<p>A former federal prosecutor called the racketeering conspiracy indictment against former President Donald Trump and his allies a flawed case, claiming attempts to change an election outcome are legal and an actual criminal enterprise must be a continuing threat.</p>
<p>Fulton County District Attorney Fani Willis launched a 41-count indictment against Trump and 18 co-conspirators last week, accusing the defendants of attempting to overturn the 2020 presidential election result by allegedly violating the state&#8217;s version of the Racketeering Influenced and Corrupt Organizations (RICO) Act and soliciting an official to violate their oath of office.</p>
<p>Although Georgia&#8217;s RICO Act allows prosecutors to connect various crimes committed by multiple defendants, former Chief Assistant U.S. Attorney in the Southern District of New York Andrew McCarthy wrote an <a href="https://themessenger.com/opinion/the-flaw-in-trumps-georgia-indictment" target="_blank" rel="noopener">opinion piece for The Messenger</a> pointing to &#8220;a giant hole&#8221; in the case due to &#8220;the lack of a clear crime to which Trump and his co-defendants can plausibly be said to have agreed.&#8221;</p>
<p>Racketeering conspiracy charges typically apply to mafia-type criminal organizations that engage in offenses you would see in an episode of &#8220;The Sopranos.&#8221; But because conspiracy charges require an agreement with two or more people to violate a criminal statute, McCarthy said that if there is no agreement about committing a crime, there is no conspiracy.</p>
<p>In the indictment, Willis alleges that Trump and the co-conspirators tried to keep the former president in power after the 2020 election results claimed otherwise by explicitly attempting to &#8220;change the outcome of the election in favor of Trump.&#8221; Yet trying to reverse the election results without sharing an &#8220;overarching objective&#8221; is technically not a crime, McCarthy said.</p>
<p>He further alleges Willis is attempting to get around proof of the objective by using tautology in the charges, specifically noting on page 14 of the indictment that this was a &#8220;conspiracy to unlawfully change the outcome of the election in favor of Trump.&#8221;</p>
<p>&#8220;That is, the lawful objective of changing the election outcome somehow becomes unlawful because she invokes the apparently talismanic word &#8216;unlawful,'&#8221; McCarthy wrote. &#8220;But there is no crime of unlawfully trying to change an election outcome — not in Georgia law nor any other American law.&#8221;</p>
<p>McCarthy also said the RICO charge doesn&#8217;t fit the Georgia case because Trump and the co-defendants &#8220;did not intend or desire to belong to a group, or even see themselves as a group.&#8221;</p>
<p>&#8220;Their objective allegedly was to maintain Trump in power, not to participate in an enterprise,&#8221; he wrote.</p>
<p>Democratic State Representative Tonya Miller of Georgia, also a former prosecutor in Fulton County, told <a href="https://www.msnbc.com/ali-velshi/watch/before-trump-fani-willis-used-rico-in-a-cheating-scandal-191214661527" target="_blank" rel="noopener">MSNBC</a> on Sunday that the word &#8220;enterprise&#8221; under state law is defined broadly and includes one or more persons, legal or illegal businesses, and government agencies.</p>
<p>&#8220;RICO is particularly — in Georgia — particularly broad, more so than the federal version of RICO, because it isn&#8217;t just crimes that can form the basis of racketeering activity,&#8221; Miller said. &#8220;It can be acts involving crimes, threats involving crimes, so it really can get conduct that isn&#8217;t necessarily on its face criminal. We see that in this indictment.&#8221;</p>
<p><span style="font-weight: 400">At the end of each act in the indictment, Willis alleges the defendants and other members and associates of the enterprise committed overt acts in furtherance of the conspiracy.</span></p>
<p>Emory University Law Professor Fred Smith Jr. told the outlet that the act of conspiracy could count so long as the action was in furtherance of the same goal.</p>
<p>&#8220;Now, of course, there does need to be illegal activity, a pattern of illegal activity, which under Georgia law is two crimes that are listed in that particular state statute,&#8221; Smith said. &#8220;But all other actions that may not themselves be illegal, so long as they were in furtherance of that same scheme, that same illegal goal can qualify.&#8221;</p>

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Former Federal Prosecutor Calls Fulton County Indictment Against Trump, Allies A Flawed Case

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Former Federal Prosecutor Calls Fulton County Indictment Against Trump, Allies A Flawed Case