Trump as mobster, Trump trial and RICO: Is a federal racketeering charge in Trump’s future? "If the DOJ wants to convince the MAGA millions that they were wrong about Trump, it must tell a full and unvarnished story of criminality with clear and copious evidence. To tell that story, DOJ should look through the lens of RICO." | "if Trump faces a RICO indictment, being charged as a “racketeer” would be a brand that, even before any jury verdict, can stick like Gorilla glue, especially to a former president."
Trump trial and RICO
"If the DOJ wants to convince the MAGA millions that they were wrong about Trump, it must tell a full and unvarnished story of criminality with clear and copious evidence. To tell that story, DOJ should look through the lens of RICO."
In the 1980s, a now-famous federal prosecutor dusted off a seldom-used legal theory to pursue mobsters, bankers and other criminals. That theory was the Racketeer Influenced and Corrupt Organizations Act, known by its acronym RICO. The prosecutor was Rudy Giuliani. Due in large part to his successful deployment of the act, Giuliani made himself and RICO part of our common lexicon. Decades later, prosecutors should be thinking about whether that same statute could be used against former President Donald Trump, his inner circle and even Giuliani himself.
A legal weapon like RICO was a novel solution to several existing criminal law limitations.
RICO was passed in 1970, and intended primarily as a weapon against organized crime. A legal weapon like RICO was a novel solution to several existing criminal law limitations. It was difficult for prosecutors to connect masterminds at the center of the hub of the conspiracy wheel — the bosses, underbosses and consiglieri — to the spokes of the wheel, the captains, members and associates of mob families, who were directly committing most crimes. Also complicating things, some crimes might be illegal under state, but not federal, law. It was clear organized-crime prosecutors were saddled with outdated legal tools.
RICO broke through these limitations by allowing federal prosecutors to bring behemoth, multipronged criminal conspiracies under a single and unified theory, charging everyone associated with the illegal collective in a single case. When these big cases came down, and suspected operatives were staring at 30-year sentences, many agreed to cooperate against their former bosses. In a real way, prosecutions under this statute crippled the mob in the 1990s. It resulted in many mob bosses, including the so-called Teflon Don, John Gotti, dying in jail.
Yet, RICO was not intended for just the mob. Its drafters understood that otherwise legal entities could also commit large-scale crimes. RICO allowed prosecutors to charge any enterprise, whether corporations or just collections of people, together. Essentially, it allowed a centralized theory of prosecution for attacking an array of criminal activity under a single statute.
Plenty of prosecutors have looked into investigating Trump, but so far no prosecutors have filed any charges against the former president. In my expert opinion, RICO presents an interesting possibility. But it wouldn’t be easy.
To bring a RICO case against Trump and his inner circle, prosecutors would have to look for evidence that the group had common and related criminal aims, and that they committed a pattern of discrete crimes to further those shared goals. RICO provides for 35 separate crimes that can be part of a “pattern of racketeering activity.” The evidence now publicly disclosed in the multiple Trump investigations arguably fits this kind of pattern. This includes federal crimes, such as witness tampering and hacking or stealing voter machines. Then there is separate evidence pointing at possible state crimes, namely conspiracy to commit murder tied to Vice President Mike Pence, and felony murder for the deaths caused during the felonious acts of sedition on Jan. 6. There are dozens and dozens of examples of prosecutors bringing RICO charges for similar crimes as part of a conspiracy. I did it myself as a federal prosecutor, as have many other prosecutors.
But these crimes, which RICO refers to as “predicate acts,” must be connected to related criminal aims. I believe there are currently six interconnected alleged aims possibly at play here.
First, there was an allegedly criminal effort to win the presidency, including through a foreign-influence campaign. Second, there was the allegedly criminal effort to keep the presidency, which included obstructing the Mueller investigation, suppressing disclosure of the Stormy Daniels payment, obstructing the disclosure of Trump’s taxes and obstructing the impeachment investigations. Third, there was the allegedly criminal effort to monetize the presidency, including by using Trump’s hotels and golf clubs in ways that may constitute corruption. Fourth, there was the allegedly criminal effort to extend the presidency and block a peaceful transition of power through the Jan. 6 insurrection and the obstruction of Congress’ certification of the vote. Fifth, there was the allegedly criminal effort to protect Trump’s future political prospects by obstructing the House’s Jan. 6 commission. Sixth, and finally, there was the allegedly criminal effort to conceal state secrets at Mar-a-Lago — although Trump’s reasons for holding onto confidential documents remain unclear.
Based on the evidence presented so far by the Jan. 6 committee, which is focused only on the insurrection, I personally believe the evidence could support a RICO prosecution comprised of a hub, with Trump, Roger Stone, Michael Flynn and other members of his inner circle at the center, and 10 different spokes of criminal activities that accumulate to a common goal.
It is too early to tell whether sufficient evidence exists to tie these schemes to a central criminal purpose. And any prosecution effort along these lines would be massive, incorporating many years and possible statutes of limitations. It’s a daunting prospect.
Attorney General Merrick Garland will likely only get one shot at Trump and his inner circle — if he even tries at all. Bringing successive prosecutions is not politically feasible. If the DOJ wants to convince the MAGA millions that they were wrong about Trump, it must tell a full and unvarnished story of criminality with clear and copious evidence. To tell that story, DOJ should look through the lens of RICO.
The Washington Post reported on Friday that Fulton County, Georgia District Attorney Fani Willis is considering indicting former President Donald Trump for violating her state’s “Racketeer Influenced Criminal Organization” statute, or RICO.
Less discussed, while the “indictment watch” continues in Special Counsel Jack Smith’s classified documents case against Trump, is the possibility that Smith is considering a federal RICO charge in his other Trump investigation, the one related to January 6.
In April, the New York Times reported that Smith was investigating whether Trump fraudulently raised hundreds of millions of dollars from supporters after the 2020 election. Powerful evidence suggests that Trump knew that the premise of the fundraising — that he had won the election — was false; two independent research companies hired by his campaign post-election told Trump that ballot fraud was inconsequential.
In addition, last year’s January 6 Committee produced evidence that much of the money raised wasn’t used for its advertised purpose — to reverse the election. Some, for example, apparently went to Trump hotels.
But a question arises. While fraudulent fundraising is no trivial offense, it hardly compares with trying to end America’s 225-year tradition of the peaceful transfer of presidential power. So why, with time of the essence, is the special counsel’s team spending valuable weeks investigating so much lesser a crime than the main event?
One answer is that Smith may be looking to charge a RICO violation, which carries a 20-year maximum prison term. The statute makes it unlawful for an individual to receive money through “a pattern of racketeering activity” and to use the money to operate or maintain an “enterprise.”
A pattern of racketeering activity is defined as two or more crimes from a list of approximately 100 statutes. Wire fraud — a scheme to deceive others and deprive them of money via the use of electronic communications — is on the list. Fraudulent fundraising by electronic message is a perfect fit. On Monday, the Washington Post reported that prosecutors “have sought to show … that Trump and aides willfully ignored evidence in their push to raise money.”
Importantly, wire fraud seems the least problematic of the very few “racketeering activity” crimes that may relate to Trump’s January 6 activities. For example, “extortion” is on the RICO list, and Trump walked very close to the line in his infamous January 2, 2021 phone call with Georgia Secretary of State Brad Raffensperger. But proving beyond a reasonable doubt that Trump violated the federal extortion statute would not be easy.
Likewise, the crime of interfering with a government proceeding — here, the congressional certification of President Joe Biden’s election — qualifies as “racketeering activity.” Trump pressuring Vice President Mike Pence to unlawfully delay the certification would seem to meet the statutory requirements.
But a minority of Trump-appointed federal judges have said in other January 6 cases that the statute should be limited to cases involving hiding documents from Congress or tampering with witnesses. While that view has not prevailed, the Supreme Court has yet to weigh in on whether that statute applies beyond such efforts to squelch evidence and keep it from Congress. In these circumstances, relying under RICO on that crime, or charging it separately, would carry risk on appeal to the Supreme Court should Trump be convicted.
A RICO charge brings huge advantages to prosecutors. It allows them to tell a coherent story by introducing a wide range of evidence of the enterprise’s legal and illegal activities relating to the enterprise’s operation. Here, the enterprise would likely be the 2020 Trump campaign. It raised the money that is the basis for the alleged wire fraud. It also oversaw the “fake elector” scheme in seven states to advance Trump’s apparent scheme to overturn the election.
Of course, apart from RICO, a 20-year maximum prison term is also the penalty for seditious conspiracy. Juries have convicted 10 militant Oath Keepers and Proud Boys for their roles leading the January 6 mob.
But seditious conspiracy requires proof of an intention to use force. We do not yet know whether Smith can prove beyond a reasonable doubt that Trump intended his followers to use violence at the Capitol. Hence, indicting Trump for a RICO violation based on wire fraud could be the surest way for Jack Smith to convict Trump of a crime with a very long term of imprisonment.
On NATO’s shared burdens, Europe is finally starting to pull its weight Italy has buyer’s remorse over China’s Belt and RoadMind you, Smith’s investigation of Trump’s fundraising may not be about RICO at all, but rather the special counsel simply leaving no stone unturned, with the possibility of charging wire fraud as a separate offense. It carries a five-year sentence, though each electronic message connected to the scheme to defraud may be charged as a separate crime.
We won’t know unless and until a grand jury returns an indictment against Trump relating to January 6. But this much is sure: if Trump faces a RICO indictment, being charged as a “racketeer” would be a brand that, even before any jury verdict, can stick like Gorilla glue, especially to a former president.
Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.
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