Criminal law

Opinion: Trump’s Georgia indictment on RICO charges sets a dangerous precedent

Editor’s note: David Orentlicher is the Judge Jack and Lulu Lyman Professor at the William S. Boyd Law School at the University of Nevada, Las Vegas, where he majors in constitutional law and health law. He also serves as a Democrat in the Nevada Assembly. Eve Hanan is Associate Dean for Faculty Development and Research and Professor of Law at the William S. Boyd Law School at the University of Nevada, Las Vegas, where she majors in criminal law and criminal procedure. The opinions expressed in this comment are those of the authors. Show more opinion In CNN.


Former President Donald Trump turned himself in to authorities in Georgia Thursday fees His racketeering, forgery, false statements, and other offenses, as well as his three previous charges in separate criminal investigations, reflect an important truth: Trump has allegedly broken the law on numerous occasions, and must be held accountable through criminal prosecutions. Indeed, it is imperative that Trump be brought to justice Attacks on the electoral process.

David Orentlicher

But prosecutors should not expand criminal laws in ways that would be unfair to Trump and would open the door to unwarranted prosecutions for others. But that’s what the Fulton County District Attorney said Fanny Willis He does in Georgia, especially with Her indictment of the former president under the Influenced and Corrupt Organizations Act (RICO).

Eve Hanan

Not surprisingly, there are other clear and appropriate criminal laws to invoke against Trump. (He has denied any wrongdoing in all of the cases against him.) For example, Special Counsel Jack Smith was on solid ground when Accused Trump appeared in federal court in June on charges of mishandling classified documents after Trump allegedly took documents containing sensitive national security information when he left the White House, stored them in unauthorized locations and showed some to people without security clearances. He pleaded not guilty He cited a range of legal arguments.

Likewise, if the allegations behind the election related charges of Smith And Willis It is true that it is appropriate and necessary for Trump to face accusations of trying to prevent people’s votes from being counted, and to influence the elections. Witness testimonyPresent Fraudulent voter lists in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin, and engaging in other acts of misconduct.

But Willis doesn’t stop there, she calls it quits Ricoh fee In particular it raises concerns. Legislatures have enacted federal and state racketeering laws to ensure that prosecutors can do so effectively Dismantle organized crime groupsMost notably the mafia, by criminalizing participation in an “institution” with criminal goals.

Since participation in the project is the crux of the crime, the RICO defendant’s conviction hinges only on proving that the person took some action towards The purpose of the enterprise. Relying on belonging to a target group makes it easier to prosecute individuals whose criminal acts might be seen as petty. To the extent that the participants They were accused of conspiratorsEveryone can be tried for the crimes of their co-conspirators. This makes it easier for prosecutors to prosecute mob bosses who depend on their subordinates to commit their crimes, but it also makes it easier to prosecute junior participants for the crimes of others.

But RICO’s laws don’t limit their definition of “enterprise” to mafia-like organized crime groups, which unfortunately paved the way for Willis and other prosecutors to indict RICO for all sorts of alleged conspiracies. Any group of people, no matter how small, can constitute a RICO criminal enterprise if they conspire together to commit one of several crimes defined in the RICO law at both the state and federal levels.

And they don’t need to represent an existing group either. in Indictment 2001 In Miami, for example, federal prosecutors applied the RICO statute to two union officials who took union funds for personal use. in another controversial issueIn 2013, Willis accused more than 30 principals and teachers of cheating on state standardized tests.

Although facilitated by the legislative bodies and Courts approvedExpanding RICO laws violates a basic principle of justice: criminal laws must clearly tell people what they may and may not do. The law against organized crime does not explicitly address efforts to overturn elections. While Willis and other prosecutors have expanded RICO beyond its intended role before, this is the first time RICO charges have been brought against a former president, and its use here illustrates its seemingly limitless limits.

Moreover, when RICO comes into the picture, the allegation of a large-scale criminal enterprise can turn more people into potential defendants – even if they have done nothing wrong. It doesn’t have to be the suspect.member“From an alleged enterprise accused of participating in the conduct of its affairs. Some defendants may never have realized that they were involved in the project, or that the project existed.

In the 2016 New York case, Federal prosecutors are after a gang 120 suspects were arrested, almost all of them destitute, but almost half of them did not claim gang affiliation. In the end, only Of the 120 accused, 69 were convicted With RICO violations, for 35 of those convicted, the only predicate act of racketeering was the sale of marijuana. And this is not surprising: even among members of street gangs, estimates It indicates that only a small minority are involved in crime.

Casting a wide net can also raise serious First Amendment issues. To justify RICO’s accusations against Trump, Willis must point to this certain actions By the ex-president who pushed the alleged criminal enterprise. She should also do the same in the separate RICO case she filed against rapper Young Thug (Jeffery Lamar Williams) for allegedly founding and participating in it. Violent street gangThese are accusations that Williams denies.

Among the specific acts identified in the cases, Willis Quote Lyrics from Williams’ songs and the following tweet from Trump: “Georgia hearings now on @OANN. Amazing!” (OANN stands for One America News Network, a right-wing television network.) Song lyrics and promotional tweets are not criminal; in fact, they are typically considered constitutionally protected speech. If protected speech can be criminalized in a RICO trial, First Amendment freedoms will be eroded.

RICO can also turn minor crimes into serious crimes, as RICO laws often are lifting sanctions Criminal misconduct under the theory that coordinated criminal acts are worse than the same crimes committed by individuals. But criminal law is designed to punish individual, not collective, guilt. In Willis’ case, she brought multiple charges alleging false statements and writings. These charges usually carry a prison sentence one to five years Under Georgia law. Using RICO, Willis gave the defendants possible prison sentences From five to 20 years old.

It also means that the punishment may not fit the crime. Moreover, the possibility of an unjustifiably harsh sentence could drive innocent defendants to do so pleading guilty to a lesser sentence.

For Trump, the principle of accountability is crucial, but so is the principle of a fair justice system. Prosecutors can hold the former president liable for any serious misconduct without invoking RICO and compromising the principle of justice that protects us all. It is possible to use perfectly adequate laws against election fraud, obstruction of official process, subpoenaing, and other alleged wrongdoings on Trump’s part, without setting dangerous precedents or calling into question the fairness of this already politically divisive case.

Correction: A previous version of this article incorrectly reported the number of convictions in the 2016 New York case.

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