Former President Trump filed a civil RICO case against many of his political opponents including Hillary Clinton on the theory that they conspired to “weave a false narrative” that he was “colluding with a hostile foreign sovereignty” (Russia).  The Complaint lays out in great detail many of the actions FBI officials took, with the support of Clinton, to amass the Steele dossier and use it to obtain search warrants on Trump campaign figures in 2016 in order to obtain evidence that Trump was colluding with Russia.  The RICO violations are atypical: theft of trade secrets and obstruction of justice.  (The obstruction of justice violations are the making of false statements to the FBI in order to get the Bureau to obtain the search warrants which led to the theft of trade secrets from the campaign.)  Absent from the Complaint are the typical mail and wire fraud allegations which are widely used in civil RICO.  Another oddity is the damages Trump is seeking, $24 million in attorney’s fees he alleges he spent to fight the concerted effort to damage his campaign. 

Hillary Clinton has filed a motion to dismiss the case making various legal arguments, the most significant of which is that the case is brought beyond RICO’s four year statute of limitations.  It is true that the violations seem to have occurred in 2016 and 2017, more than four years from when the case was filed.  But the statute of limitations does not accrue (start running) until the plaintiff has been injured by a predicate act.  When was Trump injured by the 2016-2017 acts?  His theory is that he was not injured until he began to spend money on attorney’s fees, which occurred at some point after the acts occurred, presumably when Trump learned what was going on, hired lawyers to represent him (though what those lawyers did is unclear), and began to pay their bills.  Ordinarily the statute of limitations is an affirmative defense which must be proven by the defendant, and doubts cannot be resolved on a motion to dismiss.  But the Complaint does not make it clear when Trump was damaged, which it is supposed to do.  So the court would probably be able to dismiss the Complaint for failing to show that the case was filed on time.    

Another problem highlighted by Clinton’s motion is that there is no pattern of racketeering activity.  The Supreme Court has required RICO plaintiffs to plead that the racketeering was either long term (typically at least two years) or is ongoing with the threat of repetition.  The time period involved here seems to be less than two years in 2016-2017, and it is not continuing.  Rather, the plot has been uncovered and has reached an endpoint.  So Clinton seems to have the better of this argument.

The motion also contends Clinton did not personally commit the predicate acts, her co-conspirators did.  If a RICO conspiracy is properly pled, and this one seems to be, then each member of the conspiracy is liable for the acts of their co-conspirators.  So Clinton did not need to personally commit the predicate acts, and she does not make persuasive argument on this point.

The final significant argument for dismissal is that the predicate acts did not cause the damage to Trump.  That is to say, how did the commission of the theft of trade secrets and obstruction of justice lead to his spending $24 million in attorney’s fees?  It would seem he lawyered up once he knew the FBI was investigating his campaign, whether or not the actual RICO violations occurred.  RICO requires “proximate causation,” more than “but for” causation.  The plaintiff must be directly injured by at least one RICO “predicate act,” and here it is not clear that degree of causation exists. 

All in all, the Trump RICO case has some serious problems and is likely to be dismissed.  It is possible the court will allow him to amend to try to fix the problems. 

RICO is a very complex statute.  There are many pitfalls a plaintiff’s lawyer can fall into.  If you are not a seasoned RICO lawyer and want to bring a RICO claim call us and we can help evaluate your case before you get in trouble.