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Fulton County District Attorney Fani Willis could pursue charges using the state’s RICO law
The legal investigations against former President Donald Trump for his alleged attempt to interfere with the 2020 election results in Georgia are reportedly expanding to cover some actions in Washington, DC and other states under Georgia’s broad Racketeer Influenced and Corrupt Organizations (RICO) statute.
The Georgia investigation is just one of three ongoing probes into Trump’s potentially criminal activities during his presidency. It focuses on the former president’s efforts to have Georgia officials dispute or alter the results of the state’s 2020 presidential vote, which narrowly favored President Joe Biden. The two other investigations, both overseen by federal special counsel Jack Smith, concern alleged mishandling of classified documents at the end of Trump’s presidency and efforts in other states to falsely certify the 2020 election results in his favor.
The Georgia investigation is lead by Fulton County prosecutor Fani Willis, a Democrat. Her office has been investigating allegations that Trump tried to convince Georgia Secretary of State Brad Raffensperger and Gov. Brian Kemp, both Republicans, to deny that Biden won their state. In a 2021 phone call with Raffensperger, Trump urged him to “find” the campaign 11,780 more votes — one more vote than the 11,779 by which Biden won Georgia — “because we won the state.” Trump also told Raffensperger that he was taking “a big risk” if he did not overturn the state’s election results, and that Raffensperger and Ryan Germany, the former general counsel for the secretary of state, could face unspecified criminal charges if they did not comply with Trump’s demands that they substantiate false claims of thousands of ballots being destroyed in Fulton County.
According to reporting from the Washington Post, Willis has been seeking information from two businesses, Simpatico Software Systems and Berkeley Research Group, which Trump hired to investigate claims of voter fraud in other states. Trump’s campaign spent more than $1 million to hire the firms in late 2020 to investigate claims of voter fraud in Georgia, Nevada, Arizona, Michigan, Wisconsin, and Pennsylvania. The companies found no evidence of voter fraud and have reportedly cooperated with Smith’s investigation.
Willis’ requests for information from both companies indicate that her nearly three-year-long investigation will likely pull in evidence from other states and perhaps utilize the federal RICO statute to prosecute the Trump campaign.
The broadening effort to hold Trump accountable for election interference
In Georgia, Willis’ case is built around the Trump teams efforts to reverse the 2020 elections in a few different ways: Trump’s call to Raffensperger telling him to find the 11,780 votes; Trump and former Justice Department official Jeffrey Clark’s call for a special session of the General Assembly to choose a slate of Trump-supporting electoral college electors to cast their votes for the president and a December 2020 meeting of alternate electors in which they cast their votes for Trump; and the Trump team’s possible involvement in a plan to access voting equipment without authorization in Georgia’s Coffee County.
Georgia’s RICO law has a broad definition of what constitutes racketeering behavior: “knowingly and willfully making a false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of any department or agency of state government” to carry out a crime, as Clark Cunningham, a professor at Georgia State University’s College of Law told the Guardian in January. “If you do that, you’ve committed a racketeering activity. If you attempt to do that, if you solicit someone else to do it or you coerce someone else to do it — it’s all considered racketeering under Georgia law.”
Willis has utilized on the RICO statute in high-profile cases, including to go after rappers Gunna and Young Thug for allegedly helping found a violent street gang and to prosecute a cheating scandal in Atlanta public schools in 2015. Indications that Willis intends to use the RICO statute in the Trump investigation have repeatedly surfaced during the probe as well.
“The reason that I am a fan of RICO is I think jurors are very, very intelligent,” Willis said during a press conference last year regarding the Young Thug case. “They want to know what happened. They want to make an accurate decision about someone’s life. And so RICO is a tool that allows a prosecutor’s office and law enforcement to tell the whole story.”
Georgia’s RICO laws require only two incidents of racketeering behavior to justify an indictment and define a wide variety of activities, including illegally distilling liquor and prostitution as racketeering. In the Trump case, it’s likely that Trump’s and his campaign’s false statements to Georgia officials constitute racketeering activity to further the scheme of overturning the 2020 election results; information from other states can be used because the intended outcome of all the campaign’s efforts to overturn the election was to do so in other states and nationally, in addition to Georgia.
But just because Willis can point to behavior that breaks Georgia’s RICO statute in other places, she won’t necessarily file charges in those instances — she may merely use that evidence to build out her office’s case that the Trump campaign’s behavior amounts to a large-scale, illegal scheme.
Willis’ case will be challenging to prosecute; some of it depends on whether the people involved knew they were making false statements, or whether they actually believed the false claims they were repeating to state officials. Whether Trump and other campaign officials explicitly told people to break the law in order to overturn the election in Trump’s favor will also likely play a factor.
More is likely to become clear in the near future; Willis has indicated her office may bring charges as soon as August.
Georgia is just one of Trump’s problems
Trump’s legal troubles have come to define his third run for the presidency, but there’s no certainty about what they indicate for his future. They may end up playing into his narrative as a political martyr, persecuted by Democrats bent on keeping him out of office or actually result in accountability for his and his followers’ attempts to subvert democracy.
In addition to the Georgia probe, the two federal investigations continue. On Friday, CNN reported that federal prosecutors had a 2021 tape of Trump telling his aides and two people working on an autobiography of former Chief of Staff Mark Meadows that he had retained a classified Pentagon plan to attack Iran. On the recording, Trump indicates that he would like to share the contents of the document but has limited power to declassify documents after leaving the White House. That evidence potentially contradicts his claims that he declassified all of the documents removed from the White House during the wind-down of his presidency, as well as indicating that he may have broken the law by keeping documents pertinent to national security outside of a protected domain.
Smith, the special counsel, and federal prosecutors are also continuing to look into the Trump campaign’s false claims of election fraud — particularly whether they knew those claims were untrue but continued to make them in order to stay in power and profit financially.
Though the outcomes of those investigations are yet to be seen, recent cases against Trump have not gone in his favor.
In April, Trump was indicted in Manhattan district court on 34 counts of falsifying business records related to alleged hush money payments made to Stormy Daniels, a porn actress with whom Trump allegedly had an affair in 2006, during his 2016 campaign. Trump’s former attorney and fixer, Michael Cohen, already served time in federal prison for his part in the scheme to keep Daniels from speaking openly about the affair; the charges against Trump relate to the manner in which he reimbursed Cohen for the payments to Daniels, labeling them as legal expenses. Though Trump has been indicted, that case likely will not head to trial till 2024.
E. Jean Carroll, the former advice columnist for Elle, also won a victory against Trump last month, eliciting $5 million in damages in her civil suit against the former president. The jury in that case found Trump liable for sexual abuse and defamation regarding his attack on Carroll in a Bergdorf Goodman dressing room in the 1990s and the later maligning of her in the media after she made the allegations public in 2019. Carroll has sought additional damages against Trump for repeatedly denigrating her after the verdict.