Many RICO defendants in civil cases argue that the law is being abused. They point out that RICO was intended to apply to “organized crime” not to legitimate businesses. The Supreme Court has rejected this argument and it is rarely successful. The same argument can and will be asserted by Donald Trump and his co-defendants about the indictment by the Fulton County, Georgia prosecutor, State of Georgia v. Trump. The indictment reads like the January 6th indictment brought two weeks ago by federal prosecutor Jack Smith. By that I mean the government is seeking to prosecute Trump for the political activities he undertook between election day 2020 and mid 2022 to remain in office. The actual crimes are a backdrop to the overall endeavor to stage a coup.

The federal RICO statute was created with three main goals in mind: to combat the infiltration of enterprises used to conceal crime, to enable prosecutors to indict groups of defendants for multiple crimes committed in one overall case and to allow private parties to use the law to supplement the government’s efforts to combat these crimes by offering money damages. It was not intended to apply to this type of case, in which a president and his advisers are scheming to overturn the results of an election. But as I have stated, the Supreme Court has allowed RICO to be applied where there is no economic motive for the crimes, allowing it to be used against anti-abortion protesters and against respectable corporations for violations of the mail fraud statute. And the Georgia RICO law, under which this indictment was issued, was enacted in 1980 with a similar legislative history and was expressly modeled after the federal statute.

With that background, the Georgia indictment will very likely survive pretrial motions to dismiss it as violative of the First Amendment or some other arguments that the case does not fit the RICO paradigm. And juries tend to convict RICO defendants. On the other hand, this case has 19 defendants, and jurors may not want to convict all of them on all of the counts. A juror who wants to convict some defendants on the RICO counts, some on the non-RICO counts and some on both can do so.

As to the details, the RICO enterprise is alleged to be a loose association of defendants and unnamed others. The actual RICO “predicate acts” are making false statements to state officials about the election results (that felons, minors and dead people voted illegally), that election counting shenanigans were occurring at the State Farm Arena in Atlanta, in lining up a slate of would-be Trump electors to replace the duly elected Biden electors and in delivering a document to the Archivist of the United States in order to carry out the false elector scheme.

These predicate acts, taken together, clearly constitute a “pattern,” even though that is not necessarily required under the Georgia RICO law, unlike the federal law. Moreover, after reading the indictment, one clearly comes away with the impression that Trump and his associates conspired to commit a series of state crimes in order to steal the presidential election.

The weaknesses of the indictment are the large number of defendants. It is far from clear that they all committed, even agreed to commit, all of the predicate acts of which they are accused. And there is no indication such a conspiracy was formed. In civil cases far more details of a conspiracy would be required to state a claim. But this case is in Georgia state court, and the district attorney presumably knows how to plead a criminal conspiracy that will pass muster with a judge. There is also the problem of the lack of distinctness between the defendats and the vaugely defined enterprise. Federal RICO case law requires they be different. And Georgia RICO law is typically interpreted in tandem with the federal decisions.

It will be interesting see if each defendant hires his or her own lawyer, or do they share lawyers. The motions to dismiss the indictment will also make First Amendment arguments that have not been made in Georgia before. I expect them to fail. One hopes the trial will occur before the election and be televised, as is being speculated. It will be fascinating.