- Fulton County District Attorney Fani Willis is famous for her aggressive use of RICO.
- The law — designed for going after the mob — makes sense for her investigation into Donald Trump, experts say.
Across the US, Fulton County District Attorney is famous for one thing: Her criminal investigation into Donald Trump's efforts to overturn the 2020 election results in Georgia.
More locally, she's also known for something else: Her love of RICO.
In her time in the district attorney's office, Willis has aggressively used Georgia's Racketeer Influenced and Corrupt Organization statute.
She's used it to indict 35 Atlanta public school teachers accused of falsifying standardized test results, as well as against a number of local gangs. One sprawling 56-count RICO case, against the rapper Young Thug's alleged gang, is in its second month of jury selection ahead of what's expected to be a nine-month trial.
RICO laws, in essence, give prosecutors more leeway to go after organized crime. Most states passed them so that law enforcement could more easily go after mafia groups. The way Willis has used Georgia's version of the law has raised eyebrows in Atlanta, according to Ronald L. Carlson, a professor at the University of Georgia School of Law.
"The public had to kind of be educated at that time, because the thinking was, 'RICO? That's for Tony Soprano and his buddies, not for school teachers,'" Carlson told Insider. "So she obviously can see the dimensions of using RICO in other than mob settings."
In more recent years, prosecutors everywhere have interpreted RICO laws with more flexibility. Federal prosecutors in Brooklyn, for example, brought a RICO case against R. Kelly, who was sentenced to 30 years in prison for masterminding a scheme where he trafficked teenagers for sex and raped them. Despite calling Kelly's operation an "enterprise," he was the sole defendant in the case. Prosecutors never brought charges against anyone else they described as Kelly's enablers.
That kind of versatility has endeared RICO laws for many prosecutors. Trump has denied wrongdoing and derided Willis's investigation as illegitimate. But if she were to bring a case, experts believe RICO charges are likely.
RICO fits the bill for Trump, experts say
Willis's investigation has two prongs: Trump's efforts to overturn his 2020 election loss in Georgia by asking authorities to "find" votes that would reverse his loss to now-President Joe Biden, and efforts by his allies to send fake electors to Congress on January 6, 2021, and try to install him as president even though he lost.
A special grand jury in Atlanta spent months hearing from witnesses brought by Willis's office and finalized a report, which remains secret, in January. Willis must now decide whether to refer the report's findings to an ordinary grand jury, which has the power to bring criminal indictments. Emily Kohrs, the special grand jury's foreperson, said in media interviews that the tally of people recommended for indictments was "not a short list."
In 2021, Willis hired John E. Floyd, the author of a widely used RICO legal textbook, for her office, increasing the speculation that she considered using Georgia's RICO statute in the Trump investigation.
According to a Brookings Institution analysis, Willis has the opportunity to bring charges against Trump for election fraud, forgery, influencing witnesses, and other potential crimes. RICO fits the bill as well, according to the Brookings report.
"Georgia's RICO statute fits those facts like a glove," Norm Eisen, a co-author of the Brookings report and legal ethics expert, told Insider. "That's because the attempted coup DA Willis is investigating was a comprehensive assault on our democracy, and doing a larger case under RICO would better get at that and would achieve broad accountability against those responsible, above all Donald Trump."
Georgia even has precedent for bringing RICO cases against public officials. In the 1980s, Georgia labor department head Sam Caldwell was tried and convicted under the state RICO statue over an insurance fraud scheme. According to the Brookings report, prosecutors must show "an interrelated pattern of activity by and through the [public] office" to win a conviction against a public official — and can do so with Trump.
"Prosecution based on predicate acts like 'false statements' and 'false swearing' by a public official seeking reelection — similar to crimes that Trump could well have engaged in or solicited — validly formed the basis of a RICO prosecution," the Brookings report says.
Trump's call to Georgia Secretary of State Brad Raffensperger telling him to "find 11,780 votes," along with evidence dug up by the House January 6 Committee about Trump's involvement in the fake elector scheme, are all evidence that could point to RICO charges, according to Eisen.
"We already know a great deal about this case, and those facts do lend themselves to bringing charges under Georgia's RICO statute, which is quite broad," Eisen said. "I've seldom seen a case with as much public evidence as we have here."
Georgia's RICO statute is also helpful for prosecutors, according to Carlson, because it allows them to threaten defendants with more potential jail time.
"Criminal solicitation to commit election fraud, false statements to state and local government officials — these are the most serious charges under Georgia law in the potential list of charges," Carlson told Insider, adding: "On the potential list of charges is RICO, the one that carries up to 20 years. So it's a heavy-duty charge."
Willis can use the threat of RICO charges to turn Trump allies into cooperating witnesses in the criminal investigation, according to Neama Rahmani, the president of West Coast Trial Lawyers and a former federal prosecutor.
"You can rope in a lot of defendants because they're all on the hook for the substantive conspiracy," Rahmani said. "It's a good way to flip lower-level people. Because all the co-conspirators — they're liable for the substantive crimes, right? So that's how you can potentially get Trump's inner circle to flip."
But it may be wiser not to bring a RICO charge
While the RICO statute may apply to Trump, it might not be the best way to bring the case, Eisen and Rahmani told Insider.
The Brookings report spends about nine pages describing how the actions of Trump and his allies may fit the facts for RICO. But it spends about 62 pages describing other crimes — soliciting election fraud, election interference, making false statements, forgery, computer trespassing, and more — that they may also be liable for.
The wide scope of Georgia's RICO law offers more opportunities for Trump to challenge an indictment against him, Eisen wrote in the New York Times — even if he would likely lose those challenges.
"I ultimately think bringing a narrower case under typical white-collar criminal statutes is the better choice," Eisen told Insider.
Rahmani cautioned that a RICO case may make Willis look too aggressive. In a politically sensitive case, he said, it's better to stick to specific facts instead of bringing a more narrative-based prosecution that RICO laws invite.
"It's already such a difficult and politically charged prosecution," Rahmani said. "If people think that you're overcharging the case, then that's going to make it even more challenging."