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Not the Donald, But the Don – Indicting a Career Racketeer

by Jonathan M. Winer

Aug 15, 2023 | Legal Affairs

Still from Aug. 14, 2023 press conference (left); lev radin (right)

Before the indictment of criminal defendant Donald John Trump under the racketeering statute in the State of Georgia, Godfather references were already a cliché.

Former New Jersey Governor and Republican presidential candidate Chris Christie recently described Trump and his associates at Mar-a-Largo as “acting like the Corleones with no experience,” in their efforts to hide classified documents from the National Archives and the Feds.

During the January 6 insurrection, Donald Trump Jr. texted then-White House Chief of Staff Mark Meadows that it was a “going to the mattresses” moment.

Back in 2017, Trump political advisor Roger Stone echoed the Godfather script to Randy Credico, his intermediary on his Russia-Wikileaks caper. Stone was indicted for false statements, obstruction of justice, and witness tampering in a case brought by Special Counsel Robert Mueller relating to the Russian government’s hacking of computers at the Democratic National Committee and the Democratic Congressional Campaign Committees during the summer of 2016. Rather than testify against him in the case, Stone told Credico to “Do a Frank Pentangeli”—the mob rat who flipped for the prosecution and then flipped against it.

Now, the Fulton County state prosecutor Fani Willis has indicted Trump and eighteen co-conspirators as a criminal enterprise for their efforts to overturn Georgia’s presidential elections, in violation of Georgia’s state Racketeer Influenced and Corrupt Organization Act, known as RICO.

The original RICO law was developed by federal prosecutor and long-time Notre Dame law professor G. Robert Blakey, and enacted federally as part of the Organized Crime Control Act of 1970 to prosecute mobsters. The law defined two or more distinct crimes committed by an “enterprise” as “racketeering activity” punishable by up to 20 years in prison, fines and forfeiture of an offender’s ill-gotten gains and interest in any business acquired through a pattern of racketeering. The Federal RICO law covers a wide range of crimes, starting with traditional mob crimes such as murder, kidnapping, gambling, arson, robbery, bribery, and extortion. Significantly, it also covers frauds, forgery, false statements, and document frauds.

Since the first law was enacted, 33 states and two territories have established their own state RICO laws. Georgia’s recently updated RICO statute is especially broad in its scope. It makes it a RICO offense if any person conspires with others to commit any of a wide range of criminal offenses in Georgia, including conspiracy to commit forgery, file false documents, solicit a public official to violate an oath, make a false statement, and take overt steps to carry out the object of that conspiracy.   Offenders are punished by a mandatory minimum of five years in prison per crime up to a maximum of a twenty years per offense. Georgia’s RICO law also authorizes asset forfeitures up to three times the value of whatever economic benefit the person has secured through the commission of the crime.

For all of the gravity of the crimes with which Trump is already charged, the Georgia indictment represents perhaps the most serious threat to him personally and financially. How much money did Trump and his various campaign and political action committees raise off of his false statements that the 2020 election of Joe Biden was fraudulent? Whatever it was, were Trump to be convicted, he and those associated with him could be forced to cough up three times the value of whatever funds they raised.

But the Georgia RICO case is hardly the first in the cascade of indictments and investigations Trump has faced. These include Trump’s first impeachment on December 18, 2019 for trying to coerce Ukraine President Zelensky into a) taking a bribe of essential military aid in exchange for interfering in the 2020 U.S. presidential election to help Trump’s re-election bid, and then b) obstructing the subsequent investigation by Congress.

There was his second impeachment in February 2021 for inciting the January 6 insurrection. In the last days of the 2021-2022 Congress, the final report of the bipartisan January 6 Congressional Committee found that Trump and his co-conspirators, including a number of his lawyers, committed multiple federal felonies. These included “Obstruction of an Official Proceeding” (18 U.S.C. § 1512(c)) for trying to prevent the certification of President Biden; “Conspiracy to Defraud the United States” (18 U.S.C. § 371), for initiating and implementing the false electors scheme; ”Conspiracy to Make a False Statement,” (18 U.S.C. §§ 371, 1001), for soliciting false statements by the Trump electors in swing states that they were lawful electoral votes that should be counted; and acts to  “Incite,” “Assist” or “Aid and Comfort” an Insurrection (18 U.S.C. § 2383).

These crimes were all referred to the Justice Department, setting into motion, at last, the appointment of Jack Smith as a special prosecutor on November 18, 2022, who in turn indicted Trump on August 1, 2023. Smith’s charges generally tracked the Congressional referrals, leaving aside (for now) those relating to inciting an insurrection. Notably, Trump was the only person indicted by Smith, at least for now. Six others, all attorneys, were identified only as unnamed unindicted co-conspirators. As a result, Trump can’t defend himself by citing advice of counsel when counsel were themselves co-conspirators participating in the very crimes for which Trump was indicted.

Smith’s federal indictment had followed the April 4, 2023 hush money indictment in New York City for 34 felonies for document fraud to cover up his instruction to his lawyer, Michael Cohen, to make payoffs just before the 2016 election to porn actor Stormy Daniels in order to cover up his sexual affair with her ten years earlier.

Smith’s federal indictment also followed the June 8 indictment he had himself brought in Florida against Trump for 37 felonies, charging him with retention of classified documents, including nuclear secrets, then hiding them, lying about them, and obstructing the investigation.

Meanwhile, Michigan’s Attorney General, Dana Nessel, has indicted sixteen people on July 18 for election law and forgery felonies for certifying themselves as Michigan’s electors, as part of the false electors scheme Trump concocted after he had lost the state.

Still possibly to come are other state indictments of the false electors scheme. Arizona Attorney General Kris Mayes put a team of prosecutors on the case in May, and they have contacted pro-Trump electors and their lawyers, mirroring the work done in Michigan. Depending on how wide the investigation, it could explore the conduct of Supreme Court Justice Clarence Thomas’ wife, Ginni Thomas, who was deeply involved in efforts to prevent Biden’s certification as President.

Thomas was especially active in Arizona, where she directly intervened with state legislators asking them to cast aside the state’s official tally for Biden and declare Trump the victor in their state. As justification, she relied on the now-discredited Independent State Legislature theory advocated by John Eastman, the Trump lawyer and unindicted co-conspirator in  Smith’s January 6th indictment (see also Road map for a Constitutional Coup: the Republican Plan for the Legislative Nullification of the Popular Vote for President, Winer, October 2021).

In Wisconsin, Attorney General Josh Kaul refuses to declare whether he’s initiating an investigation into the certification of false electors in that state. In New Mexico, the attorney general referred the scheme to the Department of Justice in January 2022 for investigation, but there has been no sign of its outcome.  Nevada’s attorney general wanted to investigate the certification of false electors in his state, but concluded there was no law against it, prompting the Nevada legislature to pass a bill, on partisan lines, that would make such false certifications a felony in the future. The bill was subsequently vetoed by the state’s Republican governor, Joe Lombardo.

And in Pennsylvania there are not likely to be efforts to prosecute. In that state the fake electors added language to their attestation that they were valid presidential electors only if it was ultimately determined that they were, in fact, valid presidential electors. These weasel-words have effectively prevented their prosecution.

All of which takes us back to the white collar crime wave unleashed across the nation by Trump in his role as “the Don.” This is the man whose business was forced to pay $25 million to the State of New York in 2018 to settle the frauds he committed swindling students enrolled at “Trump University.” This is the same man who presided over the Trump Organization, convicted on 17 counts of massive tax and documents frauds by the State of New York in a jury trial December 6, 2022,  and forced to pay the maximum statutory fine of $1.6 million for thirteen years of frauds, in a case in which Trump’s accountant went to prison after he pled guilty to 15 felonies. This is the same man whose Trump Foundation was forced by the State of New York to shut down, forever, in December 2019 and pay $2 million in fines to legitimate charities after illegally misusing charitable funds  for political purposes. And he is the same man whose prospective financing partner, Digital World, just agreed to pay an $18 million penalty to the Securities and Exchange Commission to settle an investigation into its planned merger with Trump Media & Technology Group for misleading investors.

These truths and their consequences are prelude to the decision announced this week by the Fulton County district attorney Fani Willis, a line which Jack Smith has yet to cross, and which no other prosecutor has yet faced up to: Donald Trump and his associates may masquerade as a political movement, a political party, or even a business. But whatever the immediate activity, they are fundamentally gangsters, closer in spirit and practice to the Mafia families of New York, the Columbian cartels and Japanese Yakuzas, the Hells Angels under Sonny Barger, with their secret messages, memes, clothing and insignia – whether tattoos and piercings or red MAGA hats – all playing their part, along with their criminal methods of raising funds, in forging their sense of tribal common identity.

Once Trump and his associates are understood as members of a gang engaged in organized crime, there is much more to look at than what’s covered even in the Georgia case. Other states, including Michigan, Wisconsin, and Nevada, have RICO laws, and could now consider whether Trump has engaged in a pattern of crimes in their states, from his actions in 2020 alone. For that matter, New York and Florida have RICO laws, too, as does New Jersey, home to one of Trump’s golf clubs, and where he is also alleged to have committed frauds.

Legal authorities in each of these states should probe Trump’s actions, and those of anyone else who has participated and profited from Trump’s racketeering. The scope could encompass his private sector co-conspirator, his co-conspirator lawyers, his co-conspirator consultants, his co-conspirator fund-raisers – even politicians who have corruptly participated in and in many instances economically benefited from Trump’s criminal activities. Trump’s conspiracies have been exceedingly broad, carried out over a long period of time and in many places, as reflected in the Willis indictments, which also cover the activities of 30 unindicted co-conspirators, who appear to have cooperated and received immunity deals, as well as the 19 ones she indicted. The proper instrument, RICO-based indictments, could finally corral the enormity of these crimes.

How far-ranging? A lot of the most serious organized crime these days crosses national borders, even continents. To date, not a single criminal case has been brought against Trump in connection with any of his international business activities. Is it possible that his business dealings with the Saudis and the Emiratis, like his dealings with the Russians, were all “perfect,” like his phone call to try to extort Ukraine to help him politically against Joe Biden? (Attempted extortion is a federal crime, and as mentioned, a predicate offense for a federal RICO case.) Or his “perfect” call to Georgia Secretary of State Brad Raffensberger, which now forms a central part of the Smith and the Willis indictments?

Is it possible, or even probable, that Trump used the classified documents he maintained at Mar-a-Largo to support his commercial arrangements with one or more Middle Eastern states, as some have theorized?

Could Trump have formed alliances with fellow gangsters who have achieved wealth and power in other countries?

There are great gaps in the information publicly available on what benefits Trump has received from the Saudis in connection with their use of his golf courses through the LIV tournament and their de facto takeover of the PGA. Some facts are visible: the Saudis do seem to have made a $2 billion investment in Trump’s son-in-law, Jared Kushner, beginning right after Kushner left his work at the White House in early 2021, with the Emiratis and the Qataris kicking in another few hundred million each.  Another Persian Gulf country, Oman, is reported to have its own $4 billion deal with Trump.

The January 6 Committee warned in a little noticed final Appendix to its report of growing foreign influence in our elections, and stating, as an example, that when it came to The Big Lie that the election had been stolen from him, “what President Trump was saying was, in sum, exactly what the Russian government wanted said.”

With Middle Eastern potentates and maybe other gangsters, deep into Trump and his family members, exemplified by Kushner, the question of whether the leading candidate for President in the Republican party is also acting criminally in his relationships with one or more foreign governments or their agents is worth serious, and urgent, investigative attention, given the mere 15 months before our next Presidential elections.


Jonathan Winer is a Washington lawyer who previously served as the State Department’s senior official for international law enforcement.  He is a member of Keep Our Republic, a non-partisan group focused on protecting American democracy, and in that context the views expressed in this article are his own.   

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  1. Fascinating article about “The Don.” But the saddest thing is that we have Trump as the current front running Republican candidate for the Presidential nomination and, similarly, Biden as the front runner for the Democrats. It is possibly unfair to compare the two (like apples and oranges), but neither is fit to be the next President of the United States. I have an attachment that outlines my substantial unhappiness with Biden. It is not well written, but it contains over 2 dozen things Biden has done (or not done) that reflect very unfavorably on him and on America. If we cannot send both men out to pasture, and soon, America is in deep trouble.

  2. Excellent summary. Of course, our biggest problem is that those who dearly need to be aware of all of this continue to plug their ears and avert their gaze whenever one word of criticism of Dear Leader is uttered or seen.

    The true patriots in this perilous time are those who do due diligence and take their vote very seriously. As has been said, “the price of liberty is eternal vigilance.”

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