Mother of Mercy, Is This the End of Trump?
By using Georgia's RICO statute to prosecute an election interference case, prosecutor Fani Willis could potentially end our long, national nightmare
We were supposed to have a podcast today, but events require a pivot. Do you know someone who needs to read this? Then, by all means,
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A small, badly-groomed gangster, swaddled in shadows, hunches against a telephone in the hall of a flophouse. “Think I can’t take it no more,” he mutters angrily to no one in particular. “I’ll tell that guy—hello?”
Mustering a remnant of his old authority to control events, he insists on speaking to the man on his trail, detective sergeant Flaherty. “This is Rico speaking,” he snarls. “Rico. R-I-C-O. Little Caesar, that’s who! You’re a big guy now. You can shoot your mouth off in the papers…you think that I can’t take it no more. Well listen, you crummy flat-footed copper, I’ll show you whether I lost my nerve or not.”
As the police trace the call, Flaherty taunts Rico to keep him on the line. “Ya ain’t got much longer to laugh,” Rico sneers in response, even though he is alone and on the run. “I’m comin’ after ya, see, and I’m gonna put one in your dirty hide for every lyin’ crack you made about me in the papers, see? I’ll show ya who’s goin’ to finish up in the gutter. I’ll show ya!”
Fast forward: it ain’t Flaherty, but Rico, who gets plugged as he crouches behind a billboard. As Rico lies in the street, bleeding out, he looks into the camera and asks, unbelieving, as his eyes roll up into his head: “Mother of mercy, is this the end of Rico?”
Cue credits.
Directed by Mervyn LeRoy, Little Caesar, starring Edward G. Robinson, was released in 1931, launching the gangster movie as a film genre. Robinson’s haunting final line—"Is this the end of Rico?”—sent movie audiences into the streets with an important question: could stopping one criminal, or even one gang, halt the rot of criminal corruption that had exploded in teh United States during Prohibition?
The answer was no.
Late last night, as has been long anticipated, Fani (pronounced “FAH-nee”)Willis, the District Attorney of Fulton County, Georgia, completed a two-year investigation of Donald J. Trump’s attempt to overthrow the 2020 election results in that state. The result of her work is an indictment that targets 19 people, including Trump, former Congressman Mark Meadows and White House Chief of Staff Mark Meadows, and legal advisor (should I put that in quotes?) Rudy Giuliani. There are also numerous unindicted co-conspirators. Fulton County has issued nineteen arrest warrants: anyone who does not surrender by August 25, 2023, will be considered a fugitive.
Go here to read the full document.
But here’s the question: why is this Trump indictment unlike all other Trump indictments?
That difference is that each named defendant, from greatest to least, is charged under the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act. RICO laws were enacted by the federal government in 1970 and duplicated in 33 states after 1972. They were created to deal with the reality that modern criminal organizations closely resemble legitimate capitalist enterprises in structure and behavior. They hire accountants and lawyers, have office space, and buy ordinary businesses (grocery stores, construction businesses, and trucking firms) to launder criminal profits. As importantly, criminal organizations spread this blend of legal and illegal activities across multiple entities and persons that could plausibly deny involvement with crimes committed by other persons or entities.
Sound familiar? RICO prosecutions take two or more indictable offenses that potentially use multiple financial resources, people, and organizations and argue that together they constitute a felonious conspiracy or “racket.” Think of a RICO charge as the judicial version of a mutual fund share: each share is the fruit of multiple investments pursued towards one goal: making the investor wealthy. Similarly, a RICO indictment results from numerous and smaller investigations into actions that may not even, standing alone, be criminal. Together, however, they become a nasty crime that has dire consequences if it is proven in court.
But the fact that a county-level prosecutor has brought a RICO case under state laws opens a whole different front for a former president who is beginning to look visibly depleted by the rigors of a campaign, running a global business, and preparing criminal defenses in four separate jurisdictions.
This is my theory of the case.
First, if you buy it that Trump still has a chance of being elected President in 2024 (which I do not, but others do), he could control his fate in relation to the two federal indictments in Washington, D.C., and Miami. He could plead out the New York case unless it triggers an FEC investigation (because the Stormy Daniels payoff could be understood as an unreported and illegal campaign contribution by the Trump corporation.)
Yet, should he return to the White House, Trump would have the authority to shut down all federal prosecutions, pardon his indicted associates, and possibly even pardon himself for any convictions achieved before his inauguration.
But the President—whether Trump or another Republican—has no power to stop or override with his pardon power a prosecution under state laws, and Fani Willis would continue her work.
Second, because state-level RICO laws are designed to reach beyond the jurisdiction of any single state as criminal organizations do, Willis has been able to make other state investigations of fake electors part of her case. Last week, Michigan arraigned 16 of these alleged conspiracists. As part of the evidence in that case, prosecutors have an audio recording of the Michigan GOP chair asserting that the Trump campaign directed this effort. Fake electors in Pennsylvania insulated themselves legally, but they could be subpoenaed. A civil case against fake electors in Wisconsin is moving forward, and a third slate of fake electors in Arizona may also be prosecuted. Any evidence collected in these cases and any convictions strengthens a racketeering case in Georgia against Trump and his associates.
Third, there are very few offramps for the defense. Although the other cases could be settled with fines and probation, a successful RICO prosecution, always and without exception, carries jail time. Under Georgia law, this increases the possibility that the eighteen will begin to separate from Trump, potentially increasing his legal exposure as they start to cooperate.
Finally, and most importantly, RICO laws generally allow federal and state authorities to freeze or seize assets, and Georgia’s laws are no exception. Why should prosecutors be able to do this? Because the logic goes, profits from an illegal enterprise should not be used in a criminal defense (note: this may be one reason why most financial crimes settle rather than go to trial.)
This is where things get ugly for Donald Trump: Fani Willis can go after his assets anywhere they are being held, they can be seized or frozen before any guilt is established, and any other party who is a part owner of those assets—in other words, every member of Trump’s family and any investors—have to come forward and show their innocence of criminal activity to retain their share.
This would open the Trump Corporation and the Trump family to scrutiny that I am guessing they cannot easily sustain. More immediately, the threat of seizure and forfeiture could financially cripple the Trump presidential campaign. We now know that its principal vehicle, Save America PAC, may also be engaged in fraud since it has been collecting money as a leadership PAC but spending it on Trump’s criminal defense.
Theoretically, any other PAC associated with Trump could also come under scrutiny in a RICO proceeding. True, PACs aren’t transparent but they can’t be used to shield criminal profits or support criminal enterprises. So could the Republican National Committee, for that matter. And any big donor who would typically contribute to these PACs might either see that money swirling the drain or—an admittedly remote possibility—get sucked into the legal whirlpool of Donald Trump’s problems themselves.
What else does this mean besides that Trump does not have the funding he needs to run for President? It means that his principal use to other Republican politicians—that he has been a fund-raising juggernaut and brings donors and voters to their campaigns—and to the party itself is dramatically diminished. You better believe chairperson Ronna McDaniel is fighting an Excedrin headache this morning.
Is this the end of Rico? We can’t know yet. But RICO may prove to be the end of Trump.
Short takes:
Is the actual work of government sexy enough to impress voters in a political environment that serves up constant scandal, conspiracy theories, and hyped-up, fact-free opinion journalism? As Kate Aronoff points out in The New Republic, Joe Biden’s infrastructure bill, the “first-ever large-scale green spending bill,” has been a crashing success. Furthermore, look around your community: you are driving over new roads, getting clean water, and seeing bridges rebuilt. And the economy didn’t collapse—it’s healthier than ever. “Look at just about any macroeconomic indicator, and you’ll find a success story,” Aronoff writes: “GDP growth in the second quarter of this year exceeded expectations, inflation has dropped for the last 11 months, unemployment is at 50-year lows. Since the end of 2021 and the passage of Biden’s trademark legislative achievements, manufacturing construction spending has doubled." (August 15, 2023)
Former New Jersey Governor Chris Christie predicts that Trump will sign the pledge to support the eventual GOP nominee because, in the end, he won’t be able to resist being on that stage. “On Sunday, Christie argued that Trump’s primary motivation in dangling his participation over the debate is to keep attention laser-focused on him and his campaign,” writes Vanity Fair political reporter Jack McCordick. “`This is about Donald Trump keeping the attention on Donald Trump, and he’s doing pretty well,’ Christie said, adding that Trump’s comments about the debate amount to `nonsensical theater.’“ “Of course, experience tells us that even if he did sign it, Trump would do whatever he could to destroy the GOP nominee if it was not him. (August 13, 2023)
At The Nation, Joan Walsh looks to the “long history of mainstream media outlets and even liberal pundits blaming liberals for Trump’s electoral success and fascist excess.” Journalism intelligentsia who still believe the old saw that sticks and stones will break our bones but words will never hurt us should contemplate that Trump’s words and his enablers' actions resulted in many broken bones on January 6, 2021. It also ignores the fact that playing by the rules while Trump breaks every rule he can get his mitts on is what has put us in this position in the first place. “Under Trump, the rule of law took a thorough beating, and democratic norms were roundly trounced,” Walsh reminds us. “It’s easy to want to cheer for the “good guys” after the bad guys have done so much damage. And it’s not going to affect the bad guys’ behavior anyway.” (August 11, 2023)
So glad you liked it!
One of the African American indictees is from Blacks for Trump, a grifter organization put together by Roger Stone. I've actually met their leader.