How an old-school Georgia D.A. could prosecute Trump like a crime boss

Former President Donald Trump is no stranger to legal scrutiny. He faced his first federal lawsuit in 1973, has cycled through federal bankruptcy court, spent much of his business career suing people and being sued, and he's the only president to have been impeached twice. Trump is currently at the center of two federal investigations, and his company is facing a criminal trial and potential civil charges in New York state.

But "of all the government investigations now underway into Donald Trump, the one that is receiving the least attention may end up being the most consequential," Michael Barbaro said in a recent episode of The New York Times podcast The Daily. "And that's the one unfolding right now in Georgia," where Fulton County District Attorney Fani Willis is overseeing a sprawling investigation into efforts by Trump and his allies to overturn President Biden's electoral victory in Georgia.

Willis is playing her cards close to the vest. But there is widespread speculation that Willis may be preparing to hit Trump or people in his orbit with racketeering charges, using Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act. Here's a look at how the Atlanta-area district attorney could prosecute the Trump campaign as if it were a criminal enterprise:

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

What is RICO, and how does it work?

When most people think of RICO, "they conjure an image of a Mafia boss overseeing a vast organized crime ring," a group of legal experts at the Brookings Institution wrote in an October 2021 analysis of Fulton County's Trump investigation. "To be sure, RICO statutes were enacted with organized crime in mind, but over the past half century, federal and state RICO laws have been used more broadly to target criminal enterprises engaged in patterns of criminal conduct."

A RICO law "recognizes that if violations of individual criminal statutes by a single person are bad," the Brookings analysts write, "an enterprise that repeatedly violates the law is worse and should be subject to additional sanction."

"In fact, Rudy Giuliani, who has been identified as a target in this investigation, earned a lot of ink back in the '80s when he went after some of the most prominent mafia families in the New York area using the federal RICO law," Times reporter Richard Fausset said on The Daily. "And the idea of RICO is based on this sense that sometimes it can be very hard to outline the full extent of a criminal enterprise," so you need a law that can piece together disparate crimes — say, prostitution, protection rackets, and petty theft — into one organization working toward the same criminal goal.

Georgia's RICO law, enacted in 1980, is similar to the federal law but in some ways broader.

Why do people think Willis is considering RICO in this case?

Willis said as much when she launched the investigation in February 2021, just weeks after taking office. She also knows Georgia's RICO law well — she made her reputation in 2014 as the lead prosecutor in a successful RICO case against 11 Atlanta public school educators involved in a cheating scandal. And in March 2021, she hired John Floyd — a RICO expert who worked with her on the 2014 case, when she was an assistant district attorney — as a special assistant in her office to work on any case involving racketeering.

"I always tell people when they hear the word racketeering, they think of The Godfather," Willis told The New York Times in February 2021, but "if you have various overt acts for an illegal purpose, I think you can — you may — get there" with any otherwise lawful organization.

"I'm a fan of RICO. I've told people that," Willis said in late August, while announcing racketeering charges against an Atlanta gang that targeted celebrities. "And the reason that I am a fan of RICO is I think jurors are very, very intelligent. Some people don't want to do jury service, but once they get there, we really find that they're good citizens there, they're very smart, they pay attention. They take these matters seriously. But they want to know the whole story. They want to know what happened."

How might Georgia's RICO law apply to Trump's campaign?

"With RICO, you establish this idea of a criminal enterprise," and the various "pieces and parts of the organization don't have to necessarily all be talking to one another or know the exact shape of the full thing, but they're all committing these acts in furtherance of the criminal enterprise's criminal goal," Fausset explains on The Daily. In the case of the mafia, it's pretty easy to see how that works — prostitution, gambling, drugs — and if Willis is really putting together a RICO case here, "the idea ostensibly is that the criminal enterprise in this case is the Trump campaign itself."

"There are two potential 'enterprises' here for purposes of the RICO statute: the Trump campaign and the presidency itself," the Brookings analysts write, and "using either or both of those positions to engage in a pattern of racketeering activity could sustain a RICO charge."

"Based on our assessment," they elaborate, Trump may be liable for a number of Georgia crimes, including "(1) false statements and writings; (2) solicitation of false statements and writings; (3) solicitation of false swearing; (4) influencing witnesses; and (5) solicitation of computer trespass." All of those can be used to prove RICO cases, the Brookings team adds, and "proving at least two of them could meet the element of a pattern of racketeering activity."

We know Willis is investigating the scheme to put forward 16 fake Trump electors claiming to represent Georgia, Giuliani's presumptively false statements to Georgia legislators, the meddling with voting machines in rural Coffee County, the abrupt removal of U.S. Attorney Byung Pak after he declined to advance discredited election fraud cases, and phone calls Trump and his allies made to Georgia officials, especially Secretary of State Brad Raffensperger.

The covertly recorded phone call in which Trump asked Raffensperger to "find 11,780 votes" — one more than Biden's 11,779-vote lead — is the crown jewel in Willis' case, former federal prosecutor Gene Rossi told Vice News. "I think the most damning piece of evidence is still the phone call in which Trump asks to find a specific number of votes."

Could a local Georgia district attorney really bring down a former president?

Legally, yes. "We conclude that Trump's post-election conduct in Georgia leaves him at substantial risk of possible state charges predicated on multiple crimes," including "prosecution under the state's RICO statute," the Brookings analysts conclude. "Moreover, this would not be the first RICO prosecution involving public officials" in Georgia, including a state Labor Department head whose RICO conviction — similar to the case against Trump — was upheld by the state Supreme Court.

"In our federal system," the "states have both the primary responsibility and authority to make determinations about matters within their purview," the Brookings analysis found. "Following settled Supreme Court precedent (including the recent case of Trump v. Vance), Georgia state prosecutors certainly have the power to investigate and charge a former president for willfully reaching into their jurisdiction to allegedly transgress their laws and interfere with their officials on a matter of utmost state interest: the administration of Georgia's election procedures."

"We've seen so many times ways in which President Trump has been able to skirt any kind of responsibility for behavior that people have found being questionable, if not illegal," Fausset says on The Daily. "But in the case of the Georgia investigation, what the potential defendants are going to be confronted with is Georgia state law," and "local law is very explicit on questions like solicitation to commit election fraud in the state of Georgia. They're buried in a big book of statutes that really, pretty much, only Georgia lawyers know about."

"But they're there. And they're very real," Fausset adds. "And if it comes to pass that this local prosecutor is the person who ends up indicting President Trump or brings a successful case against President Trump, I think it'll say a lot about the way our system of laws works in this country," where we "automatically think" federal law "exists on a higher plane than local law."

Will Willis really try?

"I think she's going to be able to make a case," and honestly "it's not a complicated case," Georgia criminal defense lawyer Page Pate, who has known Willis for years, tells Vice News. "She's not going to go through all that if she doesn't have probable cause to move forward."

It isn't entirely up to Willis, The Guardian notes. Her special grand jury can stay impaneled until May, but it can only submit a report recommending prosecution, and the case would then — if Willis agrees — go to a regular grand jury for possible indictments.

"An investigation is like an onion," Willis said in February 2021. "You never know. You pull something back, and then you find something else. ... Anything that is relevant to attempts to interfere with the Georgia election will be subject to review."

And in some ways, it would be easier for Willis to prosecute Trump, Fausset argues. "For somebody like Merrick Garland, the attorney general, he's appointed by Joe Biden. And we've seen play out in a very dramatic way in the last few days and weeks this concern that the Department of Justice, in going after Trump and some of these other investigations, is going after their chief political rival."

"Well, Fani Willis, the district attorney in Fulton County, doesn't have to deal with those things," Fausset adds. "She is a Democrat. She's an elected official. But her actions don't necessarily get scrutinized in the same light as somebody like the attorney general or the Department of Justice. She's just a lawyer trying cases in a courthouse pretty far from Washington.

"It kind of gets back to the previous thing she said, 'I don't like a bully,' and the fact that she is this classic, old-school prosecutor," Fausset said. "I think she's somebody who believes that there should be consequences for people who violate the laws of the state of Georgia. And you can just see how this presents a very unique sense of potential peril for President Trump and for the people around him."