Is a federal racketeering charge in Trump’s future?

The Washington Post reported on Friday that Fulton County, Georgia District Attorney Fani Willis is considering indicting former President Donald Trump for violating her state’s “Racketeer Influenced Criminal Organization” statute, or RICO.

Less discussed, while the “indictment watch” continues in Special Counsel Jack Smith’s classified documents case against Trump, is the possibility that Smith is considering a federal RICO charge in his other Trump investigation, the one related to January 6.

In April, the New York Times reported that Smith was investigating whether Trump fraudulently raised hundreds of millions of dollars from supporters after the 2020 election. Powerful evidence suggests that Trump knew that the premise of the fundraising — that he had won the election — was false; two independent research companies hired by his campaign post-election told Trump that ballot fraud was inconsequential.

In addition, last year’s January 6 Committee produced evidence that much of the money raised wasn’t used for its advertised purpose — to reverse the election. Some, for example, apparently went to Trump hotels.

But a question arises. While fraudulent fundraising is no trivial offense, it hardly compares with trying to end America’s 225-year tradition of the peaceful transfer of presidential power. So why, with time of the essence, is the special counsel’s team spending valuable weeks investigating so much lesser a crime than the main event?

One answer is that Smith may be looking to charge a RICO violation, which carries a 20-year maximum prison term. The statute makes it unlawful for an individual to receive money through “a pattern of racketeering activity” and to use the money to operate or maintain an “enterprise.”

A pattern of racketeering activity is defined as two or more crimes from a list of approximately 100 statutes. Wire fraud — a scheme to deceive others and deprive them of money via the use of electronic communications — is on the list. Fraudulent fundraising by electronic message is a perfect fit. On Monday, the Washington Post reported that prosecutors “have sought to show … that Trump and aides willfully ignored evidence in their push to raise money.”

Importantly, wire fraud seems the least problematic of the very few “racketeering activity” crimes that may relate to Trump’s January 6 activities. For example, “extortion” is on the RICO list, and Trump walked very close to the line in his infamous January 2, 2021 phone call with Georgia Secretary of State Brad Raffensperger. But proving beyond a reasonable doubt that Trump violated the federal extortion statute would not be easy.

Likewise, the crime of interfering with a government proceeding — here, the congressional certification of President Joe Biden’s election — qualifies as “racketeering activity.” Trump pressuring Vice President Mike Pence to unlawfully delay the certification would seem to meet the statutory requirements.

But a minority of Trump-appointed federal judges have said in other January 6 cases that the statute should be limited to cases involving hiding documents from Congress or tampering with witnesses. While that view has not prevailed, the Supreme Court has yet to weigh in on whether that statute applies beyond such efforts to squelch evidence and keep it from Congress. In these circumstances, relying under RICO on that crime, or charging it separately, would carry risk on appeal to the Supreme Court should Trump be convicted.

A RICO charge brings huge advantages to prosecutors. It allows them to tell a coherent story by introducing a wide range of evidence of the enterprise’s legal and illegal activities relating to the enterprise’s operation. Here, the enterprise would likely be the 2020 Trump campaign. It raised the money that is the basis for the alleged wire fraud. It also oversaw the “fake elector” scheme in seven states to advance Trump’s apparent scheme to overturn the election.

Of course, apart from RICO, a 20-year maximum prison term is also the penalty for seditious conspiracy. Juries have convicted 10 militant Oath Keepers and Proud Boys for their roles leading the January 6 mob.

But seditious conspiracy requires proof of an intention to use force. We do not yet know whether Smith can prove beyond a reasonable doubt that Trump intended his followers to use violence at the Capitol. Hence, indicting Trump for a RICO violation based on wire fraud could be the surest way for Jack Smith to convict Trump of a crime with a very long term of imprisonment.

Mind you, Smith’s investigation of Trump’s fundraising may not be about RICO at all, but rather the special counsel simply leaving no stone unturned, with the possibility of charging wire fraud as a separate offense. It carries a five-year sentence, though each electronic message connected to the scheme to defraud may be charged as a separate crime.

We won’t know unless and until a grand jury returns an indictment against Trump relating to January 6. But this much is sure: if Trump faces a RICO indictment, being charged as a “racketeer” would be a brand that, even before any jury verdict, can stick like Gorilla glue, especially to a former president.

Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.