Former U.S. President and Republican presidential candidate Donald Trump speaks at a campaign rally in Windham, New Hampshire, U.S., on August 8, 2023. REUTERS/Reba Saldanha/File Photo Get license rights
Aug 16 (Reuters) – Georgia’s state law against fraud could be a powerful tool to prosecute Donald Trump, but using charges traditionally used to bring down organized crime could bog down the case in legal and logistical problems.
Fulton County District Attorney Fannie Willis on Monday charged the former Republican president and 18 associates in a broader scheme to swing the 2020 presidential election loss in Georgia to Democrat Joe Biden.
All are charged with violating the state’s Racketeer Influenced and Corrupt Enterprises, or RICO, statute.
Originally designed to bring down Mafia bosses, RICO charges are now widely used to go after groups of loosely related individuals bound only by common participation in a criminal enterprise. But there are drawbacks to casting such a wide net.
“You can tell a great story in your indictment, and you can prove it. But you can also make it more complicated,” said former federal prosecutor Harry Sandick.
Echoing his criticism of several investigations he has faced, Trump attacked the allegations as a political “witch hunt” and accused Willis, an elected Democrat, of trying to sabotage his 2024 presidential comeback bid.
By contrast, US special counsel Jack Smith this month charged Trump alone on a four-count charge of conspiring to defraud the United States by preventing Congress from certifying Biden’s victory. The lawsuit cites six unindicted and unnamed co-conspirators.
Smith requested that the trial begin on January 2. Willis faces a long road ahead.
He has said the trial is on target for the next six months, but experienced lawyers expect the case will certainly be delayed because of the number of defendants, each of whom may raise separate pretrial issues.
“The problem with RICO is that it takes too long,” said Jerry Froelich, a Georgia criminal defense attorney and former prosecutor. “I don’t know if you can find a courtroom big enough for 19 defendants.”
But numbers can also work in favor of prosecutors.
In RICO cases, defendants are often loosely related, making it easy for prosecutors to “flip” them or turn on each other.
“That’s why the web is so wide spread,” Froelich said. “There will be a lot of pressure on people to cut contracts.”
RICO enables prosecutors to charge so-called “overt acts.”
Willis’ 98-page indictment is thin on narrative detail, but it lists 161 apparent acts by the defendants that prove they “intentionally joined in a conspiracy to swing the election in favor of Trump.”
Some of those actions — including Trump’s social media posts and meetings with elected officials — aren’t criminal in nature.
“It will be a challenge — though certainly not an insurmountable one — for prosecutors to prove that these individuals were part of an enterprise with a common, illegal purpose,” said the Boston College law professor and former federal prosecutor. Jeffrey Cohen.
Georgia’s RICO statute is broader than the federal statute it is modeled after and does not require criminal enterprises to operate as long. Georgia courts have made sure to apply the law in new contexts, including Willis’s successful lawsuit against teachers who falsified scores on standardized tests.
The unprecedented nature of the case could work in Trump’s favor, allowing his lawyers to argue that it would be inappropriate to charge the former US president and his associates with gang members.
But the risks of a trial may be greater than in a typical conspiracy case.
“In a normal case, if you’re convicted and serve five years, you can get probation,” Froelich said. “There’s a five-year minimum here. And the judge can say: ‘You tried to overthrow the United States government. I’m not cutting you any slack.’
Reported by Jack Quinn in New York; Editing by Nolene Walter and Howard Koller
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