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Nancy Solomon: It's The Brian Lehrer Show on WNYC. I'm Nancy Solomon from the WNYC newsroom. On today's show, we'll take a closer look at three school districts in New Jersey that are attempting to roll out a policy that would tell parents if their kids are showing signs of changing their gender identities. Then we'll talk about all things retirement, when to do it and how, and we'll end the show about an effort to do a census on fireflies, the bugs across New York, but first, Rudy Giuliani and RICO.

Before he was Trump's personal attorney, before he trafficked in conspiracy theories, even before he was mayor of New York City, Giuliani was a prosecutor. As US Attorney for the Southern District of New York, he utilized RICO, the Racketeer Influenced and Corrupt Organizations Act as part of an aggressive strategy to bring down the mob. Four decades later, Giuliani, along with Donald Trump and 17 other co-defendants faces organized crime charges in Georgia under the state's RICO law for his role in the conspiracy to overturn the 2020 election. Today, we'll dig into those charges and explain RICO.

Joining me now is Jill Wine-Banks, MSNBC legal analyst and former Watergate special prosecutor. Jill is also co-host of the podcasts, #SistersInLaw and iGen Politics, and the author of the book, The Watergate Girl: My Fight for Truth and Justice Against a Criminal President. Jill, welcome back to WNYC.

Jill Wine-Banks: Thank you. It's always a pleasure to be with you. Nice to meet you, Nancy.

Nancy Solomon: Yes. Listeners, we can take your calls on the Georgia charges against Giuliani and others, the history of RICO as utilized by Giuliani when he was US Attorney for the Southern District of New York in the 1980s, and any other aspect of our conversation, 212-433-WNYC. That's 212-433-9692. If you can't get through on the phone, you can send a text to that number or tweet @BrianLehrer. Before we get into those charges in Georgia against Rudy Giuliani, the former president and others, let's take a step back and talk about what RICO is and how it came to be. Jill, give us a definition and an overview.

Jill Wine-Banks: The definition is Racketeer Influenced Corrupt Organization. It's basically a law that allows you to say that an organization is so corrupt and that its purpose is so criminal, that it is a corrupt organization within the law. Then you look at who is participating in the organization and you look for underlying crimes. Both the Georgia law and the federal law specify certain crimes that will qualify as someone in the group has to have committed one of those crimes in furtherance of that corrupt organization. That's, I think, the simplest way to explain it. The Georgia law is actually even broader than the federal law in terms of what it allows and its penalties. It's a very good way for a prosecutor to tell the full story. If I could, I can give an example.

Nancy Solomon: Sure.

Jill Wine-Banks: Fani Willis only has jurisdiction over Fulton County, except under RICO, in the Georgia RICO, she can name certain criminal conduct that happened outside of Fulton County as part of her story. The computer hacking that went on in Coffee County is part of her indictment, and she wouldn't be able to do that without the overarching RICO conspiracy. It helps her to tell the jury all of the different things that the alleged conspirators, including Donald Trump and your former mayor, and actually my former colleague from the organized crime section committed along with many others, including unfortunately many lawyers.

Nancy Solomon: It's interesting, this idea of enabling a prosecutor to tell a story, because it seems from my expert spot is sitting on the couch watching TV, it seems that prosecutors often can present evidence that shows say a defendant's state of mind or a motive or why they were doing something. What prevents prosecutors from telling that story if they weren't using RICO?

Jill Wine-Banks: Well, every piece of evidence has to be relevant to an element of the crime. When you mention state of mind, which is often proved by circumstantial evidence, it's an element of certain crimes that you have a corrupt intent and therefore it's up to the prosecution to prove that. Similarly, you can't just introduce bad acts by a person just because you're prosecuting him for crime one in your state.

Even though he did the same thing in another state, you can't introduce that except with certain exceptions and one certainly would be under the RICO law if that organization was formed in a way and this was in furtherance of that conspiracy. Conspiracy in general allows you to introduce a lot of things that wouldn't be relevant to the actual, if you were only doing the underlying crime.

If for example, the crime was computer trespass, which is one of the underlying crimes in the Georgia RICO indictment, you could only prove that crime, but you couldn't prove that they also did fraudulent electors. You couldn't prove those things because it has nothing to do with the computer hacking, but it does with the overall conspiracy to take down the election. That's why it's admissible.

Nancy Solomon: It’s so interesting. I don't think it's an overstatement to say that Giuliani, in his time as a prosecutor was seen as a trailblazer for the way he made use of the RICO Act. We have a clip from the archives. This is from 1987 and it's Giuliani reflecting on coming up against the mob.

Rudy Giuliani: At that point, we all thought that there was a possibility of putting together a case on the commission of the mafia, but it was on the drawing boards at the time, and there were an awful lot of people, including people within law enforcement that thought that it was totally unrealistic, ridiculous, could not be done.

Nancy Solomon: Jill, how did he do it and what did he achieve with this strategy back in the 1980s?

Jill Wine-Banks: Well, let's look at the federal RICO law, which he was talking about, which was passed originally after I joined the organized crime section as part of a way to attack the mob. Back then, we called it either the mob, the mafia, or LCN for La Cosa Nostra. It was used really only in those circumstances, but it quickly became apparent that the law was broad enough to cover other corrupt organizations. There are certainly others than that who engage in fraudulent activity who are formed for that purpose. What he was able to do, and what other prosecutors were able to do, was to take the law and use the terms to get at corrupt business organizations that use fraud, for example, as their method of operation.

Nancy Solomon: New Yorkers, of course, are very familiar with Rudy Giuliani, but how important is he nationally in terms of this rise of using RICO to prosecute cases?

Jill Wine-Banks: Well, I think we've seen many uses of RICO beyond him, but he certainly was-- I would have to say he was a pioneer who's now reaping the benefits of his own creativity because it's being used against him. I'm not sure I can say who was the first to do it or who did it the most, but certainly, he earned a reputation and made it famous. I think it's ironic that he is now the victim of his own creativity.

Nancy Solomon: Yes, it's definitely ironic. We're going to talk a little bit more about the Georgia case in a moment, but just sticking with the history of RICO for a minute. There have been some really high profile famous cases of defendants, the Hell's Angels in 1979, Major League Baseball in 2002, Trump University in a civil RICO class action lawsuit in 2013, and FIFA, the international governing- -body of soccer in 2015. This gives you a sense. RICO can really be applied quite broadly, right?

Jill Wine-Banks: Exactly and of course, the history you've laid out makes it clear that defenses being argued are not going to succeed about, “Well, this is an unusual use of this. This is a persecution of a political activity, of free speech.” All of those involve free speech. This indictment starts out saying he can lie, everybody can lie, but you can't use it for corrupt purposes. I think that's important to keep in mind is that these are for crimes, and there have to be overt acts in furtherance of the conspiracy. It's not enough that you just agree to have a coup. You have to do something in furtherance of it. What you get prosecuted for is the acts in furtherance.

Nancy Solomon: Let's go to the phones. We have Kevin in Denver, Colorado on the line. Hello Kevin.

Kevin: Hey, hello. How are you? Your guest may not specifically be able to answer this particular question, but what's the history between Trump and Giuliani? Does the relationship go back to when Giuliani was mayor of New York? Did Giuliani maybe cut-- we saw he was a cutthroat mayor, but did he give breaks to Trump in his real estate development efforts in New York City?

Jill Wine-Banks: That's such a great question. I don't know specifically what benefits he reaped, but based on what we now know about their current relationship, although it's suffering right now because of legal fees, but what we know about how they related in the Trump administration and what we know about both of them in terms of making money, one might suspect that there was some symbiotic relationship between them. They certainly have known each other for decades. Donald Trump always made it a point to be close to the mayor and people of power so it would be a shock if they hadn't had a close relationship. We also know-- I mean, we saw the video they made together, both of them dressed as women and you don't do that with someone you're not close with.

Nancy Solomon: Kevin, thanks for your question. Sticking with history for a moment and then we'll move on to Georgia. You were involved in the prosecution of Richard Nixon and the Watergate case. Were RICO charges ever considered in that case?

Jill Wine-Banks: No, I don't think we ever thought of that. We had a very clear path to what were the real crimes there. It wasn't quite the racketeer influenced corrupt organization, although in retrospect, of course, one might think it was because of the plumbers unit doing all sorts of bad acts, the break-in at Daniel Ellsberg's psychiatrist office, the multiple attempts to break into the Watergate office building, all of which were basically unsuccessful. They made it in, they just never got what they were looking for, and got caught on the second or third attempt depending on whose books you're reading.

I think we had such a clear path that we took more of the Jack Smith approach of making it against the most credible people, the most at-fault people, and keeping it to the obstruction of justice, which we consider the most serious of crimes, which included perjury and other acts.

Nancy Solomon: Interesting. Let's take another question from a caller. We have Bezo in Manhattan. You're on the line. Good morning.

Bezo: Yes, hi. At the risk of sounding naive in front of all these brilliant legal theorists, Professor Blakey at Cornell, who I think came up with this whole concept of RICO. This is a simple question, and I don't mean to be naive, but what's the difference between the boy scouts and a criminal organization or a church group? This DA down there, she was representing some drug gang and then she ends up living with the leader, this gangster, and now she's coming up with this crazy, crazy theory. How is this a criminal organization?

Jill Wine-Banks: Obviously, that's not a serious question, but I will describe why it is a racketeer influenced corrupt organization, because they gathered for an illegal purpose, which was to deny the votes to many people, to use multiple conspiracies and methods to achieve that, and they took actions in violation of law to accomplish it. The theory fits perfectly to all the elements of the crime as it is written. It will be up to a jury to determine whether the evidence supports all of those allegations.

Nancy Solomon: All right, thanks for your call Bezo, and let's stay with that. Now let's talk about the Georgia case. Rudy Giuliani, along with Trump and the other co-defendants have been charged under Georgia's RICO law. As you said, this is about the conspiracy to overturn the 2020 election. Let's first listen to a clip of Fulton County District Attorney Fani Willis, who brought these charges against Giuliani, Trump and the others.

Fani Willis: Georgia, like every state, has laws that allow those who believe that results of an election are wrong, whether because of intentional wrongdoing or unintentional error, to challenge those results in our state courts. The indictment alleges that rather than abide by Georgia's legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia's presidential election result.

Nancy Solomon: It's one thing to expose the big lie for what it is and it's another thing to liken Trump and company to an organized crime syndicate. What do you think of Willis' legal strategy?

Jill Wine-Banks: I think it was inevitable that she would do this. She has had a lot of success in bringing other cases, including against the educators of Georgia as racketeer influenced corrupt organization. The meaning is no longer the mafia, although in ways, maybe it applies here. I think the real thing is that it is an organized crime, because it was organized, there was a top and there were people who all gathered together to achieve the same thing. In a conspiracy like this, you don't all have to know what each element is doing.

The people who were fake electors knew what they were doing on the fake elector scheme. They didn't have to know about the pressure on Mike Pence. They didn't have to know about phone calls to state legislators or to secretaries of state. Those could all be separate. It seems to me that it's a very good strategy in this case to have an all-encompassing criminal experience for the jury to evaluate and to see that it was not just one thing, but that it was many different conspiracies linked together in an organization. I think it was a very good way to proceed.

Nancy Solomon: What do you think of the argument many of the defendants are making that as lawyers or in the case of Mark Meadows as a chief of staff, that they were working for the interests of their clients, which they're obligated to do?

Jill Wine-Banks: Let's talk about the lawyers who participated in this. They were not doing their clients a service when they made arguments that they knew had no legal basis. If they had had any facts to support, for example, that this was a fraudulent election or that it was stolen unfairly, then they had a place to present that, in court. They tried 60 times and they failed 60 times because they have no evidence. Donald Trump promised that he was going to reveal evidence that would make everyone convinced that the election had been stolen. He canceled that hearing this week, that press conference, because there is no evidence. If there's no evidence of fraud, then there are certain things you cannot proceed to argue.

Lawyers have an- -obligation to push the limits of the law and to make the best representation they can, but when they cross the line to participating in creating fake electors with no basis for doing that-- and by the way, they point to a episode in this ‘60 election, which was the first time that Hawaii voted. The election was so close, there were a dispute and a recount was going on. There was a dispute over only 400 votes separated the two candidates.

There were a group of people who created a, in case we actually flip this with the 400 votes, which they ended up doing, we need to have our people certified. They went forward with electors for the Kennedy candidacy, which were not at that point-- at that point, Nixon was declared the winner in Hawaii. But the election was overturned and the judge who reviewed it said, "It's a good thing they did that because if they hadn't, they would have missed the deadline that is set by the Electoral Count Act," but that was a very different case.

That was a case where there was only a few 100 votes difference. It was being contested. It was pending a decision. In this case, they tried 60 times and were rejected. They had no evidence of any fraud. The elections had been certified and there was nothing more to be done, so they kept on going with pressure on Pence, with pressure on the Georgia Secretary of State, and with obviously, the ultimate violence on January 6th.

Nancy Solomon: Interesting analogy in a historic example. Okay, we have to take a short break. My guest is Jill Wine-Banks, MSNBC legal analyst, former Watergate special prosecutor and I'm Nancy Solomon sitting in for Brian today, and when we come back, we'll take your calls. Stay with us.

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It's The Brian Lehrer Show on WNYC. I'm Nancy Solomon from the WNYC newsroom, filling in for Brian Lehrer who is off today. My guest is Jill Wine-Banks, MSNBC legal analyst, former Watergate special prosecutor, co-host of the podcasts #SistersInLaw and iGen Politics and the author of The Watergate Girl: My Fight for Truth and Justice Against a Criminal President. We're talking about Rudy Giuliani and RICO in light of the charges against the former New York City Mayor and personal attorney to Donald Trump, and the case that's going on in Georgia right now.

First of all, let's just take a moment to fact-check the call we had from Bezo in Manhattan. I'm told that the attack on DA Willis comes from Donald Trump, who said she lived with a drug dealer, and CBS has debunked Trump's claims entirely. Just wanted to get that sorted out.

Jill Wine-Banks: Yes, I didn't know whether to respond to him in a confrontational way to say that his facts were wrong. There is no evidence of anything he said. If this were online, we'd say he was a bot put there by someone from the other side, so apologies to Fani Willis for his having said that.

Nancy Solomon: I think we've sorted it out now. Let's go to actually a very good question from a text that has come in from a listener asking, "What happens to Georgia law and the case if the trial is moved to federal court? Do all the defendants get moved?"

Jill Wine-Banks: Ooh, that's such a good question, and it's an interesting one. First of all, there are not going to be 19 defendants in a courtroom. It would be unbelievably difficult to manage. I don't even know whether there is a courtroom large enough to hold that many defendants and lawyers. In Watergate, we used the Ceremonial Courtroom in DC, which was the largest court available and we packed that courtroom, there was not an inch of space, with only five defendants and one prosecution table, so it's going to be separate trials.

Some could, I suppose say, "I don't want to be moved. I want to be tried in Georgia." Some of the Georgia people may feel more comfortable in a Georgia courtroom and they all made move for severance because honestly, if I were a defendant, I would want to be judged not in the same room with Donald Trump, and by affiliation with him, be viewed differently than I would if I were there on my own. It's an interesting question.

In terms of anybody who moves, I don't think the motion to move to federal court will be granted for a variety of reasons, which if anyone wants to know, please ask and I will explain, but if it were, it would still be tried under Georgia law. The prosecutors would still be the Georgia prosecutors, but they would be operating under some federal rules, which would bar cameras in the courtroom unless there's enough pressure put on Congress and the Supreme Court Chief Justice Roberts and the Judicial Conference to allow cameras in the courtroom.

I for one, have just written an op-ed in the Detroit News and am very much in favor of cameras in the courtroom. There is no argument against them that holds water anymore. The argument that people play to the cameras, that the defendant, that the lawyers, that the witnesses, just hasn't proved to be true. You can see that from the George Floyd murder trial, where Derek Chauvin was tried with cameras on every witness. There was no problem with the cameras being in the courtroom, and no danger to the jury because they were never shown.

Nancy Solomon: Wow. I just was imagining what it'll be like for the whole country to be watching that trial. That is going to be quite an event if it comes to that.

Jill Wine-Banks: It will be.

Nancy Solomon: Yes. Let's talk about one of Fani Willis' other cases in Georgia. She's been blazing another path in the way that RICO has been used. She's using it in one of her big cases against YSL, a collective of rappers, sometimes described as a criminal street gang. What do you think about that legal strategy?

Jill Wine-Banks: I'm not so familiar with that case, but based on her previous success record, and based on the allegations in it, it does seem to be a perfectly valid way to proceed if the allegations are true. If it is true that they are more like a street gang, then that should be-- Under RICO, you have to have a pattern of racketeering activity. It's not enough that there's just one racketeering act and the racketeering acts that are specified in Georgia law and federal law. In federal law, there’s a lot of wire fraud, mail fraud, but there's also can be murder, can be a lot of other criminal activities. In Georgia, it includes counterfeiting, which included counterfeiting the electoral certifications. I think there's no reason not to use where there is indeed a pattern of racketeering, at least alleged, this law. That's what it was meant for.

Nancy Solomon: I'm sorry. Do you think that there's a possibility that Giuliani or any of the other lawyers involved in this case could be disbarred as a result of these charges?

Jill Wine-Banks: You mean, in addition to Giuliani, because he has--

Nancy Solomon: Yes.

Jill Wine-Banks: Yes, absolutely. I think aside from the defendants who are charged, a conviction would automatically basically disbar them. I think some of the lawyers representing witnesses could end up disbarred because of their breach of their ethical obligations to their clients. We've just seen a dramatic reporting of the Trump employee number four, who ended up giving explosive testimony that led to the superseding indictment about the obstruction of justice and the attempted destruction of security tapes.

He switched after the Trump-paid lawyer was fired, after he got independent counsel who represented the best interests of the client, not of the person paying for the representation. Some of those lawyers may suffer at least an investigation for violation of their ethical obligations to their client.

Nancy Solomon: In terms of Giuliani, do you think that his previous legal experience certainly using RICO so effectively, that that's going to help him defend himself in a way that the other lawyers, the other lawyers for the lawyers might not have that edge? Do you see him having an edge or is that long gone?

Jill Wine-Banks: That's a hard question to answer because I don't know him personally, but if he had the edge, it seems like it's gone because if it wasn't, why did he behave the way he did? Why did he do all the things he did? Why did he display loyalty to Donald Trump? If he had the intellect and character, he wouldn't have done what he did. He kept on repeating the big lie saying things he knew were not true in the same way the Fox News did and ended up paying almost a billion dollars in damages because of repeating things that knew and admitted it knew weren't true.

For a lawyer to go into court and do it, gets you disbarred because you have an obligation not to lie to the court, but it also does, I think, suggest that he does not have any advantage. If he could get himself to thinking clearly, he would be trying to form a deal for a plea deal. I think he may know enough to be a valuable witness and could do himself some good to by protecting himself and hopefully, he's seeing that.

Nancy Solomon: All right. Let's squeeze in one last call before you have to go. We have Rena in Hoboken on the line. Good morning, Rena.

Rena: Good morning. Jill, love your commentaries all the time. Just great.

Jill Wine-Banks: Thank you, Rena.

Rena: There is a law in Georgia passed by the state Senate, I believe, to eliminate any prosecutor from a case that they can remove the prosecutor if they want. How would that work?

Jill Wine-Banks: I think it's dangerous and we've seen without a law, similar, Governor DeSantis has now fired two independently elected district attorneys for reasons that have to do with, he just doesn't like what they're doing, and it's political not moral. In this case, there would be an appointed independent commission who will review the conduct of the charged district attorney. Again, district attorneys are elected by the people, and it seems to me it's mostly up to the people to take care that they not be elected or reelected if they don't like what they're doing. It seems like a bad premise for a law to allow someone else to say, "Well, I don't like what they're doing. I don't care that you elected them."

In this case, if Governor Kemp appoints a truly independent body, then there might be some safety in it. There could be times where someone is abusing their power and should be looked at and investigated, but unless they're abusing it in a criminal way, it seems to me it's up to the people. If Governor Kemp or the commission doesn't like that someone isn't prosecuting enough low level marijuana cases, and that's one of the reasons that was given in Florida by Governor DeSantis, it's up to the voters to say, "Yes, we want those cases prosecuted."

These were things that the candidates said while they were running. The people knew, so it seems to me it's wrong to allow this commission to take action. I think it's a bad law. I don't know whether it will get challenged, and hopefully, it won't have bad consequences. It would be extremely politically dangerous to fire Fani Willis at this point because you don't like that she has used her power to indict 19 people guilty of, or allegedly guilty of crimes.

Nancy Solomon: That's a scary thought of what would happen across the country if that happened. Rena, thanks so much for your call and we're going to have to leave it there.

Jill Wine-Banks, MSNBC legal analyst and a former Watergate special prosecutor, is co-host of the podcasts, #SistersInLaw and iGen Politics, and the author of the book, The Watergate Girl: My Fight for Truth and Justice Against a Criminal President. Thanks for joining us, Jill.

Jill Wine-Banks: Thank you so much, Nancy.

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