It might seem odd to some that former President Donald Trump and his co-defendants, many of whom are lawyers and served as senior government officials, were charged with racketeering regarding their alleged attempt to overturn the results of the 2020 election in Georgia.
Racketeering charges are complex but generally speak to dishonest business dealings. Many racketeering prosecutions involve lucrative criminal enterprises, such as illegal drug operations or the Mafia.
Whatever the lawfulness of Trump’s efforts to overturn the 2020 election, no one claims his conduct was part of a Mafia scheme.
I am a scholar of criminal law and procedure. Prosecutors sometimes charge white-collar defendants who are not part of a mob with RICO violations.
Trump is set to be arraigned on Sept. 6, 2023, in Atlanta, for his alleged attempt to overturn the election in that state. At that time, he will be read his formal charges and will plead guilty or, far more likely, not guilty.
A grand jury in Fulton County, Georgia, indicted Trump and 18 other political associates on Aug. 15, 2023. They are facing charges under Georgia’s Racketeer Influenced and Corrupt Organizations Act, often called RICO.
Trump and others, including former Trump attorney Rudolph Giuliani, are also charged with a number of other specific crimes such as forgery, filing false documents and solicitation of violation of oath by a public officer.
RICO’s relatively short history
In 1970, Congress enacted the Racketeer Influenced and Corrupt Organizations law.
Before 1970, prosecutors could prosecute individuals only for conspiracy and other specific offenses, even if they were allegedly Mafia-related crimes and even if the defendants were alleged to be career or professional offenders.
At least 31 states, including Georgia, have since enacted so-called “little RICO” or “state RICO” laws modeled after federal RICO, allowing such prosecutions to be brought in their courts.
The federal and state versions of RICO are notoriously detailed and complex.
In essence, however, most versions of the law create a new, and more serious, offense – namely, engagement in a pattern of specified criminal activity as part of an organization. Sometimes the organization is a criminal gang of some kind that exists to make an illegal profit, such as robbery teams, loan sharks, narcotics manufacturers, professional gamblers or human traffickers.
The organization could also be an otherwise legitimate business or governmental entity. Making money is sometimes, but not always, a factor in racketeering cases.
So-called RICO predicates – the underlying crimes that form the pattern – encompass a wide range of illegal conduct, including crimes as diverse as bribery, mail fraud, kidnapping and murder.
In general, both federal and state judges have interpreted RICO broadly, in both allowing charges and convicting defendants. RICO claims may also be brought by civil plaintiffs. But in such cases only monetary damages and other forms of civil relief may be awarded, and this does not result in imprisonment.
Anyone can get charged with RICO
In 1989, the Supreme Court explained that while RICO was originally intended for gangsters, it could apply to companies and other people who are not part of an organized crime operation, as long as they violated the terms of the statute.
That year, the Supreme Court was considering a case in which the telephone company Northwestern Bell, which was serving the Minneapolis area, was accused of bribing state officials at the Minnesota Public Utilities Commission with gifts and employment in order to win rate increases.
The Supreme Court explained that Congress had organized crime in mind when it drafted the law but intentionally made it broader, encompassing a wider range of criminal conduct.
So, if otherwise upstanding citizens who work for legitimate businesses commit acts of bribery and corruption, this can lead to a RICO charge.
A few years later, in 1994, the Supreme Court unanimously ruled that abortion clinics could use the federal RICO law to sue anti-abortion protesters who conspired to shut them down.
In 1997, the federal government charged a Texas sheriff with RICO after he accepted money from a federal prisoner in exchange for conjugal visits with the prisoner’s wife or girlfriend. The sheriff, Mario Salino, was sentenced to three years in prison and fined $5,000.
Cases in the U.S. Supreme Court included liquor dealers suspected of evading Canadian export taxes and a person accused of transporting automobile titles with falsified odometer readings.
Over the past few decades, many business leaders, politicians and other government officials have been convicted of state and local RICO offenses for various crimes.
In August 2023, for example, a former mayor of Humacao, Puerto Rico, was sentenced to three years and one month in prison for his involvement in a bribery scheme. According to the Department of Justice, the politician, Reinaldo Vargas-Rodriguez, privately accepted cash from two companies in exchange for his giving them municipal contracts.
Georgia courts are on board
Georgia courts agree with the Supreme Court that their state RICO law requires no allegation or proof of “nexus with organized crime.”
A range of people in Georgia have been hit with RICO charges. In 2005, Georgia prosecutors charged a former DeKalb County sheriff named Sidney Dorsey with killing his successor, as well as racketeering and other crimes. Dorsey is serving life in prison. Truck stop owners and operators accused of doctoring the prices and fuel quality labels on gas pumps have also been prosecuted.
Perhaps most relevant to the charges against Trump and his associates, the Georgia Supreme Court rejected a claim by Georgia’s elected commissioner of labor that officeholders seeking reelection were exempt from RICO: “By its express terms, the RICO act includes as a crime a reelection campaign by the holder of public office in which 2 or more similar or interrelated predicate offenses specified in the act are committed.”
It is not yet clear how Trump and his former associates will fare with RICO charges in a Georgia court. But they are far from the first people with no involvement in an organized criminal organization to be forced to defend themselves against racketeering charges.