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Why Fulton County District Attorney Fani Willis chose RICO to indict Trump

LEILA FADEL, HOST:

A Georgia grand jury indicted former President Donald Trump and 18 others for trying to subvert the will of voters and overturn his 2020 defeat. This is the fourth indictment against Trump since April, and he's the only former president who has ever been indicted. In this indictment, he's charged with more than a dozen felonies. Fulton County District Attorney Fani Willis used Georgia's Racketeer Influenced and Corrupt Organizations Act, or RICO, to bind the charges and the defendants together in what she described as a, quote, "criminal enterprise" to illegally return Trump to office. Stephen Gillers is a legal ethicist and professor emeritus at the New York University School of Law, and he joins me now. Good morning.

STEPHEN GILLERS: Good morning.

FADEL: So, professor, this is a pretty sweeping indictment. Trump and his allies, including his attorney Rudy Giuliani and White House chief of staff Mark Meadows, are accused of a range of crimes, from forgery to conspiring to defraud the state. What, in your view, will it take to build a case that proves that these people were all part of a criminal enterprise that was conspiring to defraud the state?

GILLERS: Well, the allegations in the indictment are so sweeping, in addition to the RICO allegation. It practically shouts conspiracy. And the effect of charging conspiracy is dramatic. Everyone's statements and acts within the conspiracy is admissible against everyone else.

FADEL: How difficult will it be to build a case that shows this was, in fact, a conspiracy?

GILLERS: I think there's multiple investigations, multiple grand jury testimony. The allegations in the indictment identify multiple acts done in furtherance of the conspiracy - calls to election officials to change the results, lying, filing false documents. All of that is alleged to have been to further the RICO goal, the racketeering goal. And that's what the state will have to prove if it stays in state court.

FADEL: Now, both of - you say if it stays in state court. Do you see it going above that?

GILLERS: Oh, absolutely. The first thing that may happen in the next 30 days is an effort to remove the case to federal court. There's an advantage to all of the defendants to do so because the jury is picked from a more conservative area than the jury in Fulton County. And that can delay the case for a couple of months. Ultimately, the federal court might send it back to state court. Or the federal court might keep it if the court concludes that the allegations were - the conduct alleged was under color of federal law. The federal court can keep it. And we'll have a real fight over that, I think, in the next two months.

FADEL: But the state RICO Act is broader - right? - than the federal.

GILLERS: State RICO Act is broader. The federal RICO Act is now often used in civil cases but maybe in drug cases and organized crime cases. The state RICO Act is broader. But even if it's removed, all that happens is the forum, the place the trial occurs changes. But the underlying allegations remain. So the state RICO Act would be litigated in federal court.

FADEL: Stephen Gillers, professor emeritus at the New York University School of Law, thank you so much.

GILLERS: OK. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Leila Fadel is a national correspondent for NPR based in Los Angeles, covering issues of culture, diversity, and race.