Problems with the Georgia RICO Charge

Flashy, but probably not a good choice

The Georgia indictment of Donald Trump and eighteen co-defendants made quite a splash. The lead count charges all defendants with a sweeping RICO conspiracy to overturn the results of the presidential election in Georgia and other states. The RICO charge attracted a lot of attention both because it joins all nineteen defendants together in a single nationwide conspiracy and because of the mystique surrounding RICO and its association with organized crime.

The indictment is an impressive document. But having had more time to look at the case, I think using RICO was probably a mistake. There are going to be some significant legal challenges to RICO that will complicate and bog down the prosecution. Most of the prosecution’s goals could have been achieved more quickly and simply through a series of smaller conspiracy cases.

This is going to require a nerdier-than-usual deep dive into some legal weeds, but I hope you’ll bear with me. As a story, the RICO count is a great read. As a criminal charge, I’m not convinced it will have a happy ending.

The Georgia Mugshots (credit: Reuters)

RICO 101

Congress passed the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) in 1970. As the name suggests, RICO was aimed primarily at organized crime families and similar groups engaged in long-term, systematic criminal conduct. Prosecutors have also used RICO’s sweeping terms to prosecute corruption, fraud, and other white collar offenses, even with no connection to organized crime.

The Georgia RICO statute was passed in 1980. It is modeled on the federal law and is very similar to it. As you have no doubt heard in recent weeks, it is even broader than the federal law in some respects.

Although the laws are not identical, the Georgia state courts regularly note that they will look to federal cases about federal RICO for guidance when interpreting their own RICO statute.

RICO penalizes engaging or conspiring to engage in activities that are already crimes, but doing so in an organized and repeated way. It prohibits engaging not in isolated criminal acts but in a “pattern of racketeering activity.”

The section of Georgia’s RICO law used in the Trump indictment, Georgia Code § 16-14-4 (b), provides:

It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

Subsection (c)(1) prohibits conspiracies to violate section (b), and that’s the charge against the Georgia defendants.

This language is almost identical to the federal RICO counterpart, 18 U.S.C. § 1962(c).

This charge requires the government to prove:

• There was an “enterprise”

• The defendant was employed by or associated with that enterprise, and

• The defendant conducted or participated in that enterprise

• Through a pattern of racketeering activity

Let’s break that down.

The Enterprise

Georgia law defines “enterprise” as follows:

“Enterprise" means any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental as well as other entities.

Once again, this is very similar to the federal definition, 18 U.S.C. § 1961(4).

This case involves a so-called “association in fact” enterprise – individuals associated in fact although not a legal entity. The Georgia indictment charges that all 19 defendants, along with 30 unindicted co-conspirators, constituted an enterprise as a “criminal organization.” It alleges the members had connections and relationships with each other and that the enterprise “constituted an ongoing organization whose members and associates functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise.”

This indictment language tracks language from U.S. Supreme Court cases describing the characteristics of an association in fact enterprise.

The First Problem: Was There a Single Enterprise?

The objective of this sprawling enterprise, the indictment alleges, was to “change the outcome of the election in favor of Trump.” The alleged enterprise operated not only in Georgia but in other states, “including, but not limited to, Arizona, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin, and in the District of Columbia.”

This language purports to describe a single enterprise — but proving that might be another matter. Prosecutors must prove that each of the 19 defendants were associated with and participated in this enterprise as described and agreed to help it succeed. Will prosecutors be able to prove, for example, that county election officials in Georgia who allegedly tampered with a couple of voting machines were knowingly associated with a nearly fifty-person nationwide criminal operation to overturn election results in seven states? Or were they actually only part of a smaller-scale criminal agreement?

This a common issue in big conspiracy cases: the question of single vs. multiple conspiracies. Prosecutors may charge a large group of defendants and allege they participated in a single vast conspiracy, when the evidence shows there were actually several smaller conspiracies. (This was one of the issues that recently led a court of appeals to reverse the convictions of two parents in the “Varsity Blues” prosecution, who were improperly tried as members of a single vast conspiracy that did not actually exist.)

Expect to see a number of defendants arguing that, whatever they may have done individually, they never conspired to associate with this large, multi-state enterprise or with most of the other defendants. Sidney Powell, for example, has already made such an argument in support of her motion to sever her case and have a separate trial:

“It cannot be disputed that Ms. Powell went her own way following the election, and she never reached an agreement on a course of action with any indicted or unindicted coconspirator—and certainly not any illegal course of action. She was not part of any group “associated in fact”, or an “ongoing organization” that functioned as a “continuing unit” for any purpose.”  

All of these 19 defendants and 30 unindicted co-conspirators may have been part of the cast of characters in the full story of the varied events leading up to January 6. That’s a far cry from proving beyond a reasonable doubt they all joined a single “ongoing organization” that functioned as a “continuing unit.” But that’s the burden prosecutors have assumed by charging a single RICO enterprise and a single conspiracy.

Racketeering Activity

The government also must prove that the defendants participated in the enterprise (or conspired to do so) through a “pattern of racketeering activity.”  This requirement has two components: there must be acts of “racketeering activity,” and those acts must form a “pattern.”

The RICO statutes provide long lists of crimes that qualify as “racketeering activity.” For federal RICO, the list includes dozens of federal offenses and several categories of state crimes.

The Georgia RICO statute takes the federal list as a starting point and expands from there – one way in which the Georgia statute is broader than the federal one. It defines “racketeering activity” to include 43 different crimes under Georgia state law. It also includes the federal crimes included in federal RICO, as well as any act that would constitute murder, extortion, gambling, arson, narcotics offenses, and several other crimes under federal law or the laws of any state or territory.

The Georgia crimes in this case that qualify as racketeering activity include making or soliciting false statements and writings, impersonating a public officer, forgery, filing false documents, and influencing witnesses. The indictment alleges the defendants committed multiple violations of these statutes, which satisfies the requirement of racketeering activity.

The Second Problem: The Pattern Requirement

In addition to proving the defendants participated in the enterprise (or conspired to do so) through acts of racketeering activity, prosecutors must show that those acts constituted a “pattern.”

If this were a federal RICO case, the charge would almost certainly fail for lack of a sufficient pattern of racketeering activity.

The federal and Georgia laws both define “pattern of racketeering activity” as requiring “at least two acts of racketeering activity.” But in H.J. Inc. v. Northwestern Bell the U.S. Supreme Court said that alone is not enough for federal RICO. Proving a “pattern,” the Court held, requires proof of “continuity plus relationship” among the acts of racketeering. The acts must have the same or similar purposes, results, participants, victims, or methods of commission or be otherwise interrelated (relationship) and must take place over a substantial period of time (continuity).

There doesn’t seem to be any problem in the Georgia case with meeting the “relationship” element – the alleged acts of racketeering shared a common goal of overturning the election. Continuity, however, is another matter.

The Requirement of Continuity

As I noted above, the Supreme Court in Northwestern Bell held that to constitute a pattern, acts of racketeering activity require not only relationship but continuity. The Court held that continuity could be shown either by acts that took place over a substantial period of time or acts that by their nature threatened long-term criminal activity, even if they were cut short

A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months, and threatening no future criminal conduct, do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct.

There is no hard and fast rule for what constitutes a “substantial period of time.” But as the Court noted, “a few weeks or months” is not enough. The 11^th Circuit Court of Appeals, the federal appellate court that includes Georgia, holds that the requirement of closed-ended continuity cannot be met with schemes that last less than one year.

The Georgia indictment alleges that the enterprise – the association of the defendants seeking to overturn the election – began on November 4, 2020, when Trump falsely claimed he had won. The purpose of the conspiracy, the indictment charges, was to “unlawfully change the outcome of the election in favor of Trump.” Logically, that enterprise would have ended in the early morning hours of January 7, 2021, when Biden’s victory was certified by Congress. At the very latest, it would have ended when Biden was inaugurated.

The entire story of the events leading up to January 6 is about two months of frantic activity trying to stop the election results from being certified. After Biden’s inauguration, changing the outcome of the election in favor of Trump was no longer possible. The participants in the alleged enterprise largely went their separate ways.

If there was a single enterprise, it lasted for about two months. After the inauguration, there was no longer an “ongoing organization” or “continuing unit” as required. Individual members of the enterprise may have gone on to commit additional crimes, but those crimes could not be in furtherance of an enterprise that no longer existed. Two months of activity — even frantic activity — is not enough under federal RICO.

What the Indictment Says About the Pattern

I think Fulton County District Attorney Fani Willis recognized the potential issue with the continuity of the pattern. To head off that challenge she has tried to stretch the time the alleged enterprise was operating. I don’t think it really works.

Of the 161 overt acts and acts of racketeering activity alleged in the RICO count, 154 of them – about 95% -- took place between November 4, 2020 and January 20, 2021. Once again, that seems like the true lifespan of any enterprise related to overturn the election.

There is one act alleged in April 2021 relating to transmitting data from Georgia voting machines, and two acts by Trump in September 2021 when he wrote to Georgia Secretary of State Brad Raffensperger making false claims about the election and asking him to decertify it. The final four overt acts in 2022 consist of defendants allegedly making false statements or committing perjury during the Georgia or Congressional investigations.

The indictment claims that the enterprise operated from November 4, 2020 to September 15, 2022 – nearly two years. That is made possible only by including those last few alleged false statements or acts of perjury as part of the conduct of the enterprise. But those lies cannot be acts of racketeering in furtherance of the enterprise, because as a factual matter an enterprise aimed at overturning the election no longer existed. Those last few acts seem more like efforts by individual defendants to keep themselves out of trouble.

Even if we stretch to include the September, 2021 letter from Trump as part of the pattern of racketeering activity, the pattern still only lasted about ten months. If we exclude that letter on the grounds that the enterprise no longer existed, the pattern lasted only three months. Under settled law in Georgia, that wouldn’t be enough to constitute a pattern for a federal RICO charge.

Do Georgia State Courts Take a Broader View?

DA Willis may be counting on Georgia state courts interpreting the state RICO charge more broadly and not requiring any proof of continuity. And she does have some law on her side. Georgia state appellate courts have occasionally approved RICO patterns that last less than a year, although usually without directly addressing the continuity requirement. But the state Supreme Court has not weighed in on the question.

The case most often cited for the proposition that Georgia state RICO does not require continuity is Dover v. State, from the Georgia Court of Appeals in 1989. But Dover is a weak authority. The defendant in Dover was found guilty of RICO based on a string of arsons and related insurance fraud. He argued there was not a “pattern” because all his crimes related to a single incident or scheme. (The argument that RICO requires multiple schemes had been adopted by some courts but was rejected for federal cases by the Supreme Court in Northwestern Bell.)

In rejecting his claim, the Georgia appeals court said:

“Our legislature intended to and did . . . subject to the coverage of our RICO statute two crimes, included in the statute as designated predicate acts, which are part of the same scheme, without the added burden of showing that defendant would continue the conduct or had been guilty of like conduct before the incidents charged as a RICO violation.”

In other words, two crimes that are part of the same scheme suffice. But it’s not clear whether the court rejected Dover’s defense because one scheme is enough or because it didn’t matter how long that scheme went on. Although the court purported to distinguish the Georgia statute by noting that it requires the acts to be related, that is also required by federal law after Northwestern Bell. And although the Georgia statute does not explicitly mention continuity, that too is true of the federal law.

Northwestern Bell was decided by the U.S. Supreme Court just about a week before Dover, and probably after the Dover opinion was already written. Dover doesn’t address the Northwestern Bell arguments about RICO’s focus on long-term conduct and how that affects the definition of “pattern.”

If I were representing one of the Georgia defendants, I would absolutely challenge the RICO charge for failure to allege a sufficient pattern of racketeering activity. I don’t think Dover directly tackled the question — and even if it did, as a decision of the intermediate appellate court it would not be the final word.

Perhaps the Georgia Supreme Court would hold that the heavy hammer of RICO can indeed be applied to a “pattern” of criminal activity that takes place in a single afternoon. But there are good reasons it might be reluctant to do so. Simply providing another means to punish isolated or short-term criminal activity was not the goal of RICO. Requiring no continuity would potentially subject a huge amount of routine criminal conduct to RICO charges, with their hefty penalties, at the whim of the prosecutor.

Recall that Georgia courts routinely say they will look to federal RICO decisions for guidance on how to interpret the state statute. If they do that on this issue, they should find that the pattern is legally insufficient.

RICO Was the Wrong Choice

None of this is to say that the conduct in Georgia should not be punished. But RICO seems like a poor choice. It allowed the DA to make a splash by charging all 19 defendants together and alleging a nationwide conspiracy. But prosecutors probably would have been better off charging a series of smaller, non-RICO cases.

The D.C. federal case focuses on the same allegations, but special counsel Jack Smith took a rifle shot approach, charging only Trump. He now has a realistic shot at going to trial before the 2024 election with a manageable case. The same can’t be said of Georgia, where the sheer number of defendants and legal complexities surrounding RICO threaten to bog down the proceedings.

Georgia prosecutors could have brought one indictment related to the fake electors scheme, one related to tampering with the voting machines, one related to improperly pressuring state officials, and one related to harassing election workers, along with some individual charges of perjury and false statements. Each case would have had several defendants instead of nineteen. And each case would have been much smaller and much more manageable.

That would have meant separate cases and separate trials, but that is almost certain to occur anyway. The defendants are already splintering between those who want a speedy trial and those who want delay, and those who want to move to federal court and those who don’t. Prosecuting all 19 defendants at the same time would be a logistical nightmare and was probably never in the cards. And charging several smaller conspiracies would have the singular benefit of being more consistent with the facts.

A big, sprawling RICO case gets attention, but it wasn’t necessary. The DA will have to expend considerable time and resources to defend the RICO allegations. I think there’s a decent chance that charge will fail. Even if prosecutors are ultimately successful, it may turn out not to have been worth it. There were much simpler ways to hold these defendants accountable.