In the 1980s, a now-famous federal prosecutor devised a rarely 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 prosecution was Rudy Giuliani. Due in large part to his successful deployment of the law, Giuliani made himself and RICO part of our common lexicon. Decades later, prosecutors should think about whether that same statute can be used against former President Donald Trump, his inner circle, and even Giuliani himself.
A legal weapon like RICO was a new solution to several existing criminal law restrictions.
RICO was adopted in 1970 and was primarily intended as a weapon against organized crime. A legal weapon like RICO was a new solution to several existing criminal law restrictions. It was difficult for prosecutors to connect masterminds at the center of the conspiracy wheel – the bosses, underboss and consiglieri – with the spokes of the wheel, the captains, members and associates of mafia families, who directly committed most of the crimes. Complicating matters, some crimes may be illegal under state law, but not under federal law. It was clear that organized crime prosecutors were saddled with outdated legal tools.
RICO broke through these restrictions by allowing federal prosecutors to bring massive, multiple criminal conspiracies under a single and unified theory, indicting everyone involved in the illegal collective in one case. When these big cases came up and suspected agents awaited 30-year sentences, many agreed to team up against their former bosses. In fact, prosecutions under this statute paralyzed the crowd in the 1990s. It resulted in many mafia bosses, including the so-called Teflon Don, John Gotti, who died in prison.
Yet RICO was not intended for only the mob. The authors understood that otherwise legal entities could also commit large-scale crimes. RICO allowed prosecutors to sue any corporation, be it corporations or just collections of people, together. Essentially, it enabled a centralized theory of prosecution for attacking a range of criminal activities under a single statute.
Numerous prosecutors have investigated Trump, but so far no prosecutors have filed charges against the former president. In my opinion, RICO offers an interesting opportunity. But it wouldn’t be easy.
To file a RICO case against Trump and his inner circle, prosecutors would have to look for evidence that the group had common and related criminal targets and that they committed a pattern of discreet crimes to further those shared goals . RICO provides 35 separate crimes that could be part of a ‘pattern of extortion activity’. The Evidence Now Made Public in the multiple Trump investigations probably fits this kind of pattern. This includes federal crimes such as: witness of tampering and hacking or stealing voter machines. Then there is separate evidence pointing to possible state crimes, namely: conspiracy to commit murder linked to Vice President Mike Penceand felony murder for the dead caused during the January 6 criminal sedition. There are dozens and dozens of examples of prosecutors Charge RICO fees for similar crimes as part of a conspiracy. I did it myself as a federal prosecutor, like many other prosecutors.
But these crimes, which RICO calls “basic acts,” must be related to related criminal purposes. I believe there are currently six interrelated alleged targets that may be at play here.
First, there was an alleged criminal attempt to win the presidency, including by a campaign with foreign influences. Second, there was the alleged criminal attempt to retain the presidency, which included obstructing the Mueller investigation, suppressing disclosure of the Stormy Daniels payment, obstructing disclosure of Trump’s taxes, and obstructing disclosure. investigation into allegations. Third, there was the alleged criminal attempt to monetize the presidency, including by using Trump’s hotels and golf clubs in ways that could involve corruption. Fourth, there was the alleged criminal attempt to extend the presidency and block a peaceful transfer of power through the January 6 uprising and obstruction of the vote by Congress. Fifth, there was the alleged criminal attempt to protect Trump’s future political prospects by obstructing the House’s Jan. 6 committee. Sixth, and finally, there was the alleged criminal attempt to Hide state secrets in Mar-a-Lago — though Trump’s reasons for holding confidential documents remain unclear.
Based on the evidence presented so far by the Jan. 6 commission, which focuses only on the insurgency, I personally believe the evidence could support a RICO prosecution made up of a hub, with Trump, Roger Stone, Michael Flynn and other members of his inner circle in the middle, and 10 different spokes of criminal activity that accumulate to a common goal.
It is too early to say whether there is enough evidence to link these schemes to a central criminal target. And any prosecution effort in this direction would be huge, with many years and possible statute 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 tries at all. Successive prosecutions are politically unfeasible. If the DOJ wants to convince the MAGA millions that they are wrong about Trump, it must tell a full and unequivocal crime story with clear and abundant evidence. To tell that story, DOJ would have to look through the lens of RICO.