What's All the Racket With RICO Law?
Georgia courts are muy rico with racketeering cases lately. First, it was Young Thug and his YSL record label who faced 55 different charges under Georgia's state racketeering law. Then, former president Donald Trump was also indicted under the same Georgia law (on top of parallel federal charges). All of these charges come under some version or another of the RICO Act, which is a bit of a household name now as far as laws go. But what exactly is it, and why is it being used to prosecute two seemingly very different cases? Let's break it down.
A Run-down of Racketeering Law
"RICO" is one of those rare government acronyms that rolls right off the tongue without making you groan (unlike, say, DAIRY or Opportunity KNOCKS). It's short for the Racketeer Influenced and Corrupt Organizations Act, and was drafted in the 70s under President Nixon. Originally targeted at the Mafia, it has since been applied more broadly. In addition to the federal statute, 33 states have adopted their own state versions of RICO law.
To prosecute a RICO case, the government has to prove certain elements outlined by the RICO Act. The activity must be connected to an "enterprise," which could be a legitimate business or an illegal organization. The person being charged (the defendant) must have some kind of connection with said enterprise. Finally, there must be a pattern of "racketeering activity," meaning that a single instance isn't enough; there must be at least two qualifying criminal acts that happen within a ten-year period.
What kind of crimes are considered "racketeering activity"? Just about everything you could imagine. The federal act lists about 35 different specific activities (called "predicate criminal acts") in both broad and specific forms. To give you an idea, predicate acts include murder, financial crimes, drug crimes, copyright violations, fraud, and even has something on nuclear weapons.
RICO is no small potatoes statute, either. If convicted, you could be sentenced up to 20 years in prison. If that doesn't sound bad enough, it also comes with heavy financial penalties. Finally, on top of that, you can face time and fines for any other crimes you engaged in and were convicted of.
It's also worth noting that RICO isn't just criminal; it also has a civil component. Anyone who has been a victim of RICO-related crime can bring their own suit in civil court. If they win, they can receive "treble damages": three times the amount of money that the RICO violator caused them in harm.
Racketeering vs. Conspiracy
How is racketeering different from conspiracy? The two charges may sound similar, but to prosecutors, the big distinction is what they're required to prove — and it can make a world of difference in getting a conviction.
On the one hand, a conspiracy doesn't require the pattern of criminal activity that RICO charges require; one instance is enough. Conspiracy also doesn't require there to be some degree of more elaborate, organized enterprise, like with RICO. Conspiracy doesn't even require that the illegal activity that people agree to do actually be accomplished; it's enough that two or more people agree to do something illegal – even if their plans are thwarted or they have second thoughts and fail to follow through with the plan.
In some ways, conspiracy charges may be easier to bring because they don't require the prosecution to establish an ongoing pattern of criminal behavior or to show that there was a more organized structure (the existence of an enterprise, rather than just a couple of individuals who mostly worked independently but for the one instance).
On the other hand, note that RICO was enacted in response to the country's organized crime problem because the government was having a hard time prosecuting the mob with conspiracy alone. Under a conspiracy theory, prosecutors could only go after individual criminals instead of an entire organization. RICO allows the government to prosecute all people involved in the enterprise.
Concurrent Jurisdiction: No Double Jeopardy
As we covered in a blog earlier this month about Georgia's charges against Trump, the former president (and anyone else) can be legally charged separately by the feds and the State of Georgia. A unique thing about RICO law is that both federal and state courts have "concurrent jurisdiction" over racketeering claims. The Supreme Court decided unanimously in a 1990 case that both the federal government and any state can each bring their own charges against the same person for violating their respective RICO statutes.
You might be wondering, then: if both a state and the feds can find you guilty of racketeering, wouldn't that violate the double jeopardy clause of the Fifth Amendment? Not really, actually. The concept of double jeopardy guards you from being tried for the same crime twice. But there are lots of examples where something is illegal under a state's laws and also illegal under federal law; those would be considered different crimes, even if they criminalized the same act. This exception to double jeopardy is known as the "separate sovereigns" or "dual-sovereignty" doctrine, because the state government and the federal government are considered different governing bodies with their own separate laws. This doctrine has been well established since the mid-1800s,
Supreme Court Recently Reaffirmed Dual Sovereignty
The Supreme Court reaffirmed this long-standing doctrine in a case called Gamble v. United States. Gamble, and Alabama resident, was prosecuted under both federal law and Alabama law for being a felon in possession of a handgun. In 2018, Gamble asked the court to overturn the dual sovereignty doctrine, arguing that being charged by both sovereigns violated his protection from double jeopardy. Gamble had some support for this position, notably from then-Senator Orrin Hatch, who wrote a long amicus brief trying to convince the court that it was time to overturn the doctrine. Hatch argued that he was concerned about "the rapid expansion of both the scope and substance of modern federal criminal law." But he couldn't convince the majority of justices, who declined to overturn the doctrine.
Double Trouble for Donald Trump
Why is this relevant here? Well, since the Gamble decision preserved concurrent jurisdiction of RICO charges, Trump can't just get out of his racketeering charges at the state level if he's found not guilty in the federal case (or vice versa). Nor can he "remove" his Georgia case to federal court (which, in some cases, can be like running to Daddy when Mommy already said no to dessert).
That is why it's actually pretty meaningful that the state of Georgia has independently decided to indict Trump under its own state law. He'll have to wage the same legal battle against the Fulton County DA as he does in D.C. This might be some consolation for Young Thug, whose father was vocally upset when the former president was released on bond but Thug was not; at least the Atlanta rapper only has to worry about the courts in his home state.
- Explainer: Georgia's Charges Against Trump in Context (FindLaw's Law and Daily Life blog)
- Young Thug Trial Judge Hands out Homework (FindLaw's Practice of Law blog)
- Racketeering/RICO (FindLaw's Criminal Law blog)
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