The Atlanta Journal-Constitution
Why Fulton prosecutors eye data breach
Legal experts see racketeering charges as increasingly likely.
A Fulton County special grand jury is looking closely at an election data breach some 200 miles south of metro Atlanta.
That suggests prosecutors are seriously weighing racketeering charges as they probe efforts by former President Donald Trump and his allies to overturn the 2020 elections, legal experts say.
Jurors publicly disclosed that they were examining the Coffee County incident for the first time late last month, an acknowledgment that District Attorney Fani Willis’ criminal investigation once again has expanded.
The development was disclosed in a petition for the testimony of Sidney Powell, a Texas-based lawyer who briefly worked for the Trump campaign after the 2020 election. The document cites the GBI’s recently launched probe into the Coffee County breach.
Days later, the grand jury signed off on a subpoena seeking documents from the Atlanta IT services firm Sullivan Strickler. Jurors are requesting evidence of any communications or contracts with Powell, who hired the company to work in Coffee County, and L. Lin Wood, an attorney who challenged election results in Georgia and elsewhere.
On Jan. 7, 2021, a day after Trump supporters ransacked the U.S. Capitol, four Sullivan Strickler technicians traveled to Coffee County and copied confidential data from voting equipment. Recently released security camera footage shows the group being let into the local elections office by Cathy Latham, then the chairwoman of the Coffee County GOP. (Latham recently was named a target of the Fulton investigation because of her role as a fake Republican elector.) The elections data copied by the Sullivan Strickler eventually was shared with Trump allies and conspiracy theorists.
Revelations about the breach have been made public as part of litigation in a separate, ongoing election security lawsuit.
To veteran Atlanta defense attorney Steve Sadow, the reason why the Fulton County grand jury, which is tasked with examining potential criminal interference in Georgia’s 2020 presidential elections, would be interested in an incident as far away as Coffee County is obvious.
“RICO, RICO, RICO,” he said, using the acronym for the Racketeer Influenced and Corrupt Organizations Act.
Mobsters and school teachers
The anti-racketeering-law allows prosecutors to seek charges against people who participate in repeated misconduct in the name of protecting an enterprise, which could be a gang, an organization or interest.
Passed by Georgia lawmakers in the early 1980s to address “the increasing sophistication of various criminal elements,” the statute mirrors federal legislation that was created to pursue the mafia. Locally, it’s successfully been used against street gangs, an assisted suicide network, a former DeKalb County sheriff who assassinated his political rival and, most famously, Atlanta Public School teachers.
Under Georgia’s RICO law, which legal experts say is broader than the federal statute, prosecutors must prove a pattern of racketeering activity conducted in the interest of an enterprise. District attorneys must show at least two crimes that were committed to benefit the enterprise, known as predicate acts.
Should they decide to pursue
RICO charges here, prosecutors could deem the Trump campaign — or the presidency itself — the enterprise, experts say.
Sadow said that not all predicate acts have to have been committed in Fulton County — or even in Georgia. As long as Willis can prove that at least some occurred on her home turf, she can make a RICO charge as broad as she’d like, he said.
Sadow, who is representing the rapper Gunna in another RICO case being pursued by the Fulton DA’s office, is among the law’s critics who argue that prosecutors have overused it far beyond its intended scope.
“I think (Willis) believes that RICO is the all-embracing, universal means by which to put an end to crime, which with all due respect is just nonsense,” Sadow said.
Defense lawyer Emily C. Ward said even though a political campaign is a far cry from the Vito Corleones and Luca Brasis that RICO was designed for, racketeering potentially could apply in this case.
“It’s not too much of a stretch to say that it appears that overturning Georgia’s election results was the goal,” said Ward. “So disparate acts that were done in concert by the same group of folks to further that goal could potentially get you to racketeering.”
Willis publicly has acknowledged that she’s considering RICO since the very beginning of her elections investigation. It was included in a February 2021 list of a half-dozen state laws she said might have been violated in the aftermath of the 2020 elections.
‘I’m a fan’
The veteran prosecutor is wellversed in the statute.
Willis became famous in 2015 for successfully using the law to secure 11 convictions and 21 guilty pleas from teachers and administrators implicated in the Atlanta Public Schools test-cheating scandal.
Since being sworn in as DA in January 2021, she’s used RICO multiple times, most recently to pursue the gang Young Slime Life that allegedly includes several well-known rappers, and a separate group named Drug Rich, which is accused of burglarizing the homes of celebrities and athletes.
“I’m a fan of RICO,” Willis said at a recent press conference. “And the reason that I am a fan of RICO is I think jurors are very, very intelligent … They want to make an accurate decision about someone’s life. And so RICO is a tool that allows a prosecutor’s office and law enforcement to tell the whole story ... so that ( jurors) can have all the information they need to make a wise decision.”
Indeed, RICO allows prosecutors to introduce evidence that, without racketeering charges, would not be admissible in court.
A spokesman for the Fulton DA’s office declined to comment for this story.
Recent court filings seeking the testimony of out-of-state witnesses for Willis’ elections investigation have cited “multistate, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.”
Some legal experts see that as evidence that prosecutors are serious about potential RICO charges. They also point to the March 2021 hiring of John Floyd as an adviser to the DA’s office. The Atlanta civil litigator widely is considered to be one of the nation’s leading authorities on racketeering and conspiracy law.
Beyond RICO, Willis has indicated she’s also examining a similar state law for the elections investigation: conspiracy to commit election fraud. To pursue that charge, prosecutors would need to prove the existence of an agreement, even a tacit one, to violate election laws, as well as an overt act to further that agreement.
Computer crimes
Norm Eisen, the lead author of a Brookings Institution report on the Fulton investigation, pointed to at least two state laws that could apply to the Coffee County breach as predicate acts under RICO: computer trespass and computer invasion of privacy. (The GBI has stated that it’s conducting a criminal investigation of computer trespass, a felony with a maximum sentence of 15 years.)
To prove computer trespass or invasion of privacy, Eisen said prosecutors would need to gather enough additional evidence to
establish that access to the voting machines was obtained without proper authority and that copying elections data constitutes a prohibited removal of information as laid out by state law.
“I don’t think that we have enough public information yet to make the determination whether this works as part of a larger RICO or conspiracy case, or whether it could be a freestanding, separate count,” said Eisen, an ethics expert who served as general counsel to House Democrats during Trump’s first impeachment trial. “My educated guess is that owing to the apparent role of an Atlanta firm and Atlanta individuals, there’s likely sufficient jurisdictional basis.”
Ward said that details will matter here, such as which public officials signed off on bringing in the SullivanStrickler employees. Criminal acts, she said, “don’t have to be done under the table.”
“You can be an employee, and if it goes towards a criminal act or conspiracy to commit some sort of criminal act, it can still be part of it” under RICO, she said.