Eastman: Post-Enron Statute Could Be Used to Round Up Lawfare Conspirators

Time to deploy it against the lawfare, election illegality, and other nationwide conspiracies that have targeted President Trump and his supporters in their efforts to Make American Great Again.

Dr. Eastman, himself a target of lawfare since his representation of President Trump challenging illegality in the 2020 election, is a senior fellow at The Claremont Institute and a former, long-time professor of constitutional law.

The Racketeer Influences and Corrupt Organizations Act, commonly known as “RICO,” was passed by Congress in 1970, part of that year’s Organized Crime Control Act. It was designed to reach not just the foot soldiers of organized crime organizations, but the crime bosses themselves.

Although it did that directly by allowing charges to be brought against the leaders of “criminal enterprises,” it also did so indirectly by allowing prosecutors to go after low-level criminals and even drivers, doormen, etc. with threats of hefty, 20-year felony sentences and offers of reduced-sentence plea deals in exchange for turning state’s evidence against the mob bosses.

Such tactics work. Faced with the potential of decades in prison, many “loyal” foot soldiers – particularly those who merely observed rather than engaged in crime – find that the price of continued loyalty is simply too steep. So they sing. They implicate mid-level mobsters, who then sing even more loudly to implicate the bosses. The most famous example of this is the Five Families case in New York in the 1980s, prosecuted by then-U.S. Attorney Rudy Giuliani, which led to the conviction and imprisonment of several top Mafia bosses.

The mob bosses didn’t take too kindly to foot soldiers who sang, however, and many of those who auditioned by singing for reduced sentences ended up “swimming with the fishes.” So in 1982, a new statute was passed, imposing severe, 20- or 30-year criminal penalties for witness intimidation. That statute is codified at 18 U.S.C. § 1512. Following the Enron scandal, the statute was amended in 2002, adding subsection (c), which imposes criminal liability on “whoever corruptly … alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.” The crimes covered by subsection (c) carry the same 20-year prison sentence that is applicable to the witness intimidation prohibited in the prior subsections of the statute.

Twenty years is a hefty sentence, and it should provide prosecutors with ample leverage to apply to get a lot of low-level operatives of nationwide conspiracies to start singing and exposing the leaders of the conspiracies. Moreover, unlike RICO, ex ante proof of a criminal enterprise would not be required.

Unlike Biden DOJ’s (Unlawful) Use of 1512, Trump DOJ Has Plenty of Evidence to Support 1512 Charges

Think about how 1512(c) might have been (and still might be) used against the “Russia, Russia, Russia” hoax scandal from the 2016 election. Kevin Clinesmith pled guilty to one count of making a false statement and received a sentence of only one year probation and no prison time. But his false statement was based on his altering a document that was used to obtain a FISA warrant to spy on Carter Page, an advisor to the Trump campaign that year. In other words, he “corruptly… alter[ed] … a … document … with the intent to impair the [document’s] integrity or availability for use in [the] official proceeding” before the FISA Court. 1512(c) is directly applicable, and one can only imagine how willing Mr. Clinesmith might have been to trade a potential 20-year felony sentence for exposing the scope of the conspiracy that is only now getting exposed.

Or how about using 1512(c) to target whomever was responsible for hiding classified and sensitive investigative records from Special Prosecutor Jack Smith’s efforts to target President Trump in burn bags which were then placed in obscure rooms, apparently to prevent their discovery, as the House Judiciary Committee recently disclosed. “Corruptly … concealed,” seems to be the case. Indict for that 20-year felony, and whoever concealed those documents will likely have a lot to say about why that was done, and at who’s request.

Then there is the 2020 election controversy itself, and lots of potential uses of 1512(c) to begin rolling up the chorus of singers in that case such as files deleted in Georgia that would expose the duplication and counting of ballots. Software upgrades in Colorado that destroyed election records in that state long before federal law permitted (and the exposing of which Mesa County Clerk Tina Peters was convicted and egregiously sentenced to nine years in prison despite being a whistleblower for that federal crime).

Or just recently, the disclosure by investigative reporter John Solomon that the 20,000 or so phony, Chinese-made driver’s licenses seized upon entering the country at O’Hare airport have been destroyed, likely in an attempt to prevent that documentary evidence from being used to charge the document destroyers with a 20-year felony—a huge inducement to squeal about the election fraud purpose of those phony drivers licenses and who orchestrated it.

Another recent scam likely fits under the 1512(c) umbrella as well. Just last week, Senator Joni Ernst exposed internal documents from the Small Business Administration depicting that SBA employees allegedly used a code word—Benghazi—to hide the fact that the SBA was illegally providing Covid Paycheck Protection Program grants to Planned Parenthood affiliates who were ineligible to receive such funds. In other words, “corruptly … concealed” the true recipients of the grants.

The common thread for all of these examples is just that – a thread. A proverbial loose thread that, if pulled, can unravel the entire sweater or, in these cases, the entire conspiracy.

The Department of Justice and its U.S. Attorneys across the nation should start with the low-level folks who altered, destroyed, or concealed the relevant documents. Indict them under 1512(c) and its potential 20-year prison sentence, and then be ready for all the information that they will undoubtedly and quickly be willing to offer up, implicating the more senior culprits in the several criminal conspiracies. That’s how Rudy Giuliani successfully prosecuted those mob bosses in New York nearly half a century ago using RICO. Section 1512(c) is the new RICO. Time to deploy it against the lawfare, election illegality, and other nationwide conspiracies that have targeted President Trump and his supporters in their efforts to Make American Great Again.