“Very serious crime”: Expert says allies in RICO case would have “huge incentives” to flip on Trump

Fulton County District Attorney Fani Willis is expected to bring charges related to former President Donald Trump's efforts to overturn the 2020 election results in Georgia as early as Tuesday.

Willis and her team are presenting their case from their two-and-a-half-year investigation into Trump and his allies' efforts to reverse Joe Biden's victory in the state. While Trump has already been indicted in three separate cases this year, the Georgia indictment could look much different. Clark Cunningham, a professor of law at Georgia State University, drew comparisons between the potential indictment and special counsel Jack Smith's charges against the former president over his efforts to overturn the 2020 election.

"Smith is going for the quick score and District Attorney Willis is playing the long game," Cunningham told Salon. "We don't know if it's going to be one indictment with multiple defendants or if it's going to be separate indictments."

While Smith's indictment of Trump was simple and straightforward, Willis is "filing a much more complicated case," he added.

At least two witnesses have received notifications requiring them to appear before a grand jury in Fulton County on Tuesday. Grand jurors will hear from former Lt. Gov. Geoff Duncan and independent Atlanta journalist George Chidi Tuesday. 

Former Georgia state senator Jen Jordan and former state lawmaker Bee Nguyen have also received subpoenas in the case. 

Willis is expected to pursue charges against more than twelve individuals in connection to the alleged efforts to overturn the outcomes of the 2020 election. 

"Prosecutors will be looking at this with the mindset of convincing a jury," said Joshua Ritter, a former Los Angeles County prosecutor and a partner at the firm El Dabe Ritter. "They are probably going to focus on people who played a direct role rather than people whose roles were more ancillary.  If prosecutors throw too many ancillary people into the mix, a jury could get the impression that some defendants are being railroaded. That would tear away at the credibility of the overall case."

The district attorney has described her probe in court filings as an investigation of "multistate, coordinated efforts to influence the results of the November 2020 elections in Georgia and elsewhere."

CNN reported over the weekend that prosecutors obtained text messages and emails linking Trump's legal team to a voting system breach in Coffee County in January 2021 as part of a Trump-led effort to undermine Georgia's vote. Some of those potentially facing charges are connected to the breach within the larger criminal investigation.

Willis could pursue Trump under the state's Racketeer Influenced and Corrupt Organizations Act (RICO) – a law often associated with addressing organized crime but with wider potential applications to pursue Trump in this case.

"The district attorney has signaled an interest in using that from the beginning," Cunningham said.

She has a "track record" of using the RICO statute when she was the "star trial attorney" and an assistant district attorney in Fulton County, he added, pointing to Willis using the RICO Act against Atlanta public school educators in a cheating scandal.

"She successfully prosecuted the Atlanta school board cheating case and got convictions," Cunningham said. 

Willis is using the RICO Act right now in a "very creative way," going after the rapper Young Thug, who is facing gang-related charges stemming from the RICO indictment in Fulton County, Georgia. Several people have been indicted under RICO and are cooperating.

The RICO Act was passed by the federal government in 1970 "pretty clearly aimed at organized crime," Cunningham said. It came with the understanding that if people work together in a criminal enterprise, that's more dangerous than people working alone. Georgia passed its own version in 1980.

"When you have a criminal organization, [or] organized crime, you really need strong investigative and prosecutorial tools," Cunningham said. "So it's tough to reach the godfather. The godfather tries to keep his hands clean."

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In this case, Trump's alleged conspiracy to undermine democracy and keep himself in power by any means makes him the mastermind behind the effort to overturn election results in Georgia, he continued.

The DA could identify the Stop the Steal campaign or the unindicted co-conspirators as part of the RICO organization, Cunningham said. Arguably, the office of the presidency, after the election, was a RICO organization – an organization that was corrupted, he added.

"In putting together a racketeering case, it's all about establishing a latticework of connections between different parties," Ritter said. "Even if all the connections do not lead directly to Donald Trump, if prosecutors can build this theory that a network and a criminal enterprise was at work on Trump's behalf, then they can point to certain actions that were clearly illegal and other actions that weren't strictly illegal but were undertaken in furtherance of an overall criminal scheme."

The RICO Act not only carries a prison sentence of 20 years but also includes a unique provision mandating a minimum of five years of imprisonment.

"So it's a very, very serious crime and one of the things that it does is if you indict a lot of people under the RICO Act, that creates a huge incentive for people who are kind of lower the food chain to cooperate to avoid spending at least five years in prison," Cunningham said.

A RICO indictment would bring all the important pieces of evidence together and make the case for how these different events all relate to each other. 

"That's what a RICO indictment does, is that you've got all these different pieces of evidence that by themselves may not even seem criminal, may not seem that significant, like the phone call to [Brad] Raffensperger or Mark Meadows showing up unannounced in Cobb County…" Cunningham said. "All of these things fit together into a plan, a plan that really had a tremendous number of people working on it and a plan that came very close to succeeding."