The famous statement attributed to Lavrentiy Beria, Stalin’s secret police chief (“Show me the man and I’ll find you the crime”), is the paradigmatic example of what the rule of law is not.
Mark Meadows, Donald Trump’s chief of staff, was charged in Georgia with participation in a criminal enterprise. The prosecutor, Fani Willis, used the state’s imitation of the federal Racketeering and Corrupt Organization (RICO) Act. A Wall Street Journal story contrasts the Georgia indictments with the federal one for attempting to overturn the 2020 election (“The Curious Case of Mark Meadows, Told Through Two Indictments,” August 17, 2023):
The Georgia prosecution, however, is a racketeering case, with Trump charged as being at the center of a criminal enterprise. Under Georgia’s RICO law, Fulton County District Attorney Fani Willis has the power to cast a wider net and implicate any player—big or small—who took part in the alleged conspiracy. Any act that furthers the alleged enterprise, which could be as simple as making a phone call or sending an email, can place an individual in legal jeopardy if done to advance the conspiracy’s broader goals.
RICO is a very dangerous sort of law that was officially meant to go prosecute mafia bosses. If serious evidence exists that a mafia boss has committed a real crime, he should of course be prosecuted for that crime. Conspiring or attempting to commit a crime was always a crime, long before the invention of RICO in 1970. Standard law-and-economics theory explains this with simple incentives: if you try to steal $1 million and your probability of success is 0.5, your expected gain (not the net gain, of course) remains an attractive $500,000. Law-and-economics would also explain why delusion cannot be an excuse for a crime. (See David Friedman, Law’s Order: What Economics Has to Do with Law and Why It Matters [Princeton University Press, 2000].)
Contra RICO, the minion who just carried the mafia boss’s luggage should not be prosecuted—a fortiori if he was trying to restrain the boss from committing crimes, as Meadows may have done. This remains true if one believes that Trump was engaged in a criminal enterprise and trying to expand it. It would probably have been wise for his collaborators to jump ship earlier, as some did. On the other hand, it would have been very dangerous to have Trump running loose in the City of Command, as Bertrand de Jouvenel called the seat of the state. I note with the Wall Street Journal that the federal prosecutor, Jack Smith, did not use RICO nor prosecute Meadows. I think that my critique is consistent with the liberal conception of the rule of law as defended notably by Friedrich Hayek and James Buchanan.
A prosecutor naturally hopes to “flip” criminal accomplices into providing evidence lest their own crimes be more harshly punished. On the accomplices’ side, we meet what game theory calls the “prisoner’s dilemma.” This actually explains why complex conspiracies involving large groups of individuals are rare and rarely unpunished—why, for example, a complex conspiracy to overturn a US presidential election does not happen often. But a strict rule of law, not to mention civilized decency, would not incentivize prosecutors to round up all those who were standing around. With the proliferation of laws including RICO, everybody may be guilty of something. Show me the man…
In the case under consideration here, there is also a supreme irony, if not something like natural justice. In the 1980s, Rudolph Giuliani, who was a politically ambitious and immoral federal district attorney, used the federal RICO to wage a witch-hunt against New York financiers, sending many innocent men to prison and destroying many lives. He was too ignorant of political economy to suspect that the same sort of law could turn against him and, more worryingly, against future innocent individuals. It is all to the honor of the Wall Street Journal to have, at that time, defended many of the persecuted financiers.
READER COMMENTS
Scott Sumner
Aug 18 2023 at 9:39am
Very good point about Giuliani.
Pierre Lemieux
Aug 18 2023 at 9:53am
Thanks, Scott. This seems rather obvious to me, but we may not be many to share this concern.
Craig
Aug 18 2023 at 10:58am
Sadly Professor, I fear you may be carbon dating yourself referring to 1980s Rudy. Honestly I don’t really remember him from the 1980s and my only recollection of him is as mayor of NYC. Obviously as mayor through 9/11 he had an excellent public image.
Jim Glass
Aug 18 2023 at 4:58pm
Very good point about Giuliani.
Lawyers across New York have been laughing out loud about this for days.
Do note, however, that Giuliani also wrecked the mob with RICO. And people who actively conspire to topple an elected government arguably commit a much worse crime than the mob ever did, they really aren’t to be compared with ‘innocent financiers’. That includes Rudy himself, of course.
Scott Sumner
Aug 18 2023 at 7:06pm
Just to be clear, I’m not defending Giuliani in this case.
robc
Aug 18 2023 at 10:30am
https://www.dailymail.co.uk/news/article-12413181/ALAN-DERSHOWITZ-Al-Gore-2000-Donald-Trump-indictment.html
tldr version: Dershowitz says that everything Trump did in Georgia is what he and Gore did in Florida in 2000. He thinks Trump is wrong, that he didnt win. He also still thinks Gore won in Florida. But that is not the point.
Scott Sumner
Aug 18 2023 at 7:18pm
There’s an enormous difference between a candidate trying to make sure all his votes are counted in an election that is too close to call, and a candidate pressuring a public official to overturn an election that he had clearly lost. Two years later Trump retaliated against that state official by trying to destroy his career because he was “too honest” in counting votes, to use the terminology that Trump applied to Pence.
I’m not an expert on whether Trump violated the Georgia law, but the comparisons to Gore seem pretty far-fetched. Unfortunately, because the Senate failed to do its job in 2021, we are here today. A banana republic.
Pierre Lemieux
Aug 18 2023 at 7:33pm
robc: I have been surprised for a few years by Dershowitz’s stance on Trump’s adventures. It seems obvious to me that (as Scott said) there is a mountain of difference between Gore’s behavior and Trump’s. Moreover, Trump had already warned us, both in 2016 and in 2020, that he could only commit to accepting the election results if he won. It is not easy to understand why people continue to follow a compulsive crook. But then he had also told us that he could shoot people on 5th Avenue and that his followers would continue to be “loyal” to him! It’s worth listening to the very snort video on his words: https://www.youtube.com/watch?v=iTACH1eVIaA
Pierre Lemieux
Aug 18 2023 at 7:37pm
Perhaps all this can help us understand why there are still Peronists in Argentina.
Craig
Aug 18 2023 at 10:54am
The criminalization of politics is an escalation in the cold civil war. The federal government is irredeemable.
“the rule of law is not”
True, but lawfare is preferable to actual warfare of course. I view this through the lens of a conflict.
Roger McKinney
Aug 18 2023 at 11:21am
Good points! Have you read Conrad Black’s book about his brush with the law? He shows that the Justice Department operates like the Mafia by threatening friends and family with jail and financial ruin if they don’t come up with something against the accused even if they must make it up. Then they are granted immunity from purely. Our system is very evil.
MarkW
Aug 18 2023 at 12:02pm
Not to mention the prosecutorial practice of over-charging to coerce plea deals even from innocent defendants who are intimidated by the laundry list of charges and lengthy potential jail-time into giving up their right to trial by jury.
Pierre Lemieux
Aug 18 2023 at 1:06pm
Roger: I knew Conrad Black and defended him in a few articles when he was prosecuted by the DoJ. Coincidentally, the day before he was indicted in Chicago, he was a guest at one of the dinners I hosted in Montréal. I think Trump was right to pardon him as he was right to pardon Milken (among many he was wrong to pardon and many others he should have pardoned instead). The only problem in pardoning Conrad was that the latter lost all objectivity regarding Trump, which compounded his vision of history as made exclusively by “great” men (such as Nixon). Of course, I also understand that Conrad would be very resentful of his prosecution in America.
Craig
Aug 18 2023 at 9:34pm
“The only problem in pardoning Conrad was that the latter lost all objectivity regarding Trump,”
Perhaps the flipside could also be a source of bias: The only problem in persecuting and incarcerating Conrad was that the latter lost all objectivity regarding the federal government. (?) [Note, I am unfamiliar with the details of the case]
Pierre Lemieux
Aug 18 2023 at 11:53pm
Craig: Yes, there is that too. Several months or perhaps a year before his indictment, he and I were chatting at a reception in Toronto. At some point, following a statement of his, I said something to the effect that even in the West finding a free country was difficult. He looked very puzzled and replied as if was absolutely unquestionable: “Yes, the United States and the United Kingdom” (although I am not totally sure it was in this order).
nobody.really
Aug 18 2023 at 10:21pm
If you’re concerned about the “Show me the man and I’ll find you the crime” dynamic, your target shouldn’t be RICO; it should be special prosecutors/independent counsels/special counsels. Most prosecutors work within a given jurisdiction, and must allocate their limited resources among all the alleged crimes committed within the jurisdiction. In contrast, a special counsel is assigned one specific person/matter to investigate–and those investigations can sprawl.
Pierre Lemieux
Aug 18 2023 at 11:54pm
Nobody: You may be right, but Fani Willis does not confirm your point: she is precisely a run-of-the-mill prosecutor.
Michael Sandifer
Aug 22 2023 at 12:29pm
I’m not persuaded by this argument. In fact, one could argue there should be a law that states that failure to notify law enforcement of efforts to conspire to overturn an election should be a felony.
Such laws exist to protect children, for example. It is illegal in many states to fail to report child abuse, if witnessed.
One way to protect oneself in a situation like Meadows found himself is to forcefully resist the conspiracy.
Pierre Lemieux
Aug 24 2023 at 11:14am
Michael: “There should be a law” is a dangerous argument. There are already thousands of them and everyone has his new proposal. Here is the ultimate one, which will save 6,000 lives every year: https://www.econlib.org/archives/2018/02/a_simplistic_mo.html
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