RICO: Basic Ideas

Since we’ve gone there, we may as well attempt a very basic outline of what RICO is about, how it could apply to the Durham investigation, and why I don’t see that—to this point.

Rather that follow my usual course of using Wikipedia, I’ve found a simple page outlining the basics that will serve out purpose. Here it is—I’ll be skipping over certain aspects that I take for granted in the Russia Hoax investigation, such as the effect on interstate commerce, so this is by no means a complete presentation:

Understanding RICO Conspiracy Laws, Charges

The federal Racketeer Influenced and Corrupt Organizations Act “RICO” is often thought of as a law designed to combat the Mafia. While that is how the law was first primarily used and intended, it has been applied in cases involving organizations that few people would mistake for the Mafia, including Major League Baseball, the Key West Police Department and the Catholic Church. RICO creates criminal and civil penalties for members of organizations that engage in patterns of criminal activity.

Please note that last phrase: “patterns of criminal activity.” This is basic to the whole concept of RICO.

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How It Works

To successfully prosecute for RICO it must be shown that members of a criminal enterprise engaged in a pattern of racketeering that had an effect on interstate commerce. Those elements need to be broken down for an explanation:

Criminal Enterprise – Any organization that works together over time and has an organizational structure with one or more persons making decisions for the organization. The enterprise can have either an illegal or a legal purpose.

Pattern of Racketeering – The members of the organization must have engaged in ongoing illegal activity. At least two predicate crimes (explained below) must have been committed. Two separate and unrelated crimes are not considered a pattern of racketeering. There must be some kind of ongoing scheme of criminal activity.

Consider Kevin Clinesmith from the standpoint of “pattern”. Clinesmith committed one criminal offense (that we know of). That’s not sufficient to establish a pattern of activity. In the Sussmann case, Sussmann has been charged with one criminal offense (so far). That’s not a pattern.

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Predicate Crimes

RICO charges cannot be filed against people who engage in [just] any criminal activity. The statute lists particular criminal activity. These underlying crimes that can trigger RICO charges are called predicate crimes. Some examples of the listed crimes are:

Money laundering

Extortion

Gambling

Murder

Bribery

Securities Fraud

Dealing in obscene material

Drug trafficking

Embezzlement

The above list is not comprehensive. As you can see from what is listed, the possible predicate crimes for RICO charges span a wide range of criminal activity and include white collar crimes.

What I can tell you is that one of the predicate crimes that does NOT appear in any list is 18 USC 1001, false statements to the federal government. That’s what Clinesmith was charged with and that’s what Sussmann is being charged with. It’s not a coincidence—1001 covers lying to the federal government which is the most easily proved charge in these types of cases. No matter how many times these guys lied to the feds, it doesn’t add up to RICO, because it’s not on the list.

A further consideration is that charging under RICO isn’t a given. The DoJ policy is to use RICO sparingly. We don’t need to go into that now. It’s simply something to know.

Since 1001 doesn’t qualify under RICO, what would be possible RICO predicate offenses that could be used to establish a pattern of racketeering activity? The one that SWC mentions is 1512, obstruction of justice—basically, various forms of witness or evidence tampering, ranging from murder down to corrupt persuasion or destruction/alteration of docs. Another possibility that comes to my mind is mail or wire fraud. The problem is, so far as I can tell, we haven’t had a hint of any of these things from Durham. Take it any way you want. Until Durham comes out with some evidence, I’ll assume he doesn’t have any at this point. If he did, I would have expected charges. It’s possible that he believes he needs more witness testimony to make 1512 charges stick, and he’s hoping to get that from Sussmann and/or Joffe. But we don’t know at this point—although it seems clear enough that he’s trying to pressure Sussmann into a deal.

Now, there’s a final consideration. You can find it in a 24 page doc put out by the US Sentencing Commission: RICO GUIDELINE. On page 5 there’s a discussion of RICO conspiracy. This is important because a RICO conspiracy works differently than the type of conspiracy that Durham has been alleging so far. The section isn’t long, so I’ll quote it in full:

d. 18 U.S.C. § 1962(d)

Section 1962(d) provides that “[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” Unlike the general conspiracy statute applicable to federal crimes, which requires proof that at least one of the conspirators committed an “act to effect the object of the conspiracy,” there is no requirement under section 1962(d) that an “overt act” or specific act be committed in furtherance of a RICO conspiracy.

Furthermore, a defendant who conspires to commit a substantive offense under section 1962(a), (b), or (c) can be convicted of a RICO conspiracy even though the defendant does not personally commit or agree to commit the racketeering activity or collection of unlawful debt required for commission of the underlying substantive offense.

This provision makes proving a pattern of racketeering activity easier, but it doesn’t obviate the requirement for predicate offenses. However, the statute of limitations issue becomes much more flexible for a RICO conspiracy. Here I’m quoting SWC:

"The conspiracy may be deemed to continue as long as its purposes have neither been abandoned nor accomplished."

"Both the conspiracy itself and its enduring nature may be proven circumstantially."

The RICO conspiracy statute does not require the proof of an "overt act".

And that set up leads to this:

1. What were the "purpose(s)" of a RICO conspiracy IF you advance a RICO conspiracy claim against the Clinton Campaign and DNC?

2. At what point in time was that conspiracy "abandoned or accomplished"?

Hmmmm.

Note that SWC capitalizes “IF”. That eventuality has not yet come to pass and may never come to pass. In particular—and unless I’m mistaken—we have not yet seen Durham adduce facts that would constitute obstruction of justice. As I said earlier, we’ve seen plenty of attempts to redact evidence and to withhold it on specious claims of privilege, but that’s just legal sparring. It doesn’t rise to the level of criminal obstruction.

Finally, I direct your attention to another SWC thread, which provides an excellent overview of the formation of the conspiracy that is alleged in the Sussmann case—not a RICO conspiracy. SWC includes some context that, as is usual, Durham leaves out of his memorandum, but which he is certainly well aware of. There is also some discussion of matters we dealt with here earlier (Sussmann’s “exculpatory” representations). What it all leads up to, however, is the same conspiracy to snooker the FBI through false statements. Not a RICO predicate offense. I’d certainly like to know why SWC has raised the possibility of 1512 violations. In the world the Clintons inhabit that has to be considered. But so far, nothing.