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On Monday night, Donald Trump and eighteen other people were indicted on forty-one felony counts by a grand jury in Atlanta. The case stemmed from Trump’s attempts to overturn the 2020 Presidential-election results in Georgia, where he was narrowly defeated by Joe Biden. Earlier this month, Jack Smith, a special counsel for the Department of Justice, filed a federal indictment related to Trump’s conduct in the aftermath of his election loss. A notable distinction between the two cases is that Fani Willis, the district attorney in Fulton County, Georgia, decided to charge Trump and his associates under the state’s RICO Act, a racketeering statute that traditionally has been used to pursue organized crime. (She also charged Trump with thirteen felony counts, whereas Smith charged the former President with four.)
To talk about the sprawling indictment, I recently spoke by phone with Caren Myers Morrison, a former Assistant U.S. Attorney in the Eastern District of New York who is currently an associate professor of law at Georgia State University. During our conversation, which has been edited for length and clarity, we discussed the advantages and disadvantages of bringing RICO charges, whether Trump is likely to succeed if he tries to move the case to federal court, and why the sheer scope of this latest indictment may present a challenge to prosecutors.
What do you understand to be the reason that this indictment is so much broader than the federal indictment, which covers some of the same behavior by the former President?
I think part of it comes down to a prosecutorial strategic decision that Jack Smith made to keep his indictment extremely targeted and fairly simple, as far as these things go. Four felony counts, one defendant: Donald Trump. The simpler your case is, with fewer charges and fewer defendants, the faster it can move. The federal prosecution looks like it’s an attempt to do the sprint. As for this case, it is hokey to say it’s a marathon, but basically it’s more like an epic with a giant cast of characters. The other one’s Raymond Carver, and this is Dickens.
How do you understand Willis’s decision to charge this under RICO statutes?
A RICO charge is the kind of charge you bring when you have a lot of different people connected in different ways, but who form a loose organization, or sometimes a very tight hierarchical one—say, a Mob family—who are all working toward a common goal. But that common goal has been achieved during a long period of time and in potentially all sorts of different places. So, it’s the perfect charge for something where there are a lot of moving parts. It’s the most narrative-driven of the types of cases you can bring, to some extent, because some part of the trial has to be spent establishing the fact that there was an enterprise. The enterprise doesn’t have to be formal, but prosecutors have to prove that there was an association or an agreement between a number of people.
In this case, the allegation is that they were attempting to overturn the results in Georgia to keep Donald Trump in office. This has to be brought about through a pattern of racketeering activity. And racketeering activity refers to a number of specified felonies that are detailed in the RICO statute. It also enables you to go back beyond statutes of limitation. Typically, crimes have five-year statutes of limitation, but if you’re dealing with, let’s say, Mafia cases, where you would sometimes have threats or extortion or aggravated assaults that were many years old, you can fold that in with a RICO indictment into the pattern of racketeering activity, which typically takes place over a fairly long period of time.
You said it would have to be a pattern. This obviously was not a pattern. This was the first election that Donald Trump and his associates—
That is not what I mean by pattern. Pattern just basically means a series of acts. It is not the idea of a pattern as something regular, like a design that recurs. That’s not what it means. All it means is that there’s a number of different actions that are all in some way trying to achieve the same goal. For example, getting into the voting machines in Coffee County, or trying to put pressure on the election worker Ruby Freeman, or calling Brad Raffensperger. That could be a pattern of racketeering activity. It might be three separate crimes, but they’re all attempting to achieve the goal of the enterprise, which is to keep Donald Trump in power.
There’s been some discussion around the idea that Georgia’s RICO statutes are used too broadly. Do you have concerns about that?
Prosecutors love RICO statutes because, like I say, they allow you to go back in time, and fold a whole bunch of people into it. It’s a very powerful tool. Obviously, whenever prosecutors have a very powerful tool, they like to use it. And then that raises issues on the defense side and sometimes on the public side that the prosecutors are overreaching or going too far.
Remember, RICO starts specifically to deal with the Mob. It’s part of the Organized Crime Control Act of 1970. The reason it comes into being is so that they can prosecute the Mafia. And then, over time, it’s been extended to drug organizations or human-trafficking organizations or corporations. And even in Fulton County a couple of years ago, Fani Willis indicted a RICO case against these teachers who were involved in this school-cheating scandal in Atlanta public schools. We’re a long way, at that point, from Joe Bonanno.
One of the concerns about this indictment is that it includes very basic actions that are not crimes on their own. If you go to the hardware store and buy tape, that is not a crime. If you tie someone up against their will, that is a crime, and you could see why buying tape would be mentioned in the indictment of someone who’s charged with kidnapping. But there has been some concern that this is an incredibly broad indictment, especially because it includes things like the President’s tweets, which might be seen as protected political speech. What do you make of the indictment on that score?
It’s hard for me to take my prosecutorial hat off for this, but, for example, the teacher case makes me say, “Huh, that seems too far.” This seems more like the right charge for something this wide-ranging. And what it enables the prosecutor to do is to capture all the intricacies, all the phone calls back and forth, all the activities. There’s really a flurry of activity around trying to keep Donald Trump in power, or trying to overturn the results in Georgia.
So each act mentioned isn’t necessarily a predicate crime, but it is part of the over-all set of actions that the defendants were taking. And when you do that, not everything has to be illegal. It’s not illegal to send a tweet. Just like you say, it’s not illegal to buy some tape. But if it’s all in furtherance of the scheme—which can include trying to keep morale up in the organization and the enterprise, or trying to keeping people in a conspiracy informed of what the other members of the conspiracy are doing, or trying to encourage people to keep working toward the goal—that’s all part of it. So, yes, there’s a First Amendment argument that can be made, and I hate to sound like Attila the Hun, but I don’t think this is an overreach.
Can you talk about what an overt act is and how that comes into play here?
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