Schiff should consider using RICO framework to organize impeachment

The Congress is now investigating various facets of the president’s political, business, and personal affairs, all in the context of impeachment. I suggest that House Intelligence Chairman Adam Schiff (D-Calif.) consider looking to the Racketeer Influenced and Corrupt Organizations Act (RICO) as an organizing principle, and way to articulate why impeachment is moving forward, and how it can be framed.

There is impassioned discussion (at least among Democrats) about what the focus of impeachment should be: a sharp focus on Ukraine, or a wider approach which encompasses the myriad potential “high crimes and misdemeanors” which the president may have committed: Ukraine extortion or bribery,  Moscow building projects, contacts with Russian diplomats, the various wrongdoings of Trump foundation, accepting funds in the context of hotels throughout the world in exchange for policy change; funds spent on the inauguration, the use of undocumented workers at Trump properties… the list goes on and on.

But perhaps the Congress (and the public), like the fabled blind men touching an elephant, are actually looking at various parts of a single whole. We have a set of laws for such a situation, and we should be thinking about them now: RICO.

RICO provides powerful criminal penalties for persons who engage in a “pattern of racketeering activity” and who have a specified relationship to an “enterprise” that affects interstate or foreign commerce. Under the RICO statute, “racketeering activity” includes state offenses such as murder, robbery, extortion, and several other serious offenses, punishable by imprisonment for more than one year, and more than 100 serious federal offenses including extortion, interstate theft, narcotics violations, mail fraud fraud, securities fraud, currency reporting violations, certain immigration offenses, and terrorism related offenses. A “pattern” may be comprised of any combination of two or more of these state or federal crimes committed within a statutorily prescribed time period.

The basic thrust of RICO is to address situations where the enterprise takes on a criminal life of its own.  Although usually associated with organized crime (what the FBI used to call “La Cosa Nostra”), it has been used, with great success in a variety of situations. Rudy Giuliani, of course, the the U.S. Attorney for the Southern District of New York was the great pioneer of the use of RICO.

Why is RICO a good framework to think about Trump?  RICO was originally conceived to recognize (in the economic sphere) that organization crime was particularly significant. Congress said: “What is needed here . . . are new approaches that will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself, and the attack must take place on all available fronts.”

Trump (and his organizations) fits the bill, although the harm is not primarily economic, but national security. And RICO has been used outside the pure economic (or traditional “Cosa Nostra”) setting, including to attack terrorism, corrupt businesses and the like. The touchstones are an enterprise and the pattern of racketeering activity.

“The Trump Enterprise,” including the president, family members, enablers (Giuliani, Paul Manafort, Michael Flynn, and a cast of hundreds) seems to fit the bill. Courts have held that an “enterprise” can be a “legal enterprise,” e.g., a corporation, or even a state governmental office, or an “association in fact,” (e.g., the Genovese Crime Family). The definition is wide, and basically encompasses an organization that exists over time, has some sort of hierarchy, and acts as an organization. “The Trump Enterprise,” would would include the Office of the President, as well as the Trump Foundation and the Trump Organization, as well as others.

Once you have an “Enterprise,” you need to show a “pattern” of activity, and that the pattern includes criminal offenses (all of which are either misdemeanors or felonies, and certainly fit the definition of “high crimes,” as does RICO itself). These include things like extortion, bribery, mail fraud, wire fraud, etc.

In short, the best way to think about the president as we head towards impeachment is using the framework of RICO. Of course, an impeachment inquiry is different that a criminal RICO prosecution. But RICO offers a well-established conceptual framework to think about the president. It can help us all organize our facts, outline an approach. It can serve as the blueprint for Articles of Impeachment, which are led by an accusation of conducting a Racketeering Enterprise, with the multitude of individual wrongdoing (which can include lying to the public, obstructing Congress, violating campaign finance law, paying off porn stars) as “predicate acts” (even if they do not fall into the list of offenses, since this is an impeachment, not a prosecution).

Steven Cash is Counsel at Day Pitney LLP in its Washington, D.C. and New York offices; former Chief Counsel to Sen. Dianne Feinstein (D-Calif.); former CIA Operations Officer and Assistant General Counsel and Former Assistant District Attorney with the New York County District Attorney’s Office.