Today in his testimony before Congress, Attorney General Bill Barr confirmed through his non-denial denial what we all know: That the Trump administration plans to use the 1970s-era Racketeer Influenced Corrupt Organizations (RICO) Act to prosecute Antifa.
The Trump Administration has been claiming for years now that Antifa, the loose, largely unconnected-but-similarly-minded people who appear on the streets as part of large protest actions is actually a formal or informal group.
Partly Trump and his Department of Homeland Security have spread the myth of Antifa-as-an-Organization to rally the right-wing base in preparation for the 2018 and now 2020 elections.
But the more sinister aim – whether Trump himself knows this – is to create the legal groundwork to use various criminal and anti-terrorism laws to prosecute people, even those who do even regard themselves as Antifa, for federal crimes. Hence the email released earlier this week in which DHS officials rename alleged “violent” actors as “Violent Antifa Anarchists Inspired (VAAI)” in official reports.
RICO – the 1970s-era act initially drafted to pursue the Italian mob – is the vehicle to do that.
Having just defended at trial in Charlotte a client in October in the largest RICO prosecution in U.S. history, I am intimately familiar with the intricacies of this law and how it makes defense at trial very difficult.
Even though the jury found my client not guilty of agreeing to any murders on behalf of the gang, the only trial victory of any one of the 82 original defendants, the trial itself involved the Government backing up a dump truck of evidence about the Nine-Trey Bloods gang that made my client look awful, even though he was not personally involved in nearly all of it.
That’s what the Government can do in a RICO case. Furthermore, the RICO conspiracy statute doesn’t require that the Government prove that the defendant was a member of Antifa. The Government need only prove that the person “conspired” or agreed with the criminal intent of the group while doing something, however small, in furtherance of that group. Recruiting people into Antifa, even if that were possible, could be construed as committing RICO conspiracy, even if the person did not regard himself or herself as a member of Antifa.
Furthermore, the RICO crime and caselaw convert all statements made as part of the conspiracy into a non-hearsay. So these statements come in even if those statements would otherwise be regarded as hearsay, or subject to the Confrontation Clause. A literal dump truck of evidence can be backed up to a federal courthouse to make a defense of these cases very difficult.