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.