Some commentators are asking this question and lawyers in the Justice Department have certainly looked into the possibility of indicting the former president. (I use the word “sued” to generically mean indict or sue in a private civil case by a plaintiff claiming damages from acts Trump has committed.) But keep in mind It is not even clear the Justice Department will indict Trump for any crime, much less RICO which is only used against long-term organized crime figures and street gangs which sell illegal drugs. (Civil RICO is used much more widely, which I address below.) No matter what one thinks of Trump, he is not an organized crime figure. For that reason, a RICO indictment would probably not make it through DOJ’s internal procedures. And even if the Attorney General wanted to use RICO against Trump without the usual requirements being met, an indictment would require a long-term pattern of racketeering activity through an enterprise. Trump’s mishandling of classified documents is not a type of racketeering activity under the statute nor is it committed through an enterprise, at least one that is obvious such as a legal entity like the office of president. However, a creative prosecutor might be able to allege Trump acted through an association-in-fact enterprise of certain co-conspirators if they exist. But a RICO charge just from the mishandling of classified documents is a non- starter.
If one considers possible illegal acts Trump took as president, particularly the incitement to riot on January 6th, that also seems too far removed from RICO. Incitement is not a form of racketeering activity. Perhaps there is another crime involved in that day’s actions which is, but I have not seen it. On the other hand, acts he committed as president could be deemed to be acts through an enterprise if the office of president is an enterprise. Courts have held the office of governor and mayor are adequate RICO enterprises. That element of RICO would be met. But there also has to be a pattern of crimes, and actions occurring in a single day will not suffice.
It’s also clear that prosecutors in New York do not have sufficient evidence against the former president to bring a RICO charge. They have not indicted Trump at all but have so far only indicted an officer in the Trump organization for fairly vanilla financial crimes, nothing approaching a pattern of racketeering activity.
So right now, there seems to be no chance of a federal indictment of Trump for RICO violations. But that does not mean private parties could not bring a civil RICO case against him. Yet except for a defamation suit there does not appear to be any pending civil action against Trump which could have allegations of the type necessary to support a RICO case. (Defamation is not a RICO violation.) This does not mean Trump has not violated any law or cannot be sued in some other civil action. It means RICO is a very specific law that only applies to specified long-term criminal conduct committed through an enterprise. One should be precise when it comes to RICO allegations because good RICO cases are rare and the Department of Justice and federal judges are cautious before allowing them to proceed. If you think you have a good RICO case, contact us. Let us analyze it and possibly help.