The silliness, misinformation and plain ignorance of law in the commentary about Fulton County Georgia’s racketeer influenced and corrupt organization (RICO) indictment of Donald Trump and 18 co-conspirators is metastasizing and requires a “course” of treatment.  “Here’s 101.”  Begin with Chris Christie, a former United States Attorney in one of America’s crimiest districts, and thus one who knows better.

John Gotti

Nevertheless, Christie complained that Fulton District Attorney Fani Willis need and should not have RICOed Trump et al. because she is duplicating what special counsel Jack Smith had already done in the federal indictment returned a few days before in the District of Columbia.  Paraphrasing the sick Mrs. Lincoln joke; aside from consideration of the deserved day of reckoning for Rudy Giuliani, Mark Meadows, John Eastman, Jeffrey Clark, Sidney Powell, Kenneth Chesbro and the residual support crew – all deserving eternal passage on the U.S.S. Levant[1] – this RICO prosecution is amply warranted and not an anomalous use of the statute.  Indeed, it’s being used for precisely what RICO laws were enacted to address: to replace substantially futile whack-a-mole prosecutions of people engaged in a pattern of enterprise criminality.  The first and federal RICO statute was designed by Notre Dame Law Professor Robert Blakey[2] to not merely punish but remedy organizational criminality, whether that involves a crime family with roots in Sicily[3] or one holed up in the West Wing.  The goal is not merely to punish the kingpin, a Teflon Don like John Gotti or Trump, but their confederates as well and also kill their organizations.  RICO laws connect the dots between the numerous crimes committed during an enterprise-wide conspiracy such as organizing and running illegal drug, gambling or sex trafficking in an American city, or as here, organizing and deploying people to overturn the results of an American Presidential election.

Robert Blakey

Jack Smith was right to limit his indictment to public enemy number one, though additional indictments and defendants may be in the offing and the conspiracy counts involving fraud against the government and voter disenfranchisement are RICO-like, though not an explicit use of the federal racketeering statute.

DA Willis was equally warranted and wise to address the totality of this enterprise’s criminality in Georgia, violative of numerous Georgia statutes.  One window into and concise description of Trump’s criminal enterprise is found in the papers filed by Mark Meadows’ lawyers when seeking removal of his case from a Georgia court to a federal tribunal.  In that filing there is a detailed description of Meadows making calls, booking appointments and traveling interstate, all consistent with the duties of the chief of staff of an organization, and in this case an allegedly corrupt and criminal one.

Fani Willis & Jack Smith

On the “whose prosecution was warranted, justified, appropriate and right sized?”  The clear answer is both.  That is also consistent with the dual sovereignty that is not a mere artifact of the American Constitution but a basic and central component that embodies the deal struck by the states and the first U.S. government floundering under the Articles of Confederation.

It may be that Jack Smith’s laser-focused indictment will get to trial before the 2024 election and that Fani Willis’ is too sprawling with too many defendants to be tried in that timeframe.  It’s also possible that the grievous errors made by Fulton County Judge Robert McBurney along the way will hamper and restrict the state prosecution.[4]  But both indictments were warranted, and both may result in much needed societal retribution for the serious enterprise criminality alleged against Trump and his lackeys.

[1]   See Edward Everett Hale’s classic story “The Man Without a Country.”

[2]   A man far wiser than H.L., who I debated about what I cited as the due process problems in certain RICO prosecutions, though not the statute, at a RICO law conference at The Red Lion La Posada Hotel in Scottsdale, Arizona in October 1984.

[3]   One of the original criticisms of RICO was the acronym deemed offensive by the Italian American Civil Rights League, whose chaplain, Father Louis Gigante, was the brother of Vincent (“Vinny the Chin”) Gigante, boss of the Genovese crime family in metropolitan New York City.

[4]   See H.L. 165 “Fulton County Georgia Judge Robert McBurney is an Idiot and Other Observations” February 23, 2023.