Georgia’s two nationally spotlighted RICO prosecutions – respectively targeting Trump’s election scheme and “Cop City” protesters – are being cheered or jeered by political partisans, depending on whose agenda is served. But a prominent civil liberties attorney defending one of Trump’s advisors said both cases show how racketeering laws are a “dire” threat to the First Amendment and legal advice.
RICO has been “used, and I would rather say abused by using the statute as a gross overkill” outside of its original Mafia-targeting intent, said Harvey Silverglate, co-founder of the Foundation for Individual Rights and Expression and co-counsel for John Eastman, a former Trump attorney who is now a defendant in the Fulton County case. “[RICO] is a gross violation of the underpinning of the Anglo-American legal tradition of having somebody responsible for what he or she does but not what somebody else does.”
Contrary to some of the MAGA world’s whataboutism and false equivalency, there are significant differences in style and substance between the Trump and Cop City prosecutions. Nonetheless, they share troubling common themes of increasing, ever-expanding use of RICO to targets not only far outside crime-family cases but who also happen to be the political polar opposites of the elected prosecutors. And they share a context of increasingly draconian “anti-gang” laws that have sparked repeated controversies about over-prosecution. Political divisiveness and partisan relativism are potent tactics for a state to maintain extraordinary power like RICO – which is plainly a goal of the indictment against “Defend the Atlanta Forest” (DTAF) protesters and its demonization of anarchism. But the fact is, RICO laws have something for all Georgians and Americans to hate.
The federal Racketeer Influenced and Corrupt Organizations Act of 1970, emerging during the war against the Mafia, is a kind of anti-conspiracy law that prosecutes a pattern of alleged crimes over time as part of an overarching criminal “enterprise.” A RICO charge can add massive fines and prison time to what would normally be lesser crimes. Georgia is among many states that adopted their own RICO laws, with broader provisions that, among other things, allow more non-criminal acts to be introduced as evidence of the overall conspiracy. A conviction comes with a prison sentence of five to 20 years.
RICO already had an over-prosecution controversy in Fulton, where it was used in the Atlanta Public Schools cheating scandal. RICO’s pile-on approach to criminal charges has been controversial in traditional gang prosecutions, too, like a 2019 Augusta case where an innocent man faced hundreds of years in prison on RICO and “terrorism” charges on a drive-by shooting where no one was injured.
Not surprisingly, Silverglate is not a fan of such laws. As a criminal defense attorney, he has represented dozens of unpopular clients, from Leona Helmsley to “Fatal Vision” murder convict Jeffrey MacDonald. As a civil libertarian, he has authored such books as “Three Felonies a Day” about how easy it is for the government to criminalize daily life. Less than a year before attorney Sidney Powell became an infamous part of Trump’s election conspiracy theories – and now one of the Fulton RICO indictees – Silverglate co-authored a similar book with her called “Conviction Machine.”
“RICO is way way overused,” said Silverglate in a recent phone interview. “RICO was enacted as a federal statute by Congress in its war against the Mafia. And the purpose of it was this: the government couldn’t prove individual acts [against] everybody in a Mafia family. But they operated on the theory that if you’re a member of the family, you’re responsible for everything done by the family. It’s a kind of supercharged conspiracy theory.”
“The fact that states have enacted RICO statutes is insane,” he adds. “A lot of this is [used for] showboating.” He said that state prosecutions of non-Mafia-style crime under RICO show “exactly the perversion of the whole thing.” It also drags out trials into expensive courtroom dramas instead of relatively quick single cases, he said, adding that he believes Eastman would be relatively quickly acquitted either way.
Even those early Mafia cases had some chilling effect on attorneys, said Silverglate, as crime-family counsels were among those indicted for legal schemes. Silverglate has represented alleged organized crime figures himself and said he only did so singly to avoid getting swept up in RICO’s net and what he said has an improper effect on the right to legal advice.
That’s an issue raised in the Trump case, where indictees include attorneys like Eastman, whose charges, Silverglate said, are based on the fact that “he gave legal advice.” Silverglate said the case has “dire” implications for the right to counsel because “it makes lawyers think twice before they get into a hotly contested, hotly political case. It puts the lawyer at risk.”
The Trump case is being prosecuted by Democratic District Attorney Fani Willis, sparking accusations of politicized prosecution from some GOP corners. Trump and some other defendants have publicly claimed the RICO charges violate their free speech and other rights.
Spotlighting such objections were some dissents noted in the recently released report of a special grand jury that recommended seeking indictments against many other people, including “fake electors” and then U.S. Senators Kelly Loeffler and David Perdue. The report noted that two jurors thought “the electors should not be indicted for doing what they were misled to understand as their civic duty.” And one juror thought the senators’ statements, “while pandering to their political base, do not give rise to their being guilty of a criminal conspiracy.”
Willis’s eventual prosecution of 19 defendants did not include most of those figures and showed some restraint in not going after the MAGA movement as a whole, rather being focused on a discrete effort to overturn the 2020 presidential election. Nonetheless, that leaves plenty of interpretation about what qualifies as a crime or a criminal enterprise. Silverglate wouldn’t comment on the cases of other defendants but mentioned that if he were Trump’s attorney, he would have raised First and Sixth Amendment objections, too.
The “Cop City” case, where Republican Georgia Attorney General Chris Carr successfully got an indictment against 61 people in the DTAF protest movement, has clearer First Amendment implications. Acting more like a witch-finder general than an attorney general, Carr’s indictment came with a report that smears the entire protest movement as a criminal conspiracy, blasts anarchism and “anti-police sentiment” as essentially problematic, and attempts to link the whole thing to the 2020 Black Lives Matter movement in a puzzling stretch since the public didn’t even know about Atlanta’s secret public safety training center plan yet at that time.
Lauren C. Regan, executive director of the Oregon-based Civil Liberties Defense Center, suggested that Carr’s use of RICO is a form of political copycatting of Willis to gain similar media attention since state leaders “haven’t really been able to win in the court of public opinion on Cop City.” She adds that cases are “very, very different,” with the Trump case more focused on specific election statutes and the DTAF case going after a broad political movement.
One of Silverglate’s early cases was representing Harvard University students involved in a 1969 takeover of an administration building in protest of the Vietnam War and Civil Rights issues. He said he was not familiar with the details of the DTAF indictment but added that he has never seen RICO used against protesters. “No, never,” he said. “It has dire implications for the First Amendment.”
Like previously controversial state terrorism charges, the RICO pile-on is rooted in an attempt to criminalize an ideology – or any number of them, as the indictment stretches to define them. That makes some sense, as far as it goes, in addressing politically motivated crimes. But terrorism laws have long had the subjectivity problem of separating political violence the state doesn’t like from that which it does – or performs itself. Prosecuting ideas rather than acts becomes the danger.
Michael German, a fellow at the Brennan Center for Justice at the New York University School of Law, is a former FBI agent and a critic of the politicized use of terrorism laws who previously told SaportaReport that RICO laws exhibit similar mission creep and unequal uses.
German said the FBI claims not to police ideology yet breaks down domestic terrorism by ideological categories in reports to Congress. He said that habit trickles down to local law enforcement with categories like “ecoterrorism” – one prevalent in the state charges against “Cop City” protesters. He said white-supremacist violence is often ignored or less strongly policed by law enforcement than movements that challenge establishment structures.
“That’s the problem with using a word like ‘terrorism’ in statutes,” he said. “It goes back to the old adage that one man’s terrorist is another man’s freedom fighter… Many people’s definition of terrorism intentionally omits state violence from the definition, which is part of the problem.” He said that if laws instead used the term “political violence,” “then, of course, state violence would be included… [and the public] could understand the relationship between state violence and resistance of state violence.” That is not an academic idea, as state and local police are accused of unlawful arrests at a “Cop City” counterprotest that also included a strategy of officials calling protesters “terrorists.”
The DTAF indictment is part of that strategy. But it reads like a massive self-own. Its attempt to conjure a conspiracy theory of protesters is less revealing about that movement than about how politicians and police agencies view their own methods of conspiring to influence the public. Indeed, it’s illustrative of how easily these laws and their theories can be adapted to indict almost anyone. Someone with more wit and time could write a scathing parody of this indictment to apply to training center planners by replacing “anarchism” with “Atlanta Way-ism” and laying out the methods of propaganda, recruitment and illegal or quasi-legal methods involved in plowing ahead with a politically unpopular agenda.
The thing with laws like this is that people in power or political favor never think the double edge will cut, and they always turn out to be wrong in the end. The Trump case has some disturbing aspects of prosecution of speech and advice. The DTAF case is even more troubling, easily a tipping point for free speech in Georgia of the sort that comes along rarely and often requires U.S. Supreme Court course correction. The bright side is that freedom has won out in some of those cases, like the Civil Rights-era attempt to prevent Julian Bond from taking a seat in the Georgia General Assembly for speaking against Vietnam or the Red Scare prosecutions of communist labor organizers who violated segregationist ideas and one of whom nearly got executed for “insurrection.”
This moment of RICO indictments is more an indictment of RICO and a time to rethink its influence on Georgia’s political and cultural life, since as Silverglate warns, it is so easily politicized. “This is an attempt to round up everybody in this group, which is currently disfavored by prosecutors and by much of the establishment news media, in order to get a cheap conviction of everybody,” he said about the Trump case.
Those words could just as easily apply to “Cop City.” It’s up to us if they’re to be a First Amendment warning or epitaph.