creates a “whirlpool effect” for cases charging criminal conspiracies. “If you capture one person in the whirlpool, everyone else gets sucked in along with them.”

Keep that whirlpool in mind as we walk through today’s discussion.

Fani Willis and Georgia RICO

Fani Willis understands RICO law well. She’s famous for having brought broad state RICO charges to bust up a ring of administrators and educators who were in on a scheme to help students cheat on standardized tests, using money to reward those who aided the effort while punishing those that refused to help. 

Willis explained state RICO law perfectly then. “You don’t, under RICO, have to have a formal, sit-down dinner meeting where you eat spaghetti,” she said, likely referencing a famous scene from the movie Goodfellas. “But what you do have to do is all be doing the same thing for the same purpose. You all have to be working towards that same goal. In this case, the goal—inflate test scores illegally.”

Last year, Willis brought a 56-count RICO indictment of more than two dozen people associated with a gang called Y.S.L., including the Atlanta rapper Jeffery Williams known widely as Young Thug. 

And just last week, Willis’s grand jury issued RICO indictments against eight alleged associates of the PDE street gang, who are accused of running a pandemic unemployment insurance conspiracy spanning multiple states. 

That last one is bad news for the Georgia election interference defendants. The same grand jury just saw an example of how to apply the elements of a RICO charge, and it came back with indictments. They are now educated about how the law works, and today and tomorrow they will be getting the case about Trump and his co-conspirators.

It’s almost like Willis planned it that way.

The elements of RICO in Georgia

The gist of RICO in Georgia comes down to proving that there were at least two so-called “predicate crimes” that were committed as a part of an enterprise engaging in a “pattern of racketeering activity.” While that sounds a lot like federal law, the way the elements get defined under Georgia law make it far easier to prove.

So let’s break these elements down. The “predicate crimes” for racketeering include what you might expect the mob to do: murder, witness intimidation, drug offenses, burglary, etc. But they also include more “white collar” crimes like computer trespass, obstruction of justice, and false documents. This winds up mattering a lot in this case. If the jury finds that the defendants committed at least two of these crimes, that will satisfy this part of the statute.

Let’s examine the next element. An “enterprise” is a person or business recognized under state law, or it’s a group or association that identifies as a group with a common purpose or goal. That’s a pretty loose definition. And notably, prosecutors don’t have to prove that there was an organization that itself was a criminal enterprise, only that the group was involved in a “pattern of racketeering activity.”

So what does that last part mean? Here, things get a bit circular, so bear with me.

A “pattern of racketeering activity” means engaging in at least two acts of committing, soliciting or attempting to commit one of the listed “predicate crimes” in order to accomplish at least one common scheme or plan. So, for example, if the common plan of a group was to dominate the Mexican drug trade, and the group killed people and trafficked in drugs to achieve that end, then racketeering charges could be brought against people who were part of that group, even if they themselves didn’t pull the trigger or act as drug mules. 

Importantly, a defendant doesn’t have to have been employed by the enterprise. It is enough that they were associated with the enterprise through its pattern of racketeering.

See how the whirlpool that gets created, sucking in any defendant who was part of the group? Defendants can get caught in the whirlpool, even low level foot soldiers, and then could get hit with RICO charges with all the harsh penalties that come with them.

The RICO whirlpool and the Trump Campaign defendants

Now that we understand what “predicate acts” are, it’s not hard to see that this element is satisfied. We know about the use of false documentation to establish a fake set of Georgia electors (along with fake slates in six other states). That’s at least one predicate act of creating a false document and attesting falsely under oath. 

Knowingly making false statements to Georgia legislators could also qualify as a predicate act, and people like Rudy Giuliani did this quite brazenly, claiming falsely that there were suitcases full of ballots that election workers pulled out from under the table. So there’s two.

Breaking into voting systems and copying and disseminating the software is considered “computer trespass” under the law. And in a bombshell dropped over the weekend, CNN reported that there are communications between the Trump campaign and lower level operatives that evinced a top-down scheme to commit computer trespass in Coffee County, Georgia to try and prove their wild voter fraud claims. Trump attorney Sidney Powell’s fingerprints are likely all over that scheme. That’s three.

Trump’s infamous phone call to Georgia Secretary of State Brad Raffensperger, in which he threatened criminal consequences if they did not “find” 11,780 votes to flip the state to Trump, could comprise solicitation of a government official to commit a crime and intimidation of a state official. So, now that makes four.

Any efforts by the Trump campaign to intimidate election workers like Ruby Freeman would also count, if there’s evidence to back it up. Five.

And there are likely others.

These actions, though separate, are probably enough to form a “pattern of racketeering activity” under the statute, where the common criminal goal was to overturn the results of the 2020 election. That whirlpool could sweep in anyone who was working toward that goal, which is probably why as many as eight of the fake electors have struck immunity deals so that they don’t get charged with a state RICO violation.

RICO is a pretty big stick

There are two things to keep in mind about a possible state RICO charge in Georgia.

First, there is a minimum prison sentence under state RICO law of five years. Everyone found guilty under this charge would get hit with that, including Trump. This isn’t something a sympathetic judge can just decide to waive away.

Second, under Georgia’s fairly harsh clemency law, there is no “pardon” that can come from the governor. Instead, all parole and clemency decisions go before a state panel called the State Board of Pardons and Paroles. But there’s a catch: You have to have served at least a third of your sentence before you are eligible for parole—and few people are granted parole immediately upon becoming eligible.

Otherwise put, it appears that a conviction in Georgia that includes a state RICO charge can’t be pardoned by the Republican governor; there’s a mandatory five-year prison sentence for anyone convicted; and those convicted wouldn’t be eligible for parole for at least 20 months.

Karmic irony?

As legal scholar Norm Eisen observed in that same interview with The New Yorker,

Georgia created its RICO statute in 1980, less to target the Mafia than to go after Black street gangs and “nontraditional conspiracies.”

The legislature wrote the law very broadly and armed prosecutors with the ability to target African American defendants, sometimes unduly harshly, for being just low-level pawns in a much bigger, criminal operation.

Similarly, Georgia has one of the harshest clemency and parole processes of any state. This again has fallen disproportionately upon Black inmates in the state, who can’t even hope to seek any reprieve until they’ve served a significant portion of their sentences.

I disagree strongly with these harsh mandatory penalties and lack of meaningful parole opportunities. But it is fascinating to me that an African American District Attorney could soon use the very same draconian laws upon one of the very symbols of white supremacy: the former president himself.

Of course, we’ll have to see what the charges contain. To simplify and streamline things, Willis could skip the state RICO charges and allege only criminal conspiracies or even just discrete crimes, who knows? But it would be difficult, then, for Willis to justify why she can go after teachers, rappers and pandemic fraudsters with the law but not apply it here, where state RICO charges also seems to fit so nicely.