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The scope of investigations by Special Counsel Robert Mueller and others into the activities of President Donald Trump, his campaign, and businesses is sweeping. Mueller is tasked with investigating Russian interference in the 2016 presidential election and any potential collusion between the Trump campaign and the Russians. This mandate gives the special counsel ample imperative to study an array of links between Trump, Trump associates, and Russia, in a list of concerns that seems to grow by the day.

The pace and intensity of this investigation was only highlighted by the recent release of the indictment and guilty plea of Trump campaign adviser George Papadopoulos, who admitted under oath lying to the FBI about his multiple contacts with Russians during the campaign, and acknowledged that the Russians informed him that they possessed “thousands of emails” hacked from Democrats well before any public knowledge of the fact.¹ Papadopoulos admitted that he shared information about his Russian contacts and desire to broker meetings with the Russians with his Trump campaign supervisors. In addition, the special counsel indicted the former Trump campaign chair Paul Manafort and his business partner Rick Gates on 12 charges related to a series of complex financial crimes that are alleged to have taken place both before and during the campaign.² The indictment charges that the pair conspired to move more than $75 million, largely from a Ukrainian lawmaker who was a supporter of Russian President Vladimir Putin, through offshore accounts and engaged in extensive money laundering; undertook a “conspiracy against the United States”; served as an unregistered agent of a foreign principal; and failed to file reports on their foreign financial and bank accounts.³

The reported areas of interest for the special counsel include Manafort’s finances, potential coordination between Trump campaign officials and Russian hackers in releasing damaging emails during the campaign, and lies to investigators. In addition, other areas of focus for the special counsel likely include the June 2016 Trump Tower meeting between Donald Trump, Jr. and the Russians offering damaging information on Hillary Clinton; the involvement of Russian government-connected Russian oligarchs in Trump real estate deals; potential intelligence intercepts of communications between Trump associates and the Russians; potential obstruction of justice by President Trump, including his dismissal of former FBI Director James Comey; and potential coordination between the Trump campaign and Russian elements in planting fake news in swing states and the purchase and pushing out of Facebook ads, Twitter posts, and other disinformation.

There is little in his resume to suggest that Mueller, a decorated military veteran and former FBI director, would approach his work as an open-ended fishing expedition designed to impose a political cost on the president. But it is important to note that Mueller’s written directive from Rod Rosenstein, the deputy attorney general who appointed the special counsel, establishes that Mueller is to investigate any links between Russia and the Trump campaign, and “any matters that arose or may arise directly from the investigation.”⁴ In other words, the special counsel is duty-bound to investigate other serious crimes that may crop up in his investigation, including, but not limited to, money laundering, tax evasion, perjury, abuses at the Trump charities, or espionage. The Manafort-Gates indictments suggest that the Special Counsel investigation traverses a timeline that includes, but again, is not limited to, the campaign.

Given the complex and likely interlocking nature of the special counsel’s investigations into these multiple fronts, an obvious question arises: Does the alleged behavior of The Trump Organization amount to an ongoing criminal conspiracy and should it be pursued as such? That answer ultimately lies with prosecutors at the federal and state level, most notably Mueller; these prosecutors have access to evidence and legal expertise well beyond that of a lay person. That said, the media and appropriate congressional oversight committees should recognize that Trump and his circle not only engaged in what appears to be serial misconduct, but acted with coherent purpose in doing so. A close look at the record suggests that The Trump Organization arguably behaved a great deal like the organized crime syndicates, which have been targeted as criminal conspiracies in the past.

Thus far, Trump and his associates—with the exception of George Papadopoulos—deny any such criminal actions, and prosecutors have not indicated that any such charges are pending. However, it is important for the public to better understand what might constitute a potential ongoing criminal conspiracy in the eyes of prosecutors, and to better illuminate the specific conduct of the Trump campaign and The Trump Organization that have given rise to this conversation in the first place.

If prosecutors, including the special counsel, were to approach the alleged actions of the Trump campaign and The Trump Organization as a criminal conspiracy, such as through the use of the Racketeer Influenced and Corrupt Organization Act (RICO), it would give them a set of powerful tools, albeit tools that come with some substantial risks for the prosecution. A RICO case would likely not be a silver bullet to magically put an end to the Trump administration, but it might be an intriguing tool used in conjunction with state level investigations into the activities of Trump and his associates to uncover and punish any potential wrongdoing. Investigative reporters and congressional committees should specifically explore RICO predicate offenses linked to The Trump Organization; the question of whether a RICO case should be brought on its merits deserves to be raised.

For months, the suggestion that President Trump’s campaign and/or The Trump Organization would be pursued under RICO was largely treated as the fevered imaginings of fabulists hell-bent on removing Trump from office. However, the interlocking web of alleged criminality that Mueller is investigating bears a strong resemblance to exactly the kind of organized criminal activity that the RICO statute was designed to combat.

RICO 101

RICO was enacted by Congress in 1970, and can be applied in both criminal and civil cases.⁵ In addition to being applied by federal prosecutors, RICO can also be applied by state prosecutors in the 33 states, as well as Puerto Rico and the U.S. Virgin Islands, which have codified their own RICO statute—an important point that will be revisited in this report. The American Bar Association guide to RICO notes that many of the state statutes “are significantly broader in scope than the federal statute,” including in such areas as their periods of limitation and how they can be brought forward. The American Bar Association goes on to explain, “Although federal criminal RICO prosecutions must receive prior approval from the Organized Crime and Racketeering Section of the Department of Justice, in most states RICO prosecutions can be initiated without centralized review, often by any district attorney.”⁶

RICO was developed primarily as a tool to fight organized crime, and particularly the senior leadership of organized crime families, who directed extensive criminal networks but tried to avoid prosecution by keeping an array of intermediaries between themselves and the actual perpetration of criminal acts. RICO proved to be an enormously effective tool in combatting organized crime.  For example, in 1985, the State of New York secured indictments of the five chieftains of New York’s major organized crime families utilizing RICO, ultimately convicting four of these individuals, with the fifth being killed by a rival before trial.⁷

Yet, as the Congressional Research Service notes, “In spite of its name and origin, RICO is not limited to ‘mobsters’ or members of ‘organized crime’ as those terms are popularly understood. Rather, it covers those activities which Congress felt characterized the conduct of organized crime, no matter who actually engages in them.”⁸

In 1985, the U.S. Supreme Court affirmed the more expansive use of the RICO statute. The court ruled in Sedima S.P.R.L. v. Imrex Co. that RICO could be applied in cases involving legitimate companies engaged in a pattern of criminal conduct.⁹ From that point forward, RICO came to be much more widely used by prosecutors in cases involving white-collar crime. There has also been a concurrent rise in complaints that the RICO statute is being overly broadly applied, and even the statute’s defenders tend to agree that it was drafted expansively. The Los Angeles Times in a 1989 editorial called for RICO to be rescinded. The newspaper observed:

From the moment of its passage, civil libertarians and legal scholars have warned that the federal government’s Racketeer Influenced and Corrupt Organizations Act—the so-called RICO statute—is an open invitation to prosecutorial abuse. Now … many of those scholars, some of them former prosecutors, believe their anxieties have been realized.¹⁰

Motorcycle gangs, the Catholic Church, the International Federation of Association Football (FIFA), and even corrupt police forces have been targeted using RICO; these different prosecutions have achieved mixed results. With RICO’s very broad definition, there is also a real risk that it could become a political rather than a law enforcement tool.

The concept of using RICO to go after politicians has sometimes been floated in ways that are grossly irresponsible. Rudy Giuliani, a former U.S. Attorney, argued repeatedly during the 2016 campaign for a RICO case against Hillary Clinton based on her use of a private email server; donations to the Clinton Foundation, and her paid speeches.¹¹ In May 2017, former conservative U.K. parliamentarian Louise Mensch evoked widespread eye-rolling when she suggested on her blog that a RICO case was already well-advanced against Trump and that Trump, Vice President Mike Pence, and Speaker of the House Paul Ryan were facing imminent jail time.¹² Both Giuliani and Mensch seemed united in their stubborn avoidance of the facts and hyperbolic statements designed to grab public attention. Any use of RICO by the special counsel would have to be extraordinarily carefully considered, but so would any charges that he might bring in this case, so RICO should not be seen as fundamentally different than any other prosecutorial tool in this respect.

It is worth noting that Donald Trump has previously faced RICO challenges, with one of the Trump University civil cases having been filed under a RICO class action suit in California.¹³ That case was in the process of moving forward when Trump settled the lawsuit for $25 million, without an admission of guilt, shortly after being elected president.¹⁴ Trump’s sometimes business partners, the Bayrock Group, are also defendants in a complex civil RICO case initiated by the firm’s former chief financial officer.¹⁵

What, then, is the threshold that must be met for application of RICO? As explained in the Marquette Law Review:

Most significantly, “racketeering activities” were defined as violations of any one of over thirty separate, already existing state and federal statutes. These activities have been referred to as the “predicate acts.” A “pattern of racketeering” encompasses two violations of any of the predicate acts within the past ten years.¹⁶

The window in which the predicate acts must have occurred varies by the different RICO statutes at the state level. Thus, for the special counsel to apply RICO statutes in a potential case against Trump, the Trump campaign, and The Trump Organization and Kushner Companies, the special counsel would have to present solid evidence that at least two of these predicate acts took place, with a state prosecutor having to meet a similar state-defined predicate threshold.

Notably, some of the crimes under the RICO statute include money laundering, obstruction of justice, bankruptcy or securities fraud, bribery, theft, and embezzlement. Federal RICO defines certain crimes as constituting racketeering activity, and then criminalizes a pattern of racketeering activity that uses any of the income or proceeds from these activities “in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.”¹⁷

In a criminal RICO case, the racketeering activities must be shown to be related. The U.S. Supreme Court established this precedent in its 1989 decision on H.J. Inc. v. Northwestern Bel Telephone Co., which ruled that racketeering activities must “‘have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.’”¹⁸ Additionally,  the predicates must “amount to or pose a threat of continued criminal activities.”¹⁹

It is not necessary to prove that a defendant “agreed with every other conspirator, knew all of the conspirators, or had full knowledge of all the details of the conspiracy…All that must be shown is: (1) that the defendant agreed to commit the substantive racketeering offense through agreeing to participate in two racketeering acts; (2) that he knew the general status of the conspiracy; and (3) that he knew the conspiracy extended beyond his individual role.”²⁰

Federal criminal cases under RICO must be brought forward by the government and have a trial following a grand jury indictment or end in a plea, while grand jury requirements vary by state. Penalties for RICO convictions are substantial and include imprisonment, criminal forfeiture, plus fines as high as twice the gross profits or proceeds of the RICO offense.²¹

Additionally, according to the legal resource site HG, if a defendant is convicted:

the government is automatically given a forfeiture of all of the defendant’s interest in the organization. So not only do defendants lose all their money and property that can be traced back to the criminal conduct, but the organization itself can be severely crippled. And the government need not wait until after a guilty verdict, when the property expected to become subject to forfeiture may be difficult to locate. The rules of procedure in a RICO prosecution allow the government to freeze the defendant’s assets before the case even goes to trial.²²

These are sweeping powers of asset seizure for the government and they have naturally sparked considerable debate about potential abuses of RICO. The notion that assets can be seized before an individual or criminal entity is found guilty has triggered deep constitutional concerns among groups across the political spectrum, ranging from the Heritage Foundation to the American Civil Liberties Union.²³ The notion of such pre-emptive asset forfeitures were less controversial with RICO when it was being primarily utilized as an anti-organized crime mechanism. Now that its use has become much more widespread, including through civil actions, such asset forfeitures have become an understandable lightning rod. (Abuses of forfeiture procedures in non-RICO cases at a local level have also added considerable fuel to the fire, as has the current administration’s effort to expand these powers.)²⁴

Right or wrong, asset seizures inherent in RICO can inflict tremendous damage on a criminal network. As written in the U.S. code on civil forfeiture, this is in large part because the seizure is not just limited to profits from the actual crime, but “property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to the forfeiture, and any property traceable thereto, and is not limited to the net gain or profit realized from the offense.”²⁵ For The Trump Organization and Kushner Companies—both real estate empires with sprawling holdings—the potential risk from a RICO investigation would be immense. All the more so because both companies continue to carry a great deal of debt on their property holdings, and any asset seizures could quickly trigger a cascading financial collapse of their portfolios.

The RICO Act itself does not contain a provision for a statute of limitations, therefore it falls under the five-year limit imposed for noncapital federal offenses. Per the U.S. Department of Justice, a substantive RICO charge, therefore, requires that “each defendant must have committed at least one act of racketeering within five years of the date of the indictment.”²⁶ However, “a ten-year statute of limitations applies to RICO charges where the racketeering activity involves a violation of 18 U.S.C. 1344 – bank fraud.”²⁷ Though, as G. Robert Blakey points out in the Notre Dame Law Review, in complex crimes, particularly financial ones, it is not always clear when an offense was committed. Most courts consider  offenses to have been committed when they are complete, however, some offenses are continuing offenses, in that “the statute of limitations does not begin to run when the perpetrator has satisfied each of the elements of the offense. Rather, the statute of limitations begins to run when the criminal course of conduct ends.”²⁸ Thus, when looking at a pattern of racketeering activities, “where one predicate act of racketeering in a pattern of racketeering falls within the period of limitations, the entire pattern of racketeering is subject to prosecution, even though earlier acts of racketeering might not be subject to prosecution as separate offenses.”²⁹

Civil RICO cases, continues Blakey, are treated somewhat differently than criminal ones. These cases require a civil trial brought either by the government or a private plaintiff, with lower standard of proof than criminal cases, that is to say, that there is a “‘preponderance of the evidence.’”³⁰ RICO civil penalties include “sanctions of injunctions, treble damages [three times the amount of money lost due to the defendant’s actions], costs, and attorney fees.”³¹ Mounting a civil RICO case shifts more of the burden of proof to the defendant, but also demands that a private plaintiff have standing—in other words, that an individual, company, or institution can demonstrate that they suffered concrete harm as a result of the alleged crimes committed by the defendant.

What Trump actions might meet the RICO threshold?

It is important to remember that the special counsel will not necessarily be drawn to a conspiracy case unless there is very strong evidence toward this end. Should that be the case, the use of the RICO statute (or other types of conspiracy charges) would facilitate Mueller’s efforts. As former federal prosecutor Renato Mariotti argues, “It’s important to keep in mind what prosecutors do: They investigate discrete crimes.”³² He adds, “Mueller won’t charge one grand conspiracy involving everyone he’s looking at. If he brings charges, expect to see individuals charged separately unless they committed a crime together.”³³

So, although there are a large number of potential offensives that have received high profile treatment in the media, some seem highly unlikely to meet the RICO threshold. For example, Trump’s repeated abuses related to the Donald J. Trump Foundation, while potentially illegal, would probably not constitute a RICO predicate act.³⁴ Similarly, the initial charges against Donald Trump’s former campaign chairman, Paul Manafort, will likely continue to be prosecuted as stand-alone charge—unless money laundering and other charges were part of a more widely orchestrated effort of which Manafort was only a part.³⁵ The RICO statute is designed to allow prosecutors to use initial charges as an effective vehicle for incentivizing cooperation from those charged to move further up the criminal food chain.

The three areas that might be of greatest interest to a special prosecutor looking at The Trump Organization and Kushner Companies through a RICO lens fall into three broad time periods and categories: activities before the presidential campaign, particularly complex financial crimes; coordination with Russian or Russian-supported entities during the campaign; and obstruction of justice since the election.

The composition of Mueller’s team suggests that he has accumulated staffing expertise to potentially deal with all of these issues.  One of Mueller’s first hires was Andrew Weissmann, who is the previous leader of the Justice Department’s criminal fraud division and once played a role in a case involving the Russian mob, which is now linked to Trump.³⁶ Other members of Mueller’s team of prosecutors include Aaron Zebley, who has a background in cybercrime and counterterrorism; James Quarles, who served as an assistant special prosecutor during the investigations into the Watergate scandal, specializing in campaign finance research; Jeannie Rhee, who has a background in white-collar crime; Greg Andres, a prosecutor specializing in foreign bribery; Kyle Freeny, who has worked on some of the Department of Justice’s highest profile money laundering cases; Andrew Goldstein, who headed the public corruption unit in the U.S. Attorney’s office in the Southern District of New York and who had been overseeing an investigation into Manafort’s business and real estate dealings before Mueller took over that investigation; Brandon Van Grack, who has often taken the lead in espionage and national security cases out of the Eastern District of Virginia; Michael Dreeben, who is working for Mueller part-time and is currently serving as the deputy solicitor general responsible for overseeing the Justice Department’s criminal appellate docket; Lisa Page, who worked as an attorney with the FBI’s Office of General Counsel and with the Justice Department’s Organized Crime and Gang Section, prosecuting several eastern European organized crime cases and helping with the FBI’s investigation of a money laundering case against Manafort; Rush Atkinson, who worked as a trial attorney for the Justice Department’s Criminal Division Securities and Financial Fraud Unit; Zainab Ahmad, who was an Assistant U.S. Attorney for the Eastern District of New York and has prosecuted more than a dozen international terrorist suspects. Rounding out the team of prosecutors are assistant U.S. attorney Aaron Zelinsky; appellate lawyer from the Justice Department Adam Jed; and solicitor general’s office lawyer Elizabeth Prelogar.³⁷

The efforts by Trump lawyers to keep the special counsel from looking at his business dealings before the presidential campaign are certainly understandable from a defense perspective. However, The Trump Organization and Kushner Companies have triggered a number of red flags that will surely lead investigators to look at potential money laundering and other complex financial crimes that appear to be some of the criminal offenses most commonly associated with building a RICO case. Time and time again, Donald Trump has insisted that he has had no business dealings with Russia or Russians. As recently as July 2017, he said, “But I have no income from Russia. I don’t do business with Russia.”³⁸ While not illegal to mislead the public about such connections when not under oath, it does suggest that Trump and his associates are attempting to obscure something. Indeed, the facts suggest that financing from Russia, Russians, and others from the former Soviet Union has been an integral part of the Trump business model for years.³⁹ Potentially illegal activities from before the campaign, even if they were unrelated to the campaign itself and Russia’s interference on Trump’s behalf, could potentially be used to build a RICO case.

Trump SoHo and the Bayrock Group, Sater, Cohen connection

The real estate industry has traditionally been relatively lightly regulated compared to the finance and banking industries, despite of the sometimes-large sums of money involved in transactions. As a result the industry has tended to be a magnet for money laundering. Trump’s long-running engagement with the development company the Bayrock Group and its former managing director, convicted felon Felix Sater, are most certainly under scrutiny by the special counsel. Bayrock has offices in Trump Tower and founded by Tevfik Arif, a former Soviet official; it was also central to putting together multiple deals with Trump, including the troubled Trump SoHo building in New York.⁴⁰

It appears that Trump’s children, Ivanka and Donald Trump Jr., narrowly avoided being charged for fraud for their part in promoting the Trump Soho project, according to feature-length reporting by The New Yorker and ProPublica.⁴¹ (Both Trumps referred all questions regarding the case to their counsel.) The decision to not bring charges against Ivanka and Donald Jr., despite the recommendation by prosecutors, was made by the Manhattan District Attorney Cyrus Vance Jr., who later received more than $50,000 in campaign contributions from Trump’s lawyer, Marc Kasowitz, and his partners.⁴² Kasowitz, denies having made this contribution “as a ‘quid-pro-quo’ for anything.”⁴³ Vance, for his part, defended his decision, saying that he did not, “at the time believe beyond a reasonable doubt that a crime had been committed.”⁴⁴ (The case and its handling could certainly be re-opened by the special counsel.)

Bayrock has been embroiled in long-running, complicated,