Serious Trouble
Serious Trouble
Unfortunately, This Episode Is RICO

Unfortunately, This Episode Is RICO

Fani Willis's Trump indictment is legally aggressive and likely to take a long time to litigate; Georgia attorney Andrew Fleischman joins us to discuss overreaches and pitfalls.

Dear listeners,

Okay, now it’s RICO.

Donald Trump and 18 alleged co-conspirators have been indicted on 41 counts in Fulton County, Georgia. The headline count is RICO: District Attorney Fani Willis alleged this group constituted an enterprise trying to steal Georgia’s electoral votes (and those of other states) in violation of Georgia’s version the Racketeer Influenced and Corrupt Organizations Act.

This indictment is very complicated and we were pleased to bring on Andrew Fleischman, an Atlanta-based criminal defense lawyer focused on appellate practice, to help us understand the legal and prosecutorial situation with Georgia RICO.

Charging RICO here is not necessarily legal overreach. Unlike federal courts and federal RICO, Georgia’s courts have construed that state’s RICO to be very broad, applying to a wide variety of situations where multiple people get together to commit crimes. Still, charging a case as RICO makes trying it complicated, and many Georgia RICO prosecutions drag on for a very long time. You may have heard about a Georgia RICO case against rapper Young Thug and eight associates; in that case, jury selection has gone on for eight months and is still ongoing.

So, we’re skeptical of Willis’s plan to take this thing to trial within six months.

Some of the components of the RICO charge and associated charges are also problems: they invite efforts to remove the case to federal court, and constitutional challenges over what behavior is being criminalized. The issue is not that some of the overt acts described in the indictment as part of the RICO conspiracy are not themselves illegal — that is typical in any conspiracy case. It’s that some of the acts implicate core political or speech activity in a way that Jack Smith expressly sought to avoid in his own similar federal indictment.

Most remarkably, the indictments address not just efforts to get Georgia’s executive branch officials to use their offices illegally; they also address efforts to get Georgia’s legislature to meet and cast votes purporting to certify electors for Trump. Yes, such a legislative act very likely would have been rejected by state or federal courts as unconstitutional and/or against federal law. But that’s how we deal with unconstitutional state legislation: by having the courts throw it out, not by throwing in jail the people who lobbied for it, because petitioning the legislature to legislate is a core political right.

I don’t mean to suggest that Donald Trump and his associates did not violate Georgia law. I believe they did. Many counts in this indictment are not stretches and not overcomplicated.

But that’s what has us looking so askance at this incredibly sweeping indictment: it was possible to plead this case in a narrower and simpler way that would have been more robust to legal challenges while still encompassing the core of the illegal conspiracy to steal the election. Instead, we have a case that seems designed to produce a circus — 19 defendants, 1 RICO trial — likely to drag on for years while creating lots of opportunities for attack by the defense.

Anyway. Not great.

Still, we hope you enjoy the episode.

Free subscribers get a fairly brief episode covering the scope of the charges and the expansive nature of Georgia RICO. Paid subscribers get a much longer conversation with Kenny and Andy Raincloud also covering the likelihood of this case getting moved to federal court and the reasons to expect the case to go on for so long.

If you’re not a paying subscriber, why don’t you become one? Just smash the button below.

Thanks for listening,


This post is for paid subscribers

Serious Trouble
Serious Trouble
An irreverent podcast about the law from Josh Barro and Ken White.