There is a certain irony to the indictment of Rudy Giuliani under RICO.
Donald Trump’s disgraced lawyer made a name for himself prosecuting violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act in the 1980s when he was the U.S. attorney in Manhattan. Now he finds himself on the other side of the “v” in a RICO case as a defendant along with 18 other people in Georgia, including the former president. Fulton County District Attorney Fani Willis’ nearly 100-page indictment accuses Giuliani of being part of a criminal enterprise that engaged in a pattern of racketeering activities for the purpose of changing the outcome of the election in favor of Trump.
Now he finds himself on the other side of the “v” in a RICO case as a defendant along with 18 other people in Georgia, including the former president.
Among other things, Giuliani is accused of soliciting public officials to violate their oaths of office, conspiring to commit forgery by submitting a false slate of electors and making false statements during committee and subcommittee meetings of Georgia’s Legislature. He is charged with making baseless factual assertions, such as the claim that 96,600 fraudulent mail-in ballots were counted. The indictment also alleges that he falsely claimed election workers Shaye Moss and her mother, Ruby Freeman, were “stealing votes” at State Farm Arena in Atlanta during the vote count, stating that 12,000 to 24,000 ballots were illegally counted.
Giuliani denied the charges in a statement, calling them “an affront to American Democracy” that “does permanent, irrevocable harm to our justice system. It’s just the next chapter in a book of lies with the purpose of framing President Donald Trump and anyone willing to take on the ruling regime.”
During the Reagan administration, Giuliani famously used RICO to take down notorious Mafia families. Before running for mayor of New York, he bragged about his pioneering use of RICO as a prosecutor, first as a top Justice Department official in Washington and then as U.S. attorney for the Southern District of New York.
“Using [RICO] against the [organized crime] commission, that was an idea that no one had until I developed it and went down to Washington and started talking about it,” Giuliani said in 1989. “And I came to the [U.S. attorney’s] office with it.’” Of course, the statute was enacted in 1970 and signed into law by President Richard Nixon for the very purpose of targeting organized crime. Nonetheless, it was Giuliani who used the statute aggressively against the mob in New York, and it was Giuliani who extended its use to go after white-collar crime defendants, such as Ivan Boesky and Michael Milken.
After his indictment this week, Giuliani blasted Willis for using the Georgia RICO statute in his case, calling it “a ridiculous application of the racketeering statute. There’s probably no one that knows it better than I do.” Although he acknowledged his use of the statute in white-collar crime cases, he argued that the statute should be used only in “major cases.”
Most would agree that an alleged effort to overturn a presidential election is a major case. As a former prosecutor, I see a RICO charge as appropriate for any type of significant organized criminal activity that meets the language of the statute.
As a former prosecutor, I see RICO as an appropriate charge for any type of significant organized criminal activity that meets the language of the statute. The word “racketeering” simply means corrupt business practice. It derives from the word “racket,” after the loud and spirited political fundraising dinners of the 19th century Tammany Hall political machine, which required anyone seeking business in New York to pay off politicians. The criminal acts that constitute racketeering today include nonviolent crimes such as fraud, bribery and money laundering. When I served as U.S. attorney in Detroit, my office used RICO to prosecute street gangs, as well as corrupt public officials and their criminal associates. The advantages of RICO are that it allows prosecutors to go after both the underlings who engage in criminal conduct directly and the bosses at the top who call the shots and reap the benefits of illegal activity while keeping their hands clean. RICO also permits a prosecutor to show a jury the entire scope of criminal activity by bringing into one case conduct that might otherwise appear to constitute separate conspiracies and tying them together when they have a common goal. And it allows prosecutors to reach outside their own jurisdictions to bring in acts that occurred in other places as long as they were part of the same patterns of racketeering activity. In Willis’ case, RICO allows her to include alleged computer intrusions into voting equipment in Coffee County. Some critics argue that RICO gives prosecutors too much power by enabling them to cast wide nets. There is no doubt that RICO is a potent weapon. That doesn’t make it an inappropriate one. Now Giuliani will experience that potency from a very different vantage point. Of course, like all defendants, he is presumed innocent and is entitled to due process of law. There may be a temptation to gloat over the karma of Giuliani’s apparent comeuppance, but as a former prosecutor, I find it a sad day when hubris appears to overcome a lawyer’s sense of duty to the rule of law.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
