Fani Willis, the district attorney for Fulton County, uses Georgia’s “Rico” law a lot, even though some say she has used it in ways that go beyond what the law was meant to do.
Photograph by John Bazemore / AP
Photograph by John Bazemore / APFani Willis was the lead prosecutor in the longest criminal trial ever held in Georgia in 2013. A few years ago, it was said that teachers and school administrators in Atlanta public schools had cheated on standardized tests. A special report that Georgia’s governor asked for found that 178 teachers, including more than 30 principals and a superintendent, had been involved in “organized and systemic misconduct” since at least 2001. Investigators found that teachers were giving children answers and changing their wrong answers. Administrators were giving money to those who helped cheat and punishing those who did not. One teacher who changed test answers told investigators, “APS is run like the Mob.”
The Fulton County district attorney’s office agreed. The county charged 35 teachers and administrators with conspiring to break the Racketeer Influenced and Corrupt Organizations Act, or RICO, a law traditionally used to go after Mafia members. In her opening statement, Willis talked about how these charges could be used in the case. She seemed to be referring to a scene from “Goodfellas” when she said, “Under RICO, you don’t have to have a formal dinner meeting where you sit down and eat spaghetti.” “But you all have to do the same thing with the same goal. Everyone has to work toward the same goal. In this case, the goal was to raise test scores illegally.”
Most of the teachers made deals with the police. Eleven of the 12 who went to court were found guilty of participating in Rico. Six of these people are still trying to change their sentences. Bruce Harvey, a well-known criminal defense lawyer in Atlanta, defended one of those charged, a principal who was accused of changing test answers and who got two years of probation in the end. (A witness said the principal made the changes while wearing gloves so she wouldn’t leave her fingerprints.) Harvey’s client said that she had changed her answers “solely to make [district-testing] targets,” which were used to decide whether schools would be closed. Harvey didn’t think it was right to use a Rico law to threaten teachers with jail time if they tried to keep local schools from closing. At the time, he said, “This is more mouse steering than racketeering.”
In the past, a racket was an illegal way to make money. The federal RICO statute, passed in 1970, lets prosecutors threaten people with harsh punishments even if their crimes were not very bad but were part of a larger racketeering scheme (such as the Mafia). Low-level people may agree to plea deals when they are afraid of these punishments. This gives prosecutors evidence and testimony they can use against those at the top of the hierarchy. Because this kind of evidence is useful, RICO cases appeal to prosecutors, even though trying multiple defendants on multiple charges is hard. Harvey told me, “You could charge the same acts separately, but the benefits of charging these types of Rico cases outweigh the difficulties and messes of having twenty people on trial simultaneously.”
Georgia’s RICO law was made in 1980 but wasn’t meant to go after the Mafia. Instead, it was meant to go after Black street gangs and “nontraditional conspiracies,” as a former trial lawyer and senior fellow at the Brookings Institution told me Norman Eisen. (The Georgia Assembly said that it was important to deal with “the growing sophistication of different criminal elements.”)
But Georgia law didn’t require prosecutors to show that there was a larger criminal enterprise going on. They only had to show that some illegal acts were done to further a single criminal goal. Eisen said, “Georgia prosecutors are more likely to use their criminal rico provision to handle big cases because of how broad it is.” He also said it is one of the best places in the country to use such a plan. 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 catch one person in the whirlpool, everyone else gets sucked in with them.”
Since Willis became the district attorney for Fulton County in 2021, it seems like that whirlpool has gotten bigger and stronger. “I have more RICO indictments right now than were probably done out of this office in the last ten years,” she told the Washington Post in January. Last year, she said that 56 people who were part of an organization called Y.S.L., which Willis calls a gang, had been charged under the RICO law. Among the people charged is Atlanta rapper Jeffery Williams, who is known as Young Thug. Williams has said that he isn’t guilty.
Harvey, who represents one of the Y.S.L. defendants, told me, “She’s way more aggressive about it than her predecessors.” Some people think that the Y.S.L. case, like the cheating scandal case, goes beyond what the Rico statute was meant to do. Some people who are part of Y.S.L. are accused of serious crimes, like murder. Others are accused of things that aren’t nearly as bad. Under Rico, they are all responsible for even the worst crimes. Topalli, a law professor, said there might be a fairly strong case “at the top,” but he doubts putting people “down the Y.S.L. ladder” in jail. He said, “It’s one thing to charge someone next to the leader with murder, even if they weren’t in the room, but it’s another thing to charge someone who ran drugs for them months ago.” How much do foot soldiers know about what’s going on above them, and how much are they to blame for what’s going on?
Willis seems ready to use her favorite tool as a prosecutor, a “Swiss Army knife,” in the most high-profile case of her career: bringing charges against Donald Trump related to the 2020 election. Willis started her investigation soon after Trump called Georgia’s secretary of state, Brad Raffensperger, on January 2, 2021, and said, “I just want to find 11,780 votes,” which would have changed Joe Biden’s win in the state. A year ago, Willis called together a special grand jury to get more Trump associates to testify. For months, people have thought that she will eventually bring RICO charges against the former President and his alleged helpers for trying to change the election results. At the end of July, the Guardian said Willis had found the proof she needed to do this. (Willis’s office didn’t want to say anything.)
Eisen, a co-counsel for the House Judiciary Committee during Trump’s first trial for impeachment, thinks that Georgia’s RICO statute could be used in this case. “It’s almost like Trump and his alleged accomplices used Georgia’s Rico statute as a to-do list for election interference in the state after the 2020 election,” he told me. He said that many people, like Trump’s former chief of staff, Mark Meadows, and the lawyers Rudy Giuliani, John Eastman, and Kenneth Chesebro, seemed to be helping. Eisen said that Trump turned a political campaign into a criminal group. Topalli is not sure about it. “They are breaking new ground here with this use of Rico,” he told me. Not only would one of the targets be a former President, but Rico prosecutions usually focus on financial schemes, while this one would be about trying to keep political power by messing with elections. That, too, would be a big deal.
Harvey said that Georgia’s RICO law would let Willis’s office “catch all the people they think could be pushed from the bottom up.” Harvey still thinks that the Trump case is “full of public facts” that show crimes were committed, but he doesn’t think this is a real racketeering case. “Rico is being stretched, as usual,” he said, almost sad. Harvey is 73 years old. He has a braided ponytail that goes down to his waist, and he parks his motorcycle on the first floor of his office. He has worked on some of the biggest criminal cases in Georgia in recent years. Many of these cases involved people who most people hated. But he told me he could never defend Trump because he thinks he is more dangerous than violent criminals. He said, “Trump kills the truth, which is much worse than killing one person.” He also said that if he took Trump as a client, his wonderful wife of fifty years might castrate him. (Drew Findling, another well-known Atlanta defense lawyer, is in charge of Trump’s defense in the Fulton County case. Like Harvey, Findling has represented several hip-hop artists. Findling is also not a fan of Trump, but he is taking on the case because he wants to honor John Adams, who defended the Redcoats after the Boston Massacre. Findling didn’t want to talk about this piece.)
No matter what charges Willis brings, Topalli thinks that Trump’s case in his state could be the hardest one he faces. He said, “Georgia is the most dangerous case for Trump because of the other cases already going on.” He brought up the Stormy Daniels hush money case in New York and the two cases brought by the Department of Justice, one about fake voters and the other about classified documents. “Every trial that has happened or is happening gives evidence, data, and a plan for the next one,” Topalli said. “So Fani Willis is doing well here.”
Eisen, who co-wrote an analysis of the “reported facts and applicable law” in the Fulton County investigation, also thinks Willis has a strong hand. But he warned against thinking too little of the defense. He said that if Willis charges Trump with racketeering related to the election, Findling and his defense team will likely take at least three different paths. Findling could say that Trump has immunity because he was looking into election fraud claims as part of his job as President. He could say that Trump’s ideas came from his relying on, or too much on, the advice of his lawyers. He could also say that Trump thought he had won the election.
Eisen doesn’t agree with any of these explanations. Still, he said, “Having tried a case against Trump myself, I know there’s no such thing as a sure thing when you’re suing a current or former President, especially one named Trump. No matter what else you say about him, he is a fighter, and he will fight hard and often.