Fani Willis, a Georgia district attorney, opened her investigation into Donald Trump based on the release of a recording of a January 2021 phone call between Trump and Georgia’s Secretary of State Brad Raffensperger.
Trump suggested during the call that Raffensperger, a Republican and the state’s top elections official, could help “find” the votes needed to overturn his narrow loss to Democrat Joe Biden.
More than two years later, the indictment brought on Monday by a grand jury went far beyond that phone call, alleging a web of crimes committed by Trump and others.
Willis used Georgia’s Racketeer Influenced and Corrupt Organizations, or RICO, law to charge Trump and his associates for allegedly participating in a wide-ranging conspiracy to overturn the state’s 2020 election results.
Here’s a look at how the law works:
What is RICO and how does it apply to Trump, allies?
The federal Racketeer Influenced and Corrupt Organisations Act originated in 1970 as a tool to fight organised crime. The law enabled prosecutors to target people in positions of authority within a criminal organisation, not just lower-level people doing the dirty work.
But its use was never meant to be limited exclusively to organised crime.
Within a few years of the federal law taking effect, states began passing their own RICO laws.
The US Supreme Court noted in a 1989 opinion that the law was drafted “broadly enough to encompass a wide range of criminal activity, taking many different forms and likely to attract a broad array of perpetrators”.
Generally speaking, RICO laws allow prosecutors to charge multiple people who commit separate crimes while working towards a common goal.
What does Georgia’s RICO law say?
Georgia’s RICO Act, adopted in 1980, makes it a crime to participate in, acquire or maintain control of an “enterprise” through a “pattern of racketeering activity” or to conspire to do so.
It’s important to note that the alleged scheme does not have to have been successful for a RICO charge to stick.
An “enterprise” can be a single person or a group of associated individuals with a common goal.
“Racketeering activity” means to commit, attempt to commit – or to solicit, coerce or intimidate someone else to commit – one of more than three dozen state crimes listed in the law.
At least two such acts are required to meet the standard of a “pattern of racketeering activity,” meaning prosecutors have to prove that a person has engaged in two or more related criminal acts as part of their participation in an enterprise to be convicted under RICO.
The US Supreme Court has said that federal RICO allegations must show continuity, that is to say, a series of related underlying acts over an extended period, not just a few weeks or months. But the Georgia Supreme Court has made clear there is no such requirement in the state law.
Why use the RICO statute?
“I’m a fan of RICO,” Willis said during a news conference in August 2022 as she announced a RICO indictment against more than two dozen alleged gang members.
Willis has said jurors want to know all the facts behind an alleged crime and that a RICO indictment enables prosecutors to provide a complete picture of all the alleged illegal activity.
A narrative introduction allows prosecutors to tell a story that can include a lot of detailed information that might not relate to specific crimes but is relevant to the broader alleged scheme.
RICO charges also carry a heavy potential sentence that can be added on top of the penalty for the underlying acts.
In Georgia, it’s a felony conviction that carries a prison term of five to 20 years; a fine of $25,000 or three times the amount of money gained from the criminal activity, whichever is greater; or both a prison sentence and a fine.
What are the challenges in using the RICO statute?
J Tom Morgan used the Georgia RICO statute to prosecute a corrupt sheriff when he was the district attorney in DeKalb County, which neighbours Fulton County. He said one challenge is explaining to a jury what the RICO law is and how it works.
“Everybody knows what a murder case is, what a rape case is, what a theft case is. But RICO is not in the everyday vernacular,” he said. “You don’t see a RICO charge on a television show about crime.”
Does Willis have previous experience with RICO cases?
When Willis was an assistant district attorney in the Fulton County District Attorney’s Office, she was a lead prosecutor in a RICO case against a group of Atlanta public school educators in a cheating scandal. After a months-long trial, a jury in April 2015 convicted 11 former educators of racketeering for their roles in a scheme to inflate students’ scores on standardised exams.
Since becoming district attorney in January 2021, she has brought several RICO indictments against alleged gang members, including several high-profile rap artists.
Lawyer John Floyd, a nationally known RICO expert in Atlanta, helped Willis with the school cheating case. Soon after opening the investigation into potential illegal meddling in the 2020 election in Georgia, she engaged him to serve as a special assistant district attorney to help with any racketeering cases her office might pursue.