TRUMP’S PICTURE POPS UP WHEN YOU GOOGLE “RICO,” TOO*

Untitled, Acrylic on Panel, 12" x 16", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

“Mounting legal threats surround Trump as nearly every organization he has led is under investigation. The cascade of inquiries threaten to dominate his third year in the White House.”

https://www.washingtonpost.com/politics/mounting-legal-threats-surround-trump-as-nearly-every-organization-he-has-led-is-under-investigation/2018/12/15/4cfb4482-ffbb-11e8-862a-b6a6f3ce8199_story.html

Is the Office of the President of the United States Part of or Itself a Racketeering Enterprise Within the Meaning of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–1968?

Is Mr. Trump a Racketeering Enterprise?

His Campaign?

His Transition Team?

His Inaugural Committee?

Any or All Iterations of the Trump Organization?

His Charity?

In 1970 Congress found that

“(1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud and corruption; (2) organized crime derives a major portion of its power through money obtained from . . . illegal endeavors [and] forms of social exploitation; (3) the money and power are increasingly used to infiltrate and corrupt legitimate business . . . and to subvert and corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten domestic security, and undermine the general welfare of the Nation and its citizens . . . .”

Pub. L. No. 91–452, Section 1.

Congress enacted RICO in 1970 as a powerful tool to combat organized crime that had infiltrated and was exercising corrupt influence over legitimate businesses and organizations including government throughout the United States.

Simply stated (nothing is simple about RICO), RICO renders illegal:

• “a pattern of racketeering activity”;

• “a pattern of racketeering activity” is defined to include a combination of two or more violations of predicate criminal offenses (identified below);

• predicate offenses must be performed by persons who have a specified relationship to an “enterprise”;

• “enterprise” is very loosely defined to include individuals, legal entities (corporations, limited liability companies, partnerships) and groups of individuals associated in fact even though they are not members of a legal entity. Legitimate and illegitimate associations are encompassed within “enterprise.” Government agencies also qualify under certain circumstances.

RICO recognizes three different criminal violations:

  1. investing the proceeds derived from a “pattern of racketeering activity” in an “enterprise” (e.g., using proceeds from specified illegal activity to purchase a legitimate business);
  2. acquiring or maintaining an interest in an “enterprise” through a “pattern of unlawful activity” (e.g., taking over a legitimate business through extortion); and
  3. conducting the affairs of an “enterprise” through a “pattern of unlawful activity” (e.g., conducting predicate offenses by using the facilities of the “enterprise”).

RICO also makes it a crime to conspire to commit any of the foregoing categories of crimes.

Prosecution under RICO does not require proof that either the defendant or the enterprise was connected to organized crime. Such connection is not an element of the offense.

The criminal and civil penalties, including incarceration and forfeiture, are Draconian. They include up to life in prison and forfeiture of defendant’s interest in the enterprise connected to the offense and interests and proceeds derived through the “pattern of unlawful activity.”

Civil RICO

The criminal RICO statute also provides private rights of civil actions “by [a]ny person injured in his business or property by reason of a violation of” one or more of the three categories of crimes identified above. If the injured person prevails in the RICO lawsuit, s/he “shall recover threefold the damages [s/]he sustains and the cost of the suit, including a reasonable attorney’s fee . . . .”

Presumably, the Department of Justice has no authority to create some policy against suing the president of the United States for civil RICO violations. The Supreme Court has acknowledge a sitting president can be required to answer to civil litigation.

Predicate Offenses

A RICO “pattern of racketeering activity” is made up of at least two acts of racketeering activity, or predicate offenses. The RICO statute includes among the long list the following predicate offenses which seem most relevant to this discussion, considering the behavior and types of conduct in which Mr. Trump and those with whom he surrounds himself in business, politics and government engage:

• Bribery of public officials and witnesses, 18 U.S.C. § 201

• Mail and wire fraud, 18 U.S.C. § 1341. These statutes can be used to bootstrap predicate offenses that are not listed under RICO. For example, tax crimes under the IRS Code [e.g., tax fraud] are not included as RICO predicate offenses. Most tax crimes, however, utilize the mail or electronic means for communication and filing. If those tax crimes involve alleged fraud and use of the mail or electronic means to commit that fraud, the mail and/or wire fraud constitutes a bootstrap to expand the list of predicate offenses

• Financial institution fraud, 18 U.S.C. § 1344 (Counts 24–31 in the Manafort/Gates Indictment in the Eastern District of Virginia

• Certain securities and commodities fraud, 18 U.S.C. § 1348

• Fraud in foreign labor contracting, 18 U.S.C. § 1351

• Procuring citizenship or nationalization unlawfully, 18 U.S.C. § 1425–1427

• Obstruction of justice, 18 U.S.C. § 1503

• Obstruction of criminal investigations, 18 U.S.C. § 1510

• Obstruction of state or local law enforcement, 18 U.S.C. § 1511

• Tampering with witness, victim or an informant, 18 U.S.C. § 1512

• Retaliation against a witness, victim or an informant, 18 U.S.C. § 1513

• Fraud and misuse of visas, permits and other documents, 18 U.S.C. § 1546

• Interstate or foreign travel or use of such facilities or the mail in aid of unlawful activity, 18 U.S.C. § 1952 (Travel Act) (invoking the Foreign Corrupt Practices Act which prohibits bribing or offering bribes to foreign officials in order to conduct or maintain business)

• Laundering of monetary instruments, 18 U.S.C. § 1956

• Engaging in monetary transactions in property derived from specified unlawful activity, 18 U.S.C. § 1957

• Any offense involving fraud under 11 U.S.C. (bankruptcy)

• Any indictable act under the Currency and Foreign Transactions Reporting Act, 31 U.S.C. §§ 5311–5322 (Counts 11–14 and 21–23 in the Manafort/Gates Indictment in the Eastern District of Virginia)

The law has been amended a number of times to keep up with the times and types of crimes being committed against the United States. A post-9/11 amendment was part of the Patriot Act to combat terrorist enterprises, which added more than 50 predicate offenses as “racketeering activity” within the meaning of RICO.

Untitled, Acrylic on Panel, 12" x 16", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

Has Mr. Trump Engaged in RICO Violations?

Has Mr. Trump done any of the following:

  1. Invested the proceeds derived from a pattern of racketeering activity — two or more predicate offenses as listed above — in an enterprise?
  2. Acquired or maintained an interest in an enterprise through a pattern of racketeering unlawful activity — two or more predicate offenses as listed above?
  3. Conducted the affairs of an enterprise through a pattern of racketeering activity — two or more predicate offenses?

Stay Tuned!

For purposes of this writing, I stayed away from certain activities in which organized criminal enterprises have traditionally engaged. I may supplement in future posts, depending on what is revealed in the near-daily Trump criminal cliff-hangers. Those areas are sports bribery; counterfeiting; theft from interstate shipments; embezzlement from pension and welfare funds; extortionate credit transactions; fraud in connection with identification documents; fraud in connection with access devices; illegal transmission of wagering information; obscene matters; peonage and slavery; Hobbs Act extortion or robbery; interstate transportation of wagering paraphernalia; illegal gambling businesses; murder for hire; sexual exploitation, abuse and buying and selling children; transportation, sale or receipt of stolen vehicles; transportation of stolen goods and other property; sale or receipt of stolen goods and other property; copyright infringement and counterfeiting in the performance and entertainment and audiovisual and computer industries; trafficking in motor vehicles and motor vehicle parts with obliterated or altered vehicle identification numbers; trafficking in contraband cigarettes; transportation for illegal sexual activity; restrictions on payments on loans to labor organizations; embezzlement from union funds; narcotics violations; and a whole list of terrorism offenses.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com

**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamend