Georgia defendants, prosecutors spar over validity of RICO charge in 2020 election case

Fulton County prosecutors and attorneys for two defendants in the sweeping Georgia election interference case involving former President Trump on Wednesday sparred over the validity of a racketeering charge that all 19 alleged co-conspirators face.

Defense attorneys for Kenneth Chesebro and Sidney Powell — two Trump-aligned lawyers — argued before a Georgia judge Wednesday that the state Racketeer Influenced and Corrupt Organizations (RICO) Act counts the defendants face were wrongly charged.

Chesebro attorney Manny Arora said that Georgia’s RICO statute requires two elements to be satisfied in order for a charge to stand: financial gain, or physical threat or harm. 

The case, which charges Trump and 18 others with entering a criminal enterprise bent on keeping the former president in power after he lost the 2020 election, does not meet those standards, he argued. 

“We are not trying to narrow the scope of the RICO statute, and we’re not saying it’s unconstitutional; we’re saying it’s unconstitutional as applied, because they’re not following the rules,” Arora said of Fulton County prosecutors. 

“They’re coming up with novel theories to indict people,” he added.

Prosecutors with the Fulton County district attorney’s office refuted Arora’s claims, asserting that a previous legislative amendment to the state’s RICO statute was enacted to counter arguments like those made by the defense.

“The idea that this was intended to limit the scope of the statute to organized crime is exactly the opposite,” said special prosecutor John Floyd, a state RICO expert.

The statute aside, Floyd firmly pushed back against the defense’s claim that no financial gain or physical harm was sought by the defendants.

A would-be second Trump presidency alone qualifies as financial gain, Floyd argued, pointing to the presidential salary, retirement benefits, transportation via the world’s “most prestigious” aircraft and housing in the world’s “most prestigious” home for four years. 

Floyd also cited threats faced by Fulton County election worker Ruby Freeman as evidence of physical threat or injury, noting that members of the alleged enterprise — namely defendant Trevian Kutti — attempted to convince Freeman she was in danger because of her role in purported election fraud.

“She was scared to death — absolutely scared to death,” Floyd said of Freeman.

Arora and an attorney for Powell objected to those assertions in their arguments. Under the government’s theory, there could be “thousands — millions — of co-conspirators” in the case, Arora argued, including those who protested against Trump’s 2020 election loss. 

Judge Scott McAfee questioned prosecutors over Arora’s claim that “millions” could be prosecuted on RICO charges without limits of financial gain or physical threat or harm.

“It’s a floodgates argument. A ‘sky is falling’ argument. And the idea is that anybody who supported Donald Trump is subject to indictment under this case — that’s absurd. That’s absolutely ridiculous,” Floyd replied. “The state has never said it. The indictment doesn’t say it. We’d never do that.”

McAfee’s future decision on the motion, which will determine whether the RICO charge stands, could significantly alter the course of the case. Georgia’s broad RICO Act allows prosecutors to weave the seemingly disparate defendants and their alleged actions into one enterprise with a common goal: returning Trump to the White House. Fulton County District Attorney Fani Willis’s (D) case presents a multitude of schemes prosecutors say were meant to undermine the outcome of Georgia’s election. 

Chesebro and Powell are set to face trial beginning Oct. 23, after the pair invoked their right to a speedy trial, significantly expediting their cases. Both defendants have pleaded not guilty.

Trump and the other co-defendants who waived their speedy trial right will go to trial at a later date.