FACT CHECK: Fact Checking AOC’s Claim That RICO Is Not A Crime

Christine Sellers | Fact Check Reporter

During a Mar. 21 impeachment probe into President Joe Biden, New York Democratic Rep. Alexandria Ocasio-Cortez claimed Racketeer Influenced and Corrupt Organizations (RICO) is not a crime but rather a “category.”

Verdict: Misleading

While three experts told Check Your Fact that Ocasio-Cortez’s claim is false, another said he had “no issue with her statement.”

Fact Check:

During the Mar. 21 impeachment probe into Biden, Ocasio-Cortez claimed RICO is not a crime but rather a “category” while questioning Tony Bobulinski, the ex-business partner of Biden’s son, Hunter Biden. During the exchange, the congresswoman asked Bobulinski to name what potential crimes the president is allegedly guilty of committing. The probe was led by the House Committee on Oversight and Accountability.

The claim is misleading. According to the U.S. Department of Justice’s (DOJ) website, the RICO statute is Title IX of the Organized Crime Control Act of 1970. Although the statute focuses on “the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce,” it “is sufficiently broad to encompass illegal activities relating to any enterprise affecting interstate or foreign commerce,” also according to the DOJ.

In addition, the statute “enhances existing criminal punishments and creates new causes of action for acts done as a part of an organized criminal enterprise,” according to the website of Cornell Law School’s Legal Information Institute. While the statute originally took aim at the mafia, it is now used to target “many notable criminal enterprises,” the same website indicates.

Likewise, according to a 2021 document available via the Congressional Research Service (CRS), “RICO condemns any person who uses for or invests in, or acquires or maintains an interest in, or conducts or participates in the affairs of, or conspires to invest in, acquire, or conduct the affairs of an enterprise, which engages in, or whose activities affect, interstate or foreign commerce through the collection of an unlawful debt, or the patterned commission of various state and federal crimes.” (RELATED: Joe Biden Claims Robert Hur Brought Up His Son’s Death)

RICO violations can carry multiple punishments, including up to 20 years in prison (or longer depending on predicate offenses), according to the same document.

Three experts told Check Your Fact that Ocasio-Cortez’s claim was not accurate, another said he had “no issue with her statement.”

Zack Smith, a senior legal fellow at the conservative Heritage Foundation, told Check Your Fact via phone that Ocasio-Cortez’s claim about RICO just being a category is “inexact.”

“AOC’s statement that [RICO] is just a category is inexact. RICO does not necessarily criminalize conduct that is not already criminalized, but if certain conditions are met, it allows for the imposition of enhanced penalties, either civil or criminal,” Smith said.

Reiterating that Ocasio-Cortez’s claim “is not really accurate,” Smith noted RICO is a “separate provision and it would be charged as a separate offense in [an] indictment. Someone could be charged with RICO as a count in [an] indictment. Someone can be charged under the RICO statute, so in that sense, it is a separate criminal offense,” he explained.

Michael Mears, an associate professor at Atlanta’s John Marshall Law School, shared a similar perspective.

“If she’s trying to minimize a RICO criminal statute and say that’s not a crime, then she’s wrong. RICO has different crimes attached to it, but the RICO statute has specific punishments. Each count carries a prison term of no less than 5 years and up to 20 years. In Georgia, there’s a wider range, [so] a larger number of crimes that support RICO convictions,” Mears explained to Check Your Fact by phone.

“Georgia’s RICO statute is broader than the federal law, which was passed in 1970. Georgia’s [statute] was passed in 1980 [because lawmakers] wanted to make it broader and more easily prosecuted.” 

“[In] Georgia, in order to sustain a RICO conviction, it only takes one of those underlying crimes available, [while] the federal law requires two [crimes] in order to sustain a RICO conviction,” Mears added.

G. Robert Blakey, an emeritus professor at the University of Notre Dame’s Law School, said Ocasio-Cortez is “misinformed.”

“She is misinformed. RICO was based on the antitrust and securities statutes: criminal and civil sanctions for those violations of antitrust and securities statutes,” Blakey explained via email.

Jeff Grell, attorney and author of “Grell on RICO,” offered a different perspective, however.

“I understand what she’s saying. A RICO violation can’t occur unless an underlying ‘crime’ is committed, e.g., wire fraud, murder, extortion, etc. Sometimes those crimes are referred to as ‘predicate acts’ under RICO. Only certain crimes qualify as ‘predicate acts’ or ‘acts of racketeering,'” Grell told Check Your Fact via email.

“So, I think she’s basically saying that only certain crimes are categorized as or qualify as predicate acts under RICO. In addition to proving predicate acts, a RICO prosecutor or plaintiff also needs to prove enterprise, operation/management, pattern, etc. The commission of a predicate crime is only one element of a RICO violation. RICO is a crime to the extent it is predicated on criminal activity, but the actual crimes are set forth in their own statutes. A RICO violation requires proof of more than just the predicate crime.”

“In short, I’ve got no issue with her statement,” he said.

Besides the recent Biden impeachment probe, RICO has also been mentioned in relation to Trump’s indictment in Georgia, where he is accused of alleged 2020 election interference.

Check Your Fact has contacted Ocasio-Cortez’s office and multiple legal experts for comment and will update this piece accordingly if one is received.

Christine Sellers

Fact Check Reporter