The Georgia Case Against Trump Relies on a Dangerous Application of RICO Law

District Attorney Fani Willis’ preferred weapon wasn’t designed to be used this way.

In 1969, Lawrence Speiser, the director of the American Civil Liberties Union's Washington, D.C., office, appeared before Congress to testify against a proposed law that would greatly expand the powers of federal law enforcement. "Our constitutional system of government wisely limits the range of methods available to us, reflecting our historical commitment to liberty and justice rather than to efficiency and expediency," Speiser said. "To the extent that this puts us at a disadvantage in dealing with the criminal organization, it is a price we must pay, for ultimately it is this which distinguishes the lawful from the lawless society."

Despite Speiser's warnings, Congress passed and President Richard Nixon signed the Racketeer Influenced and Corrupt Organizations (RICO) Act. Intended to crack down on the mafia, the law enabled prosecutors to build conspiracy cases by using certain state and federal crimes as "predicate acts" to establish an "enterprise." Within a few years, through increasingly aggressive prosecutions, the law's scope expanded to encompass a much wider range of conduct than originally intended. As L. Gordon Crovitz noted in a 1990 Reason article, "Ambitious federal prosecutors have now discovered RICO's many uses, and this poses a great danger to civil liberty and free enterprise."

Since the federal law was established, more than 30 states have adopted RICO statutes of their own. Georgia's version, passed in 1980, is substantially broader than the federal law. In August, Fulton County District Attorney Fani Willis, a Democrat and self-proclaimed "fan of RICO," used Georgia's law to charge former President Donald Trump and 18 co-defendants with racketeering, which is punishable by up to 20 years in prison. But contemptible as the alleged actions of Trump and his cohorts may be, Willis is wielding the RICO statute in a way that is far afield from the law's original intent, and the case threatens to impinge on activity protected by the First Amendment.

The charges in the indictment, Trump's fourth since leaving office, stem from the defendants' collective efforts to subvert the results of the 2020 presidential election in Georgia. Highlights include a January 2021 phone call in which Trump pressured Secretary of State Brad Raffensperger to "find" enough votes to change the election outcome in Georgia (charged as solicitation of a felony); a lawsuit that included numerous "materially false statements" about illegal voting (charged as knowingly filing a false document); and a plan to present "alternate" electors, which the indictment says involved various crimes, including forgery, impersonating a public officer, and false statements on "matters within [the] jurisdiction of state or political subdivisions."

Trump's argument has always been that his claims about election fraud were not lies because he believed them. According to that defense, for example, Trump did not encourage Raffensperger to violate his oath of office when he implicitly threatened him with criminal liability if he failed to "find" the votes necessary to reverse Joe Biden's victory in Georgia; Trump merely asked Raffensperger to do his job by investigating credible allegations of fraud.

If the case goes to trial, a jury will face the unenviable task of psychoanalyzing Trump and determining if he truly believed the cockamamie theories he floated, if he knew them to be false, or if he was willfully blind to the distinction. In the absence of criminal intent, such false statements are constitutionally protected speech.

The case also raises questions about the scope of Georgia's RICO law, which covers many more predicate offenses than the federal version, prescribes a weaker test for establishing an "enterprise," and does not require ongoing racketeering activity. As a result, it is much easier to prosecute someone for racketeering in Georgia even when the alleged offenses bear little resemblance to the activity of La Cosa Nostra.

In 2014, Cherokee County District Attorney Shannon Wallace used the RICO law to prosecute three court reporters for improperly formatting their court records to create extra billable pages. They were accused of collecting more than $485,000 in unearned wages. Instead of settling for fraud or theft charges, prosecutors alleged that the reporters' actions constituted a pattern of racketeering activity. Each pleaded guilty to racketeering and was sentenced to between four and eight months in prison, in addition to financial restitution.

The following year, Willis, then a deputy district attorney, used Georgia's RICO statute to secure 11 convictions and 21 guilty pleas in a case involving Atlanta public school educators who helped students cheat on standardized tests. In that case, the "enterprise" was the school system.

Trump's indictment also includes numerous questionable allegations in service of the RICO charge. The indictment describes 161 overt acts, which need not be crimes; they simply must demonstrate that a conspiracy was more than just talk. The acts include many descriptions of conduct protected by the First Amendment.

Act 1, for example, is the November 4, 2020, speech in which Trump declared that he had won reelection. Act 5 is a November 20 Oval Office meeting with Michigan legislators in which Trump "made false statements concerning fraud." Act 22 involves a December 3, 2020, tweet in which Trump called attention to Georgia Senate hearings on his election fraud claims: "Georgia hearings now on @OANN. Amazing!"

When Justice Department special counsel Jack Smith announced a federal indictment of Trump in August, he noted that Trump "had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won." What Trump did not have the right to do was pursue "unlawful means of discounting legitimate votes and subverting the election results." Notably, Smith decided not to charge Trump with incitement based on his speech preceding the January 6, 2021, Capitol riot, perhaps to avoid First Amendment objections.

Trump and his co-defendants' actions in Georgia were disgraceful. If a jury determines that the former president knowingly pressed false claims, criminal punishment may be warranted for specific offenses. But as the latest and most prominent demonstration of RICO's ever-expanding applications, the Georgia indictment reflects the dangers that Speiser perceived half a century ago, when he cautioned that this new prosecutorial weapon would be "more far-reaching than its supporters suggest" and warned that "the possibilities for abuse are manifold."