These Law Firms Should Sue Trump for Racketeering From the Oval Office

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Donald Trump has never been exactly shy about his criminal behavior, but now he has taken to proudly proclaiming it. In his recent Time magazine interview, the president basically confessed to extortion:

You’ve used threats and lawsuits, other forms of coercion—

Well, I’ve gotta be doing something right, because I’ve had a lot of law firms give me a lot of money.

Now, extortion is a crime. But who cares, right? Trump isn’t going to prosecute himself. The good news is, he doesn’t have to. Holding him legally accountable doesn’t require prosecution. Trump’s actions open up him and his aides to a powerful form of civil liability that will make clear that they are, in fact, criminals: civil RICO.

Enacted by Congress in 1970 to attack organized crime, the Racketeer Influenced and Corrupt Organizations Act makes it ‘‘unlawful for any person employed by or associated with any enterprise … to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.”

That sounds intricate, and it is: RICO is a complex statute. But it’s a powerful one. Courts have described civil RICO as “an unusually potent weapon—the litigation equivalent of a thermonuclear device,” because it stigmatizes the defendant as a racketeer, opens them up to treble damages, and allows for vast discovery of their criminal network. And here, it suits precisely what Trump is doing. Let’s look at two critical provisions:

What is an “enterprise,” for the purposes of the statute? RICO defines it as “any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” What would that be here? Well, it would be Trump and his aides (and potentially Cabinet and sub-Cabinet officials), who have planned and executed his program of extortion and solicitation of bribery. That could be an “association in fact.”

What is “a pattern of racketeering activity,” per the statute? Simply put, it is two or more commissions of “predicate acts,” which are crimes listed in the statute. Trump’s actions fit snugly within these acts. Consider:

Extortion. As I have argued in these pages, Trump has committed state-law extortion felonies through his threats against and coercion of law firms, as well as universities. RICO includes these crimes as predicate acts.

Bribery and its solicitation. Bribery might be the central operating principle of Trump’s second term, from domestic and foreign sources alike. The marketing of a personal meme coin, and the granting of an audience to a select group of the highest contributors, is essentially a way of funneling money directly to the Trump family and to the president himself—as if the buying up of suites at the Trump Hotel, or the paying of millions of dollars to sit near him at Mar-a-Lago, had not already done so. Not to mention a $400 million plane from Qatar.

Obstruction of justice. 18 USC Section 1503 makes it a felony to endeavor to “influence, intimidate, or impede” any officer of the court (this includes judges) and contains an omnibus clause criminalizing the obstruction of the “due administration of justice.” Here, the endeavors are public. Despite the Supreme Court’s order to facilitate the return of Kilmar Abrego Garcia to the United States, the administration has declared that he is never coming home. Stephen Miller has recently threatened to (illegally) suspend habeas corpus unless judges “do the right thing,” and Trump himself has threatened judges with impeachment.

For most of these charges, we obviously lack all the precise details. In the bribery charge, for example, we do not know the exact understandings between Trump and those who just so happen to be lavishing him and his family with expensive gifts and sweetheart development deals. But that is what a lawsuit is for. It will permit discovery of key documents and the ability to depose the key players (who could be subject to perjury charges if they lie).

Federal courts have shown hostility to civil RICO claims, and it is not hard to see why. One predicate crime is “fraud,” and that has deluged courts with civil lawsuits alleging fraud in securities sales and marketing, which for the most part is far from what the statute contemplates. As one court remarked, “Plaintiffs wielding RICO almost always miss the mark.” Another court complained, ‘‘Plaintiffs have often been overzealous in pursuing RICO claims, flooding federal courts by dressing up run-of-the-mill fraud claims as RICO violations.’’

A case against Trump and his associates, however, carries none of these problems. Their actions represent classic examples of organized crime activity: bribery, extortion, and obstruction of justice (although discovery might also look into the possibility of purposeful stock manipulation through constant changes in tariffs, as well as money laundering from Russian sources). And it would fit snugly within the traditional contours of the law. Under RICO, federal prosecution has frequently targeted public officials who use their office for personal gain, including governors, members of Congress, mayors, and state legislators throughout the country.

However, like any recent legal attempt to create some accountability for Donald Trump, this would be no slam dunk.

Critically, in 1981 the Supreme Court immunized presidents from civil damages for actions taken in office within the “outer bounds” of presidential authority. What is that outer bound? We don’t know. But we do know that E. Jean Carroll successfully sued Trump for defamation when, as president, he denied her allegations that he had sexually assaulted her, and that was conceivably good enough to beat civil immunity.

More importantly, while SCOTUS immunized presidents against civil damages, it allowed suits for declaratory and injunctive relief. So even if precedent applies, the case should go forward.

And very significantly, even if the president is fully immunized against damages, his associates are not. Attorney General Pam Bondi just opined that Trump’s acceptance of a $400 million 747 from Qatar was perfectly legal: She has thus made herself part of Trump’s bribery scheme. If staffers are found liable, they could be on the hook for treble damages and attorneys fees. And that could make them vulnerable to settling and testifying.

There are two other significant questions about any such lawsuit:

Who is the plaintiff? Trump’s racketeering is so broad that various aspects might appear to have little to do with one another; threatening law firms with extinction does not necessarily connect with threatening judges. But they are linked: His intimidation of and threats against judges make it more likely that they will rule against targeted law firms and thus assist his extortion. Trump’s bribery scheme assists some firms by funneling work to them while blocking others. So Perkins Coie, Jenner & Block, and WilmerHale all could be plaintiffs in all three areas. Similarly, Harvard University is hurt by Trump’s extortion and his threats against judges.

Doesn’t Trump always seem to beat these raps? Trump has indeed shown himself to be the Teflon Don. Things that would have obliterated other figures slide off him: A New York court ruled that he raped Carroll, and the story lasted less than a day in the news.

But accepting that is a recipe for passivity. According to that line of thinking, no one should protest, no one should bother to vote, no one should contribute money to campaigns or pro-democracy organizations. If there were a silver bullet, someone would have found it already.

Conservatives have learned this lesson well: continue relentless pressure even if it does not always succeed. America’s new authoritarianism did not spring from nowhere; it comes from a decadeslong movement conservatism campaign to subvert democracy, one that used implacable attacks on a variety of fronts even in the face of crushing electoral defeats. Pro-democracy forces would do well to learn such a lesson and not negotiate against themselves. A civil RICO case against the racketeer in chief should be part of any effort to save this country from Trump’s dictatorial aspirations, which are coming closer to reality every day.

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