The Patriot Post® · In Brief: The Flawed RICO Charge
Donald Trump was hit with his fourth indictment Monday by Fulton County DA Fani Willis for the “crime” of claiming he won Georgia in 2020. Former federal prosecutor Andy McCarthy faithfully weighs in on such things, and his analysis is always worth a read.
He’s clearly not a fan of Trump, but neither is he a fan of ridiculous prosecutorial efforts aimed essentially at rigging the 2024 election. In this particular case, he explains why Willis’s use of RICO charges was a bridge way too far.
DA Willis’s claims of experience in organized-crime cases notwithstanding, I don’t think she grasps RICO. If she does, then she is using it in lieu of the simpler crime that any prosecutor would prefer to charge — plain old conspiracy — in order to try to paper over the big hole in her case.
The hole is that the objective of the schemes described in her 98-page indictment — namely, to retain Trump in power despite his election loss — is not a crime per se. Of course, if people pursue a lawful objective through illegal means, they may commit crimes in implementing those means. But a conspiracy, very simply, is an agreement between two or more people to commit a crime. The conspiracy need not be successful to be prosecutable because, in conspiracy, the crime is the agreement itself not the crime the conspirators agreed to commit. If we agree to rob the bank but the police get wind of the plan and arrest us on the way to the bank, we are guilty of conspiracy to commit bank robbery, even though we can’t be prosecuted for actual bank robbery. That said, though, the crucial point is that the objective of the agreement must be a crime. If a group of people take egregious actions in the pursuit of an objective that is not a crime, there is no conspiracy — even though, collaterally, some of the egregious actions may amount to crimes if they violate penal statutes.
Willis seeks to obscure this problem by charging a RICO conspiracy. I assume she figures it works as a vehicle for tying together a narrative about a large group of people involved in various types of bad behavior. But she misses the point of what RICO is meant to do.
He recounts the history of RICO, which was, to put it simply, a way to more easily charge organized criminals. “The innovation of RICO,” he explained, “is that the essence of the crime is membership in the group, not the component schemes carried out by the group.”
This is where I believe Willis’s theory founders.
In fact, she gets it wrong right out of the starting gate, describing Trump and his 18 alleged co-racketeers as a “criminal organization.” This is just dumb. If you could prove they conspired to do something illegal, you could accurately call them members of a criminal pact; but the 19 defendants are not even members of a single organization, much less one that is innately criminal.
He concludes:
Willis, by contrast, is turning to RICO because she can’t charge an overarching conspiracy to achieve a criminal objective. Instead, she can prove a lot of chicanery carried out in the service of a lawful aim. But alleging that Trump and his 18 co-defendants orchestrated this chicanery as part of an “enterprise” does not solve her problem.
National Review subscribers can read the whole thing here.