Twitter debates erupted this week on a surprising topic: What are the relative advantages of charging racketeering versus conspiracy when considering wide-ranging criminal conduct over a long period? Would the analysis be different for a mix of financial crimes like wire fraud, tax fraud and money laundering than more nationally significant crimes — like defrauding the United States by defeating the lawful functions of the Federal Election Commission?

This is the kind of question I might expect to hear around the water cooler in the Brooklyn U.S. Attorney’s Office, or across the river in the Southern District of New York — and maybe in a few other Department of Justice (DOJ) outposts in major cities.

But trending on Twitter? Such is the new normal of the Trump era.

The debate flows from substantial overlap among racketeering and conspiracy.

Prosecutor shot selection — that is, the decision which crime to charge — depends on a mix of factual and legal considerations. In addition, prosecutors consider practical realities like the hassle involved in approvals up the food chain that depend on which statute is charged.

User-Friendly Conspiracy Statutes

Those considerations tend to lead prosecutors to seek indictment for conspiracy rather than the Racketeer Influenced and Corrupt Organizations (RICO) act when confronted with facts supporting both a conspiracy and racketeering conviction. That is why many, if not most, of the drug trafficking organizations charged in federal court could be charged as racketeering enterprises — but very few are.

The main reason prosecutors opt for conspiracy is that it is easier to prove. To convict for conspiracy, the government need only prove the existence of an agreement among two or more persons to violate the law, the defendant’s joinder in that agreement, and commission of at least one act in furtherance of the conspiracy.

In contrast, to convict a defendant for racketeering, the government must prove much more. Under RICO, the government must prove the existence of “an association in fact,” which engaged in a pattern of racketeering activity, including commission of at least two predicate acts — that is, crimes from a specific list set forth in the statute. It must further show that the predicate acts were related, happened within a ten-year period, and threatened to continue. And, of course, the evidence must demonstrate that the defendant was an employee or associate of the enterprise who either conducted or took part in the conduct of the pattern of racketeering activities. As a result, the jury instructions for conspiracy are significantly more simple — and easier to satisfy — than the jury instructions for racketeering.

Some Racketeering Advantages

But sometimes racketeering charges are the best course. So what drives a decision to charge RICO?

There are a couple of factors that might lead toward the path of RICO:

State Law Crimes: RICO makes it illegal to engage in a pattern of crimes that include, among other things, a long list of state crimes — which means that you can charge an enterprise that commits these crimes in federal court, even if the underlying crimes are purely state law crimes. So, for example, a gang that commits a series of murders as part of its operations can be charged as a racketeering enterprise even if there is no federal hook for these murders. This has been a primary factor in driving federal RICO prosecution of Italian mafia organized crime cases in New York over the past 40 years.

Statute of Limitations: RICO allows prosecutors to charge crimes that happened so long ago that the law does not usually permit them to be prosecuted any longer — provided the enterprise’s pattern of activity extends back to when the crime happened. This can be handy for prosecuting criminal enterprises that have persisted for years without being held accountable.

Association Evidence: With RICO’s higher standard of proof comes greater latitude in the evidence admissible at trial. For example, prosecutors might offer evidence of defendants spending time together at a social club to prove the existence of the “association in fact.” Ravenite, the club where John Gotti hung out, featured prominently in his prosecution.

Avoiding the Multiple Conspiracies Trap: Charging a complicated conspiracy with many underlying crimes runs the risk the jury might conclude that there were multiple conspiracies, not one overarching conspiracy. Multiple conspiracies can mean there isn’t a single agreement to violate the law — and thus the defendants aren’t guilty of the charged conspiracy. RICO avoids this risk because the whole structure of the racketeering statute allows charging an enterprise that encompasses a broad pattern of crime.

Telling the Story: Most importantly, RICO is sometimes just the best way to tell the story — which is how you win over a jury. RICO was adopted to empower prosecutors to ferret out organized crime root and branch, from kingpin to henchman, by criminalizing participation in the sprawling enterprises that do not fit neatly into traditional concepts of conspiracy, and which are not defined by a single crime or type of crime. For this type of criminal enterprise, RICO is the only fit because it allows the prosecutor to weave together all facets of that complex enterprise with a common thread.

One Final Barrier to RICO: the DOJ Approval Process

There’s one last consideration that weighs on prosecutors: the approval process. Because of the potency of RICO and the risk of abuse, RICO charges must be reviewed and approved by the Organized Crime and Racketeering Section at Main Justice in Washington, D.C. The process is unpleasant for the front-line prosecutor — with folks who know little about the case aggressively second-guessing investigative and charging decisions. Conspiracy charges require no such approval from Washington.

Where Does that Leave Us?

So what do all these considerations mean for the various investigations into the Trump family and the people around them? It mostly depends on the facts. The publicly-reported allegations include a dizzying array of possible crimes, spanning decades — insurance and tax fraud, money laundering, bribes of foreign officials, and campaign finance violations, perhaps involving foreign governments.

No statute, conspiracy or racketeering, could cover that full gamut of potential crimes. If the Trump Organization truly indulged in the years of financial crimes and cover ups that some have alleged, racketeering seems like a strong fit. But it would be a stretch to fit campaign-related crimes into that racketeering enterprise absent a claim that the Trump Organization is not only a racketeering enterprise, but has effectively taken over the U.S. government.

Conspiracy has proven to be the prime vehicle for the Special Counsel — with good reason. While it doesn’t carry the satisfaction of weaving the full story with just one thread, using a series of conspiracies lightens the load for proving the case, and tells the story in bite-sized chapters in the most efficient and effective way, without introducing the challenges of Main Justice pre-clearance that would come with RICO.

The Southern District, on the other hand, is a group of prosecutors and agents well-practiced in the art of RICO. And their investigative threads — hush money and other suspect financial transactions — more readily lend themselves to racketeering charges. Where they go remains to be seen.

Image: People outside of Trump Tower after it re-opened to the public following the departure of U.S. President Donald Trump on August 16, 2017 in New York City. (Photo by Spencer Platt/Getty Images)