The early consensus about Donald Trump’s indictment for election-related crimes in Georgia is that he’s maybe finally kind of screwed. Before Monday’s announcement, there was plenty to suggest the former president really was above the law. Alvin Bragg’s business-records case in Manhattan was seen as weak, and the Justice Department’s classified-documents case in Florida is being presided over by a judge who has historically been friendly to Trump. Special prosecutor Jack Smith’s January 6 prosecution seems more open and shut, though there is the question of proving Trump’s corrupt intent.
Monday night felt different. When Fulton County D.A. Fani Willis made her charges public, a wave of plaudits greeted her personally and the merits of her case more generally. A New York Times op-ed praised her “ingenious” legal strategy, while even the conservative New York Post argued that a conviction from Willis “would stick.” The Los Angeles Times likened the Georgia prosecutor to a “blunderbuss,” expressing awe at the “panoramic” scope of her case. Breadth was a common theme: The Atlantic’s headline described Willis’s indictment, which charges 18 defendants with 41 criminal counts, as representing “the whole picture.”
How is it possible that a county prosecutor felt empowered to bring charges against a former president that dwarf even those deemed provable by the Department of Justice? Pundits have described Smith’s prosecutions as “laser-focused” and “surgical” where Willis’s is rangy and all-encompassing. One explanation for the difference lies in the tools at Willis’s disposal: Georgia’s anti-racketeering laws and her sometimes troubling enthusiasm for wielding them. The coming months seem destined to enshrine the Fulton County prosecutor as a heroine of the liberal mainstream for taking on Trump — with potentially dire consequences for local criminal justice.
Racketeering Influenced and Corrupt Organization (RICO) laws enable prosecutors who like to fish with a wide net, allowing them to group often tenuously related parties together in vast criminal conspiracies. In a justice system that prides itself on narrowly tailored outcomes, where supposedly only the deserving get punished and the accused face specific charges for crimes they are personally alleged to have committed, the use of RICO might seem undesirable, at least on paper. In practice, it’s a prosecutor’s dream, mostly because it transforms hard cases into easier ones — if you can’t nail someone for a specific crime, you can compel them to cooperate by alleging they’d conspired with someone more obviously guilty and threatening them with the harsher sentencing that RICO laws make possible.
The typical victims of this approach are residents of public housing. A widely touted raid on a Bronx housing project in 2016 purportedly ensnared 78 gang members and affiliates, only for officials to concede that just half were being accused of gang activity or violent crimes — the rest were in trouble simply because of where they lived.
Willis is known for testing the limits of RICO’s applicability. In 2014, she led the racketeering prosecution of several Atlanta public-school teachers and administrators for changing answers on their students’ standardized tests. She won convictions for 11, landing all but one in either jail or prison under laws originally meant to ensnare mafia bosses. By way of explanation, Willis has said she favors RICO because it allows “law enforcement to tell the whole story.”
A fuller story would account for what might happen if she doesn’t deliver exactly what her cheerleaders crave in the Trump case. There are already rumblings about the potentially negative implications of local prosecutors like Willis taking on presidents. ”What’s to stop conservative prosecutors in small counties from bringing flimsy charges against Joe Biden?” writes David A. Graham of The Atlantic. Yet far more disconcerting is the liberal triumphalism that tends to greet prosecutors who take on the reviled former president, and the push for more zealous prosecution it tends to provoke. The disappointment that many liberals felt after Robert Mueller’s investigation did not lead to Trump’s incarceration, as many had openly hoped, has not stopped them from treating Jack Smith to similar hero worship — the same meme economy that produced Game of Thrones–themed “Mueller is coming” posts has now given us “Jack Smith: The Last Witch Hunter” and “#TrumpForPrison2024.”
Meanwhile, three years since America was supposed to have “reckoned” with the unconscionable scale of our criminal-justice system, Republicans and Democrats alike have mostly reverted to the mean, pushing for more cops and tougher crime-fighting methods. The results are evident in the flood of funding that local departments received during the height of the pandemic. Nowhere has this been more apparent than in Atlanta, part of the jurisdiction that Willis presides over, and which is currently embroiled in clashes between city officials and local protesters over the proposed construction of a new law-enforcement training facility. The city’s current regime — headlined by Willis and Atlanta mayor Andre Dickens — prides itself on governing to the right of its predecessors.
In the politics of crime, America’s default response to failure is volume — more cops, more prosecution, more punishment. One could imagine a world where such resources were devoted to people like Trump and his cronies, or white-collar criminal syndicates, or actual organized crime. And Fani Willis’s indictment may indeed have the best shot of securing legal consequences for Trump world, an appropriate fate for people who attempted a coup. But it comes at a cost.
The immediate concern is its continued legitimization of RICO laws, which are overwhelmingly used to punish poor Black and brown people for their associations, not would-be despots like the former president. The longer-term danger is that Willis would not achieve a satisfying outcome — maybe Trump only gets found guilty on a few minor counts, for example — and her failure is interpreted as a sign of RICO’s inadequacy.
We’d be naïve to assume this would mean a comprehensive rejection of such expansive anti-racketeering laws. In all likelihood, it would be taken as grounds for expanding RICO’s scope. Willis has already wowed the liberal punditocracy with the scale of her ambition. Coming up short could yield an even greater enthusiasm for expanding, rather than curtailing, what is already the most draconian criminal-justice system in the world.
