LAW: RICO Case For Trump May Be A Little Less Unlikely Under New Special Counsel


Last week Attorney General Merritt Garland appointed former career Justice Department prosecutor and former chief prosecutor for the special court in The Hague, Jack Smith, to serve as Special Council to oversee two ongoing criminal investigationsone involving the failed insurrection on January 6th and the other involving stolen classified documents and presidential records found at the former president’s country club and part-time residence, Mar-a-Lago.

As described in court documents filed in the District of Columbia, the first investigation revolves around whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election and/or during the certification of the Electoral College voting process on or about January 6, 2021.

As described in court filings pending before the Southern District of Florida, the second investigation revolves around misappropriated documents and whether former President Donald Trump obstructed justice during the Department of Justice investigation into the matter.

At the public pronouncement about the Special Counsel, AG Garland stated: “Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel. Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters.”

I initially had mixed feelings about the appointment of a Special Counsel as did many other commentators, some reluctantly in favor and others vehemently opposed.

Like many I thought that it was unnecessary for the AG or the DOJ to demonstrate political neutrality and that, by appointing a Special prosecutor, it could not only delay but might, once again, deny any accountability or justice for Donald Trump.

Ultimately I sided with Joyce Vancewho also had reservations about the appointment, because of the failure of Special Counsel Bob Mueller to hold Trump accountable. Among other reasons, Vance makes the critical distinction between the two special counsel assignments.

“Mueller was bound by the Office of Legal Counsel memo that prohibited indicting a sitting president. With Trump out of office, there is no policy like that to prevent Smith from indicting Trump,” Vance wrote.

“His consideration will be whether, based upon admissible evidence, he believes DOJ would likely be able to obtain and sustain a conviction.”

Garland will adhere to the decision reached by Special Counsel Smith.

LAW: RICO Case For Trump May Be A Little Less Unlikely Under New Special Counsel

Gregg Barak

Moreover, as readers of The Crime Report and Salon know, for the better part of 2022 I have been making the argument for why Trump should be indicted under the Racketeer Influenced and Corrupt Organization Act (RICO), both for the crimes of racketeering and for operating a criminal enterprise.

While I have never believed that the DOJ will ultimately use RICO against Donald Trump, the Trump Organization, his campaign entities, attorneys, associates, and others who may have been involved in January 6, Mar-a-Lago, and the greater efforts to overturn the 2020 presidential election results, I do believe that Special Counsel Jack Smith’s resignation as the chief prosecutor for the special court in The Hague in order to take on and oversee the two ongoing DOJ investigations makes the possibility of a RICO case a little less unlikely.

Gregg BarakPh.D. is an emeritus Professor of Criminology and Criminal Justice at Eastern Michigan University, co-founding editor of the Journal of White Collar and Corporate Crimeand is currently writing a sequel to the recently published Criminology on Trump called, Criminalizing a Former President: The Case of Donald Trump and the Missing Struggle for a New Democracy.

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