In 2013, Fani Willis served as the lead prosecutor in what is still the longest criminal trial ever held in Georgia. Teachers and administrators in Atlanta public schools had been accused, a few years before, of cheating on standardized tests. A special report commissioned by Georgia’s governor concluded that a hundred and seventy-eight educators—including more than three dozen principals and a superintendent—had participated in “organized and systemic misconduct” since at least 2001. Teachers were giving children answers and altering incorrect responses, investigators reported; administrators were offering financial incentives to those who abetted the cheating and punishing those who did not. One teacher, who admitted to changing test answers, told investigators, “APS is run like the Mob.”
The Fulton County district attorney’s office agreed: the county indicted thirty-five educators and administrators for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, or RICO—a statute that, historically, is associated with the prosecution of Mafia figures. Willis, in her opening statement, explained how such charges could be applied in the case. “You don’t, under RICO, have to have a formal, sit-down dinner meeting where you eat spaghetti,” she said, seemingly invoking a scene from “Goodfellas.” “But what you do have to do is all be doing the same thing for the same purpose. You all have to be working towards that same goal. In this case, the goal—inflate test scores illegally.”
Most of the educators took plea deals. A dozen went to trial, and eleven of them were found guilty of RICO participation. (Six of those people are still appealing their convictions.) Bruce Harvey, a well-known Atlanta criminal-defense attorney, represented one of those who was charged—a principal accused of changing test answers, who ultimately received two years of probation. (A witness claimed that the principal made the alterations while wearing gloves, to avoid leaving fingerprints.) Harvey’s client said that she had changed answers “solely for the purpose of making [district-testing] targets,” targets that determined whether or not schools would be shuttered. Harvey disputed the propriety of using a RICO law to threaten prison time for teachers trying to make sure that local schools didn’t close. “This is more mouseketeering than racketeering,” he said at the time.
Traditionally, a racket is an illegal money-making scheme. The federal RICO statute, which was introduced in 1970, allows prosecutors to threaten serious penalties for people whose own criminal violations may have been relatively minor but who were part of a larger racketeering enterprise (such as the Mafia). The threat of those penalties can prompt low-level figures to make plea deals, helping prosecutors generate evidence and testimony to use against those at the top of the hierarchy. The usefulness of such evidence makes RICO cases attractive to prosecutors—despite the difficulty of trying multiple defendants with multiple charges all at once. “You could charge the same acts individually,” Harvey told me, “but the evidentiary benefits to charging these kinds of RICO cases outweigh the complexity and clusterfuckism of having twenty people on trial at the same time.”
Georgia created its RICO statute in 1980, less to target the Mafia than to go after Black street gangs and “nontraditional conspiracies,” as Norman Eisen, a former trial lawyer and a senior fellow at the Brookings Institution, put it to me. (The Georgia Assembly cited the need to address “the increasing sophistication of various criminal elements.”)
But the Georgia law didn’t require prosecutors to demonstrate an underlying criminal enterprise, only the commission of a range of illegal acts that furthered a single criminal goal. “Because of its breadth,” Eisen said, “Georgia prosecutors are more prone to utilize their criminal RICO provision as a vehicle for major cases.” It’s one of the best places in the country for deploying such a provision, he added. Volkan Topalli, a professor of criminology at Georgia State, told me that the state’s generous statute helps create a “whirlpool effect” in the prosecution of criminal conspiracies: “If you capture one person in the whirlpool, everyone else gets sucked in along with them.”
Since Willis became Fulton County’s district attorney, in 2021, that whirlpool seems to have grown larger and stronger. “I have right now more RICO indictments in the last eighteen months, twenty months, than were probably done in the last ten years out of this office,” she told the Washington Post in January. Last year, she announced a fifty-six-count RICO indictment of more than two dozen people associated with an organization called Y.S.L., which Willis describes as a gang. Those charged include the Atlanta rapper Jeffery Williams, better known as Young Thug. (Williams has pleaded not guilty.)
“She’s being way more aggressive with it than her predecessors,” Harvey, who represents one of the Y.S.L. defendants, told me. As with the cheating-scandal prosecution, some observers believe that the Y.S.L. case stretches the RICO statute past its intended limits. Some of the people associated with Y.S.L. are accused of grave crimes, including murder. Others are accused of far less serious acts. Under RICO, all of them are essentially held responsible for even the most severe crimes. Topalli, the law professor, said that there may be a relatively solid case “at the top,” but he questions the prosecution of people further “down the Y.S.L. ladder.” As he put it, “It’s one thing to charge an individual next to the leader with homicide, even if they weren’t in the room, but it’s another to charge someone who ran some dope for them months ago.” How much, he asks, do foot soldiers really know about what’s happening above them—and how responsible are they for it?
Willis now appears set to use her favorite prosecutorial Swiss Army knife in the most high-profile case of her career: the prosecution of Donald Trump on charges related to the 2020 election. Willis began her investigation not long after Trump called Georgia’s secretary of state, Brad Raffensperger, on January 2, 2021, and said, “I just want to find 11,780 votes,” a number that would have overturned Joe Biden’s victory in the state. More than a year ago, Willis convened a special-purpose grand jury to compel testimony from additional Trump associates, and observers have speculated for months that she will ultimately bring RICO charges against the former President and his alleged accomplices for attempting to overturn the election. In late July, the Guardian reported that Willis had obtained the evidence she needed to do so. (Willis’s office declined to comment.)
Eisen, who was a co-counsel for the House Judiciary Committee in Trump’s first impeachment trial, believes that this case would likely be an appropriate use of Georgia’s RICO statute. “It’s almost as if Trump and his alleged co-conspirators utilized Georgia’s RICO statute as a punch list for election interference in the state after the 2020 election,” he told me. He noted the apparent assistance of a cast of characters, including Trump’s former chief of staff Mark Meadows, and the attorneys Rudy Giuliani, John Eastman, and Kenneth Chesebro. “Trump converted a political campaign into a criminal organization,” Eisen said. Topalli isn’t so sure. “It’s new ground that they’re treading here with this application of RICO,” he told me. It’s not only that one of the targets would be a former President; it’s also that RICO prosecutions generally target financial schemes, while this one would target an attempt to maintain political power through election interference. That would be groundbreaking, too.
Georgia’s RICO statute would allow Willis’s office “to rope in all the people that they think could be pressured from the bottom up,” Harvey noted. Still, while Harvey believes that the Trump case is “full of public facts” that point to crimes committed, he does not see this as a true instance of racketeering. “As usual, RICO is being stretched,” he said, sounding almost regretful. Harvey is seventy-three; he wears a braided ponytail that approaches his waist and parks a motorcycle on the first floor of his office. He has worked some of the biggest criminal cases in recent Georgia history, many of them involving widely despised clients. But he told me that he could never defend Trump, because he sees him as more dangerous than even violent offenders. “Trump kills the truth, and that’s much more dangerous than killing one person,” he told me. He added that his wonderful wife of fifty years might castrate him if he took Trump on as a client. (Trump’s defense in the Fulton County case is led by Drew Findling, another prominent Atlanta defense attorney, who, like Harvey, has represented several hip-hop artists. Findling is no fan of Trump, either, but he has invoked the legacy of John Adams—who defended the Redcoats following the Boston Massacre—as an explanation for taking on the case. Findling declined to comment for this piece.)
Whatever charges Willis pursues, Topalli believes that the case set to take place in his state may be the toughest one that Trump faces. “Georgia is the most dangerous prosecution for Trump,” he told me, “due to the preëxisting prosecutions taking place.” He pointed to the Stormy Daniels hush-money case, in New York, and to the Department of Justice’s two cases—one concerning fake electors and another related to classified documents. “Every previous and ongoing prosecution provides evidence and data and strategy to the ones that follow,” Topalli said. “So Fani Willis is in a good position here.”
Eisen, who has co-authored an analysis of the “reported facts and applicable law” in the Fulton County investigation, also believes that Willis has a strong hand to play. But he cautioned against underestimating the defense. If Willis charges Trump with election-related racketeering, he said, there are at least three likely approaches for Findling and his defense team. Findling could argue that Trump was looking into allegations of election fraud as part of his Presidential duties, thereby conveying him immunity. He could argue that Trump’s opinions stemmed from his reliance, or overreliance, on the counsel of his lawyers. And he could argue that Trump genuinely believed that he had won the election.
Eisen doesn’t buy any one of these defenses. Still, he said, “having tried a case against Trump myself, I know that there’s no such thing as a slam dunk when you’re litigating against a current or former President—and particularly one named Trump. Whatever else you may say about him, he’s a fighter, and he’s going to fight furiously and constantly.” ♦