In the 1980s, a now-famous federal prosecutor dusted off a seldom-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 prosecutor was Rudy Giuliani. Due in large part to his successful deployment of the act, Giuliani made himself and RICO part of our common lexicon. Decades later, prosecutors should be thinking about whether that same statute could be used against former President Donald Trump, his inner circle and even Giuliani himself.
A legal weapon like RICO was a novel solution to several existing criminal law limitations.
RICO was passed in 1970, and intended primarily as a weapon against organized crime. A legal weapon like RICO was a novel solution to several existing criminal law limitations. It was difficult for prosecutors to connect masterminds at the center of the hub of the conspiracy wheel — the bosses, underbosses and consiglieri — to the spokes of the wheel, the captains, members and associates of mob families, who were directly committing most crimes. Also complicating things, some crimes might be illegal under state, but not federal, law. It was clear organized-crime prosecutors were saddled with outdated legal tools.
RICO broke through these limitations by allowing federal prosecutors to bring behemoth, multipronged criminal conspiracies under a single and unified theory, charging everyone associated with the illegal collective in a single case. When these big cases came down, and suspected operatives were staring at 30-year sentences, many agreed to cooperate against their former bosses. In a real way, prosecutions under this statute crippled the mob in the 1990s. It resulted in many mob bosses, including the so-called Teflon Don, John Gotti, dying in jail.
Yet, RICO was not intended for just the mob. Its drafters understood that otherwise legal entities could also commit large-scale crimes. RICO allowed prosecutors to charge any enterprise, whether corporations or just collections of people, together. Essentially, it allowed a centralized theory of prosecution for attacking an array of criminal activity under a single statute.
Plenty of prosecutors have looked into investigating Trump, but so far no prosecutors have filed any charges against the former president. In my expert opinion, RICO presents an interesting possibility. But it wouldn’t be easy.
To bring a RICO case against Trump and his inner circle, prosecutors would have to look for evidence that the group had common and related criminal aims, and that they committed a pattern of discrete crimes to further those shared goals. RICO provides for 35 separate crimes that can be part of a “pattern of racketeering activity.” The evidence now publicly disclosed in the multiple Trump investigations arguably fits this kind of pattern. This includes federal crimes, such as witness tampering and hacking or stealing voter machines. Then there is separate evidence pointing at possible state crimes, namely conspiracy to commit murder tied to Vice President Mike Pence, and felony murder for the deaths caused during the felonious acts of sedition on Jan. 6. There are dozens and dozens of examples of prosecutors bringing RICO charges for similar crimes as part of a conspiracy. I did it myself as a federal prosecutor, as have many other prosecutors.
But these crimes, which RICO refers to as “predicate acts,” must be connected to related criminal aims. I believe there are currently six interconnected alleged aims possibly at play here.
First, there was an allegedly criminal effort to win the presidency, including through a foreign-influence campaign. Second, there was the allegedly criminal effort to keep the presidency, which included obstructing the Mueller investigation, suppressing disclosure of the Stormy Daniels payment, obstructing the disclosure of Trump’s taxes and obstructing the impeachment investigations. Third, there was the allegedly criminal effort to monetize the presidency, including by using Trump’s hotels and golf clubs in ways that may constitute corruption. Fourth, there was the allegedly criminal effort to extend the presidency and block a peaceful transition of power through the Jan. 6 insurrection and the obstruction of Congress’ certification of the vote. Fifth, there was the allegedly criminal effort to protect Trump’s future political prospects by obstructing the House’s Jan. 6 commission. Sixth, and finally, there was the allegedly criminal effort to conceal state secrets at Mar-a-Lago — although Trump’s reasons for holding onto confidential documents remain unclear.
Based on the evidence presented so far by the Jan. 6 committee, which is focused only on the insurrection, I personally believe the evidence could support a RICO prosecution comprised of a hub, with Trump, Roger Stone, Michael Flynn and other members of his inner circle at the center, and 10 different spokes of criminal activities that accumulate to a common goal.
It is too early to tell whether sufficient evidence exists to tie these schemes to a central criminal purpose. And any prosecution effort along these lines would be massive, incorporating many years and possible statutes 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 even tries at all. Bringing successive prosecutions is not politically feasible. If the DOJ wants to convince the MAGA millions that they were wrong about Trump, it must tell a full and unvarnished story of criminality with clear and copious evidence. To tell that story, DOJ should look through the lens of RICO.