Justice Department could prosecute Capitol rioters under a federal law designed to take down organised crime

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an American flag flies outside the Department of Justice in Washington in March 2019. Andrew Harnik/AP

Federal prosecutors are considering whether to use a federal statute designed to take down mafia rings and organised crime to prosecute the rioters responsible for the January 6 insurrection at the US Capitol, Reuters reports.

The Department of Justice could prosecute the insurrectionists under a law enacted in 1970 known as the Racketeer Influenced and Corrupt Organisations Act, or RICO, that was specifically drawn up to allow prosecutors to go after complex mafia and organised crime operations. It also allows them to seize assets obtained through criminal activities like fraud and money laundering.

In particular, RICO was intended as a tool to go after the ringleaders of organised crime efforts who directed illegal activities from behind the scenes.

RICO prosecutions tend be quite complicated, involve voluminous amounts of evidence, and must face a high bar to prove that the defendants in question constitute a criminal enterprise and committed multiple crimes.

Furthermore, DOJ leadership in Washington, DC, must sign off on any potential use of the RICO law, Reuters said. President Joe Biden’s nominee for attorney general, Judge Merrick Garland, has yet to be confirmed by the US Senate.

If prosecutors charged insurrectionists with racketeering, they’d need to prove that a group of those charges involved a “criminal enterprise” versus individuals acting on their own or deciding to siege the Capitol at the spur of the moment.

Investigators are probing whether the Capitol riot was coordinated in part on social media platforms, and looking at evidence from social media that rioters may have planned to descend on state capitols and the US Capitol with violent intentions against lawmakers.

Some extremists, including people associated with far-right groups like the Proud Boys and Oath Keepers, have been charged with obstruction of a government proceeding — in this case, the January 6 joint session of Congress to count electoral votes — which is classified as a racketeering offence, per Reuters.

One of the federal prosecutors who most aggressively used the RICO law to take down Italian-American organised crime operations in New York City was then-US Attorney Rudolph Giuliani in the Southern District of New York during the 1980s.

More recently, Giuliani has been a key player in furthering Trump’s efforts to overturn the election and spreading baseless election conspiracies that House lawmakers now say led to the insurrection. The House impeached Trump on a charge of inciting the insurrection on January 13.

Giuliani said that he could not serve on Trump’s defence team for his upcoming impeachment trial in the US Senate because, as a speaker at the Save America rally that took place the morning of the insurrection, he is a material witness to the charge of incitement that Trump faces.

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