RICO: What is Georgia’s MCOCA-like anti-mafia law under which Trump has been charged?

In its original scope and intent, RICO has similarities with the Maharashtra Control of Organised Crime Act (MCOCA), 1999, which is now used in many parts of the country to charge accused in a range of offences.

Why has Trump been charged under RICO?

Trump has been charged for 40 other crimes, which mainly include forgery, making false statements, impersonating a public officer, influencing witnesses, and conspiracy, but the accusations under RICO lie at the heart of the indictment. It says that Trump and 18 other individuals “constituted a criminal organisation whose members and associates engaged in various…criminal activities”.

This criminal organisation, according to the indictment, constituted an “enterprise [that] committed overt acts to affect [their criminal] objectives”. The indictment lists details of as many as 161 separate criminal “acts” that it alleges were “committed in furtherance of the conspiracy…and had the same and similar intents, results, accomplices, victims, and methods of commission and otherwise were interrelated by distinguishing characteristics and were not isolated acts”.

Why is the indictment of Trump under RICO significant?

An early analysis by The New York Times has mentioned the ability of prosecutors under the Georgia RICO to “bundle together what may seem to be unrelated crimes committed by a host of different people if those crimes are perceived to be in support of a common objective”.

The report in The NYT quoted Michael Mears, a law professor at John Marshall Law School in Atlanta, as saying the statute “allows a prosecutor to go after the head of an organisation, loosely defined, without having to prove that that head directly engaged in a conspiracy or any acts that violated state law”. This means, Mears told The NYT, that “If you are a prosecutor, it’s a gold mine. If you are a defence attorney, it’s a nightmare.”

Under the Georgia RICO statute, prosecutors must essentially demonstrate the existence of an “enterprise” and a “pattern of racketeering activity”. The “bar” for this pattern, according to The NYT, “is fairly low”. The report said that courts in Georgia have ruled that even two acts of racketeering activity within a period of four years qualify as a “pattern”. The 161 acts listed in the indictment were committed in a 22-month window from November 4, 2020 to September 15, 2022.

What were some of these “overt acts” committed by the alleged organised crime enterprise?

In an annotated commentary on the indictment, The NYT flagged several, including the following:

* According to the indictment, on November 19, 2020, Trump’s lawyer Rudy Giuliani, who is one of the 19 indicted individuals, “appeared at a press conference…and made false statements concerning fraud in the November 3, 2020, presidential election in Georgia and elsewhere. These were overt acts in furtherance of the conspiracy.”

The NYT commentary added: “This was the infamous event at which Giuliani’s hair dye ran down his face and where he and [another Trump lawyer] Sidney Powell promoted the conspiracy theory that Dominion voting machines had been hacked”.

* According to the indictment, on November 21, 2020, former White House chief of staff Mark Meadows “sent a text message to United States Representative Scott Perry from Pennsylvania and stated, ‘Can you send me the number for the speaker and the leader of PA Legislature. POTUS wants to chat with them.’ This was an overt act in furtherance of the conspiracy.”

* According to the indictment, on December 3, 2020, Trump posted on Twitter, “Wow! Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when Republicans were forced to leave the large counting room. Plenty more coming, but this alone leads to an easy win of the State!” According to the indictment, “this was an overt act in furtherance of the conspiracy.”

The NYT commentary said, “The inclusion in the indictment of multiple tweets by Trump suggests the expansive nature of the racketeering charges. It would be difficult to prove that each tweet was a criminal act on its own, but prosecutors are suggesting that each one was part of the larger conspiracy to obstruct the election.”

* On December 8, 2020, Trump and conservative attorney John Eastman, who is among those indicted, rang Republican National Committee Chairwoman Ronna McDaniel to “request her assistance gathering certain individuals to meet and cast electoral votes” for Trump in certain states “despite the fact that… [he had] lost the…election”.

The NYT commentary said that while the attempt by Trump and Eastman to enlist McDaniel in a “scheme to create fake slates of pro-Trump electors first emerged in the work of the House select committee that investigated January 6, it still is a big deal”. This is because “It directly implicates both the former president and the Republican establishment in the plan to falsify slates of electors to the Electoral College.”

How likely is it that these charges will stick?

The Georgia law speaks of a “pattern of racketeering activity” and, according to The NYT, “it is broader than the federal law in that the attempt, solicitation, coercion, and intimidation of another person to commit one of the offences can be considered racketeering activity”.

Mears, the legal expert quoted above, told The NYT that the law doesn’t require the state to prove that Trump knew about or ordered all the crimes, just that he was the head of an enterprise that carried them out.

Trump’s main defence would likely be to show that the various actors did not intend to commit a crime, The NYT report said.

The NYT report noted Fulton County district attorney Fani T Willis’s “extensive experience” with racketeering cases. “RICO is a tool that allows a prosecutor’s office or law enforcement to tell the whole story,” Willis, who has brought the indictment against Trump, said at a news conference in August, The NYT said.

Conviction for racketeering in Georgia attracts a prison term of 20 years.