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Trump indictment in Georgia is being brought under the RICO Act

LEILA FADEL, HOST:

Former President Donald Trump has been indicted again, the fourth time since April. This one comes out of Fulton County, Ga. Trump's accused of a conspiracy to overturn his 2020 defeat. And he's charged, along with 18 others, in a sprawling indictment totaling 41 counts. Those charges include conspiracy to commit election fraud, filing false statements and forgery. Trump himself faces 13 felony charges. Now, this case is being brought under the RICO Act in Georgia. That stands for Racketeer Influenced and Corrupt Organizations Act. It's typically used by prosecutors to go after organized crime involving multiple defendants. And last night, when Fulton County District Attorney Fani Willis announced the charges, she framed them this way.

(SOUNDBITE OF ARCHIVED RECORDING)

FANI WILLIS: The defendants engaged in a criminal racketeering enterprise to overturn Georgia's presidential election result.

FADEL: To talk about this case and the RICO Act, Fred Smith Jr. is with us. He's a constitutional law scholar and professor at the Emory University School of Law. Good morning. Thanks for being on the program.

FRED SMITH JR: Good morning. Pleasure to be here.

FADEL: So if you could just start by telling us more about the RICO Act. That is what this case is brought under.

SMITH: Yes. So Georgia's RICO Act is broader than its federal counterpart...

FADEL: OK.

SMITH: ...Which is perhaps why we're seeing it brought at the state level and not at the federal level. And part of that is because the prosecutors simply need to demonstrate that there is an enterprise, meaning that these individuals were associated in fact. So they don't have to be a kind of formal enterprise. And all the prosecutors need to show in order to bring a RICO charge is that these individuals were acting with a common purpose and that they engaged in a pattern of illegal activities in order to achieve that common illegal purpose.

FADEL: So the bar for an indictment under the RICO Act is quite low, it sounds like.

SMITH: It is in Georgia, certainly compared to its federal counterpart.

FADEL: What is specifically different? I mean, what is specifically needed to build a case? So you have this indictment. To get a conviction in a case like this, what type of case would they have to present?

SMITH: Yeah, so they need to demonstrate a pattern of illegal activities. And the Georgia law in OSGA 16-14-3, it lays out the various crimes that can qualify. And generally, they are felonies. And they need to show - the prosecutors need to show a pattern. But under Georgia law, two illegal activities is sufficient to demonstrate such a pattern. So long as these individuals acted with a common purpose and a common scheme and engaged in that sort of pattern to achieve an illegal objective, that is sufficient to demonstrate a RICO charge. And, of course, there's a lot of other charges here, too. But the RICO charge takes up the bulk of the indictment.

FADEL: And obviously, the pattern and the crime here is the accusation of trying to overturn that defeat in 2020. Not a typical case. It's a former president here. But would the RICO act typically be used in a case like this, conspiring in this way?

SMITH: In Georgia, yes. So this particular prosecutor, Fani Willis, the district attorney, has used RICO throughout her career in ways that might be deemed creative. Ten years ago, she brought RICO charges against teachers and administrators who changed students' test scores and the like. And that was seen as somewhat bold and aggressive at the time. But those charges held. And as we speak, this office is bringing charges against a group called YSL, which is a hip-hop association of individuals that prosecutors are calling a gang. So we've seen this before.

FADEL: Fred Smith Jr. is a constitutional scholar and law professor at Emory University in Atlanta. Thank you for your time, Fred.

SMITH: Thank you. Transcript provided by NPR, Copyright NPR.

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