The indictment in Georgia against former President Donald Trump relies heavily on the state's Racketeer Influenced and Corrupt Organization law — a statute generally used to prosecute mob bosses and gang members.
Fulton County District Attorney Fani Willis centers her case on the idea that Trump and 18 others worked together "knowingly and willfully" as part of a broad conspiracy to attempt to overturn the 2020 presidential election results.
As part of this conspiracy, prosecutors claim, the 19 defendants committed a total of more than 160 individual "overt acts" to further their plan. Those actions include tweets and speeches made by Trump and others, phone calls and meetings.
At least one conservative outlet has also criticized the indictment as "dumb."
Trump has already claimed these charges are part of an effort to criminalize political speech and a violation of his First Amendment rights — a regular political rallying cry for the former president.
The indictment identifies much of the conduct as constituting "overt acts in furtherance of the conspiracy," which means they don't have to be crimes on their own — and are not being described as such in the indictment, said Morgan Cloud, the Charles Howard Candler professor of law at Emory University.
Overt acts "can be anything that is done that's for the purpose of advancing the goals of the conspiracy," Cloud said.
It's an important distinction for the general public to understand in this case, Cloud noted.
Georgia's RICO law, explained
Willis has used the state's RICO law in cases involving street gangs to public school teachers cheating on standardized tests in Georgia.
"RICO is a tool that allows a prosecutor's office and law enforcement to tell the whole story. We use it as a tool so they can have all the information they need to make a wise decision," Willis has said. "The reason that I am a fan of RICO is I think jurors are very, very intelligent."
The state law is broader than the federal statute passed in 1970 and used for decades to target mob-related crimes.
"The RICO statute in general will require that the prosecution prove beyond a reasonable doubt that there's an ongoing pattern of racketeering activity," Cloud said. " 'Pattern' means they have to be conducted not as a single event, but it has to be an ongoing pattern or series of multiple activities that are related."
In the case of the Georgia indictment, Cloud said, the activities are "related by a common plan and purpose: To overturn the results of the 2020 presidential election."
Racketeering activities are specific crimes called "predicate acts" under the statute. Unlike in the federal statute, Georgia's RICO law establishes that false statements or writings is a predicate act for racketeering.
"So Mr. Trump's phone calls to officials in Georgia, for example, would not be predicate crimes under the federal statute" but could be under Georgia's rules, Cloud said.
How is Trump's speech considered an 'overt act'?
Not all of the acts covered in the indictment happened in Georgia.
"Many occurred in Georgia and some occurred in other jurisdictions and are included because the grand jury believes they were part of the illegal effort to overturn the result of Georgia's 2020 presidential election," Willis said.
For example, Trump and his allies allegedly made false statements to lawmakers in Pennsylvania claiming fraud in the state's election, according to the indictment. Georgia law allows this to be considered an overt act in furtherance of the conspiracy, but because it happened outside the state it is not additionally considered a racketeering crime, Cloud noted.
If the alleged false statements were made in Georgia, on the other hand, the actions could be considered both "an act of racketeering activity under the relevant Georgia statute" as well as an act to further the conspiracy to overturn the 2020 election results, Cloud said.
The acts cited in the indictment range from a speech Trump gave a day after the 2020 election falsely saying he won the election, to a call Rudy Giuliani made alleging fraud in Fulton County, to tweets Trump made on several occasions falsely alleging fraud and ballot stuffing and attacking public figures in the state.
Cloud said Trump and his lawyers will likely allege in court these are examples of protected speech.
"In theory, that is [true]," Cloud said, "but words can lose First Amendment protection if they are carried out as part or used as part of criminal activity."
That is the case Willis is trying to make.
