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Trump could face "big picture" RICO case in Georgia, expert says

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Georgia grand jury likely to hear Trump case next week 05:32

If former President Donald Trump is indicted in Georgia, some believe he may face felony counts unlike any of the 78 charges already filed against him. Fulton County District Attorney Fani Willis could pursue Trump under a law commonly known for its use against organized crime, but that has far broader applications — the state's Racketeer Influenced and Corrupt Organizations Act, better known as RICO — sources have told CBS News.

For the past two and a half years, Willis' office has been investigating alleged efforts by Trump and his allies to overturn his loss in the 2020 election in Georgia.

Georgia's RICO statute is considered to be more expansive in scope than the federal code from which it is derived. In Georgia, prosecutors are able to point to a range of organized or related attempts to engage in predicate acts or predicate crimes, which include everything from violent crimes such as murder or arson, to false statements and obstruction of justice.

"The racketeering statute does not look simply at a single crime, it tries to look at the big picture of view," said Morgan Cloud, a law professor at Emory University. 

In order to prove racketeering took place, Cloud said prosecutors must convince a jury beyond a reasonable doubt that at least two of the racketeering activities are related in terms of method, purpose, or victims. And in Trump's case, Cloud believes "the most important of those would be related in terms of goal or purpose, which was to overturn the 2020 presidential election in Georgia."

"It has to be not just one separate isolated event, but a series of interrelated actions," Cloud said. 

In order to convict under RICO, prosecutors have to prove beyond a reasonable doubt that there is an enterprise, which can range from a corporation to an informal group of individuals, who undertake criminal actions as part of a shared goal. That is why, if Trump is charged under RICO statutes,  he is likely not alone in being exposed to potential racketeering charges. In 2022, Willis' office sent letters to multiple Trump allies warning that they could face unspecified charges, including Trump's former attorney, Rudy Giuliani, and so-called "fake electors" — supporters who submitted an illegitimate version of the state's Electoral College vote.

Cloud suggested several key events after the 2020 election could be considered "actions taken as part of that scheme" under Georgia's RICO statute. 

He pointed to three phone calls Trump made to Georgia officials encouraging them to find fraud, including a recorded call on January 2, 2021, between Trump and Georgia Republican Secretary of State Brad Raffensperger, during which Trump told Raffensperger, "I just want to find 11,780 votes" — the number he would have needed to overtake then-President-elect Joe Biden in that state. 

Trump has repeatedly denied wrongdoing, and described the conversation with Raffensperger as "an absolutely PERFECT phone call."

In addition to Trump's calls, unfounded claims of fraud and misconduct among state officials made by Giuliani during appearances before the Georgia legislature may also be considered racketeering activity, according to Cloud, as could a "surprise visit" by Trump's White House chief of staff Mark Meadows to observe an audit of signatures on absentee ballot envelopes in Cobb County, Georgia. Meadows was ultimately denied access to the audit because it was not open to the public.

An attorney for Meadows did not reply to a request for comment.

Willis's high-profile RICO history

"If there's any team of state prosecutors in the country that's going to be able to organize and present a racketeering statute prosecution in Georgia that's coherent and effective and understood by the jury, these are the people," Cloud said of Willis and her team. "I personally would be surprised if she did not pursue racketeering claims based upon the facts and the law and her track record and her team's track record."

Fulton County District Attorney Fani Willis
Fani Willis, the district attorney of Fulton County, Georgia, in her office chambers in the Fulton County Justice Center Tower in Atlanta, Sept. 20, 2022. David Walter Banks/The Washington Post/Getty Images

Willis rose to prominence in the Atlanta area for trying another unusual RICO case that received national attention. As an assistant district attorney, she led the 2015 prosecution of 12 Atlanta Public School educators who were accused of conspiring to inflate students' results on standardized tests. All but one of the defendants were found guilty of racketeering and other crimes.

The 11 convicted included teachers, testing coordinators and other administrators who were accused of participating in a conspiracy dating to 2005, motivated by pressure to meet federal and local testing standards to receive bonuses or keep their jobs.

"The reason that I am a fan of RICO is, I think jurors are very, very intelligent," Willis told reporters at an August 2022 press conference about a separate gang-related indictment brought by her office. "They want to know what happened. They want to make an accurate decision about someone's life. And so RICO is a tool that allows a prosecutor's office and law enforcement to tell the whole story."

Willis, who took office in 2021, is currently prosecuting a RICO case involving the chart-topping rapper Young Thug, whose name is Jeffrey Lamar Williams, and 28 others. The conspiracy charge dates back to 2013 and the gang charge to 2018. Young Thug is accused of being one of three founders of the Young Slime Life, "a criminal street gang that started in late 2012" in Atlanta, the indictment says. He has pleaded not guilty.

While several defendants have pleaded guilty in that case, there are six others who will be tried separately. Eight defendants are currently on trial, and jury selection has dragged on for months. The trial is expected to be the longest in Georgia history.

A case unlike any other

While RICO cases are not anything new in Fulton County, experts say pursuing such a case against a former president would be unprecedented. 

"We are in deeply uncharted territory," Georgia State University law professor Anthony Michael Kreis said. "Applying [RICO] in the election law setting is very new. That is something that we haven't seen in Georgia before, and it hasn't really happened elsewhere before."

While a grand jury in Fulton County is impaneled until Sept. 1, Willis has indicated in letters to county officials that potential indictments in the case could come before Aug. 18. 

The investigation dates back to shortly after Trump's recorded Jan. 2, 2021 phone call with Raffensperger. 

In 2022, the district attorney's office impaneled a special purpose grand jury to investigate the case. It had the power to issue subpoenas and produce a final report with charging recommendations, but could not issue indictments. Over the course of six months in 2022, it interviewed 75 witnesses. 

Portions of the report released to the public in February said a "majority of the Grand Jury believes that perjury may have been committed by one or more witnesses testifying before it," and recommended that the district attorney seek "appropriate indictments" for crimes where the "evidence is compelling."

In interviews with the media after the special purpose grand jury's report was delivered to Willis' office, its foreperson indicated multiple indictments were recommended.

If Trump is charged in Fulton County, the case would be different in several significant ways from the federal trials he's facing. 

First, if reelected in 2024, Trump would not be able to pardon himself on state criminal charges as he would be able to do in the federal prosecutions.

The other big difference is that the courthouse in Fulton County allows cameras inside the courtroom to broadcast the proceedings, while federal courts do not. Kreis believes the ability to watch would be crucial to democracy, "so that people understand exactly what happened here in Georgia and throughout the country in the aftermath of 2020 elections, and that they're able to see the evidence for themselves and to understand the kind of damage that Donald Trump and his allies did."

Security barriers outside the Fulton County courthouse in Atlanta
Security barriers line the sidewalk in front of the Lewis R. Slaton Courthouse in Atlanta, Georgia, on July 31, 2023.  ELIJAH NOUVELAGE/AFP via Getty Images

Trump and Giuliani have denied all allegations of wrongdoing related to the aftermath of the 2020 election. Trump has repeatedly criticized Willis, accusing her of investigating him for political gain.

Jennifer Little, an attorney for Trump, said in a Feb. 26 interview that Trump intends to fight a potential indictment.

"We absolutely do not believe that our client did anything wrong, and if any indictments were to come down, those are faulty indictments," Little said. "We will absolutely fight anything tooth and nail."

Asked Thursday if he expects his client Giuliani will face a RICO charge, Robert Costello said, "I have no idea what they are doing."

Willis spoke to local reporters in the Atlanta area last week but remained unforthcoming about what to expect in the coming days.

"We're ready," Willis said.

–Nikole Killion contributed reporting for this story.

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