Overt Acts and Predicate Acts, Explained

No, Fani Willis Is Not Making Tweets Or Phone Calls Into Crimes. But Maybe Her Indictment Is A Bit Indulgent And Gratuitous.

After months of anticipation, Donald Trump and 18 people who thought it was a good idea to trust Donald Trump have been indicted by a grand jury in Fulton County, Georgia. Fulton County District Attorney Fani Willis — notoriously fearless, particularly of cameras — is prosecuting them on a 41-count trek through Georgia criminal law. But one law leads every story and falls from every lip — RICO. Yes, Ms. Willis has charged the defendants with conspiracy to violate Georgia's Racketeer Influenced and Corrupt Organizations law, commonly known as RICO, modeled on the infamous federal statute.

Georgia RICO’s statute contains a core prohibition:

It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

The indictment charges the defendants with violation of the conspiracy component of the statute:

It shall be unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. A person violates this subsection when:

1. He or she together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy;

After the preliminary charging language, the indictment launches into a 52-page, 161-act list of acts committed by the defendants:

This has led to much comment and confusion. Some of it is contrived and in bad faith, some of it reflects honest concern or confusion. The thrust of it is this: wait, some of the acts on that list aren’t crimes, are they? And aren’t some of them speech protected by the First Amendment? Here’s a not-good-faith example:

Political theater and propaganda aside, there are some reasonable questions here: how can a tweet (like act 101) or statements at a press conference (Act 3) be a crime?

The answer is that they’re not crimes — or, at least, that’s not what the indictment claims. They’re overt acts.

Overt Acts: Originally A Bulwark Against Tyranny, Now Mostly For Exposition

So what is an overt act?

A criminal conspiracy is an agreement by two or more people to do an illegal thing. An overt act is some step, however small, intended to promote that illegal goal. Many conspiracy laws require — like the Georgia RICO statute here — that the government prove that at least one member of the conspiracy committed one overt act. There’s no need to prove multiple overt acts, and no need to prove that each defendant committed one.

Why are overt acts a thing? The requirement is a reaction to the tyrannical experiences with laws that criminalized mere thought or discussion. For instance, the Treason Act of 1351 made it a crime to “compass or imagine the death of our Lord the King,” something that could be and was interpreted to cover mere discussions or idle talk without action. The Treason Act of 1351 gradually became understood to require proof of some overt act beyond mere talk, though there are disputes about whether that was mere tradition or a legal requirement, and about whether it reflected sensibilities about the adequacy of evidence of intent or some sort of minimum action requirement to qualify as a crime.

At any rate, the concept that conspiracy should require an overt act was well-developed at the time of the Constitution, as reflected in the Constitutions’ carefully narrow definition of treason:

No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

All of this reflected several traditions and sensibilities. The first was recent memory of how accusations of treason and conspiracy had roiled England and led to violence and tyranny. Another — given the notoriously hard-drinking life of the Founders — is that what a bunch of idiots agree to do in their cups, and what they are interested into putting into effect in the morning, are two very different things. As one scholarly work puts it:

Its primary purpose is to show the operation of the conspiracy. Put another way, the requirement of an overt act represents an acknowledgement that talk (the agreement) is cheap. A second purpose of the overt act is to provide a locus pœnitentiæ, or a chance for a conspirator to withdraw from the conspiracy without accruing any liability. The overt act requirement is intended to limit the definition of conspiracies and ensure that only people who have actually conspired are indicted. The requirement should, for example, prevent mere braggarts from being prosecuted for “agreeing” to rob a bank or kill a political figure with whom they particularly disagree.

So you can think of an overt act as a sort of evidentiary requirement, and overt acts as evidence of a criminal conspiracy, not as the crime themselves. These days the custom is for prosecutors to use the overt act requirement to tell the story of the case at length in the indictment. Prosecutors also use it as a gambit to make it more likely that evidence will be admitted at trial (it’s a strong case to admit evidence of something if you’ve called it out as an overt act), and often try to connect every defendant to an overt act, even though that’s not a requirement, just so the defendant can’t say at trial “look, I didn’t even commit an overt act.”

Overt Acts Are Evidence Of The Criminal Conspiracy, Not The Crime Themselves

Once you view overt acts as a sort of evidence, it’s easier to see why they don’t have to be crimes themselves, and why they can even be acts that would otherwise be not only legal but protected speech.

The First Amendment protects my right to indulge in nationalistic and racist rants against, say, the Belgians. If my friends and I engage in loud calls to kill all the Belgians, and walk up and down my Belgian neighbor’s house observing the entrances and exits, and if I ask my priest whether it is morally and scripturally appropriate to kill the Belgians, all of those things are legal and protected by the First Amendment. But if my Belgian neighbor winds up murdered in his bed, those things are all evidence that I did it and of my intent when I did it, and also potentially overt acts in a conspiracy with my anti-Belgian friends to do it.

American law is quite clear on this distinction. “The overt act, without proof of which a charge of conspiracy cannot be submitted to the jury, may be that of only a single one of the conspirators, and need not be itself a crime.” (Braverman v. United States, 317 U.S. 49 (1942). Georgia law is the same.

Somewhat less clear is the concept that an overt act — since it is only evidence of the criminal conspiracy, not the crime itself — may be speech protected by the First Amendment. Back 1957 in Justices Black and Douglas, two of the most important thinkers on the First Amendment, had a rip-snorting debate on this concept in the dissent to one of the anti-Communist cases, arguing rather persuasively that at the least the government should have to prove at least one overt act not protected by the First Amendment in order to convict someone of conspiracy. But the Supreme Court has not adopted that rule, and the current law seems to be this:

[I]t is not the "speech" that is made criminal, but rather the agreement, and whether the overt act is constitutionally protected speech would be irrelevant.

This has continued to be the rule, notably during the Great War On Terror:

Moreover, even if Abdel Rahman's words were protected speech, it is not his words but his agreement that is criminalized in the Count Two conspiracy. In United States ex rel. Epton v. Nenna, 446 F.2d 363 (2d Cir. 1971), the Court of Appeals rejected the argument that the defendant's "conviction for conspiracy to riot violated his rights under the first amendment because the overt acts alleged in the indictment were all constitutionally protected speech." Id. at 366. The Court of Appeals disagreed with the premise of the defendant's argument and concluded that, in fact, some of the overt acts were actually unprotected. Id. at 367. Additionally, however, the Court reasoned that, when a defendant is convicted of conspiracy to commit an unlawful act, "it is not the `speech' that is made criminal, but rather the agreement, and whether the overt act is constitutionally protected speech would be irrelevant." Id. at 368.

Is this right? Were Black and Douglas right in 1957? How, exactly, does this mesh with the complex and ill-defined First Amendment exception for speech inherent to criminal conduct? Hell if I know. But that, for now, is the law.

But Wait, There’s Also Racketeering Acts

So: to the extent the Georgia RICO indictment lists mundane and non-criminal things as overt acts, or even protected speech, that’s all perfectly legal, for better or worse. But Fani Willis has chosen to draft the indictment in a way that causes further complication and confusion by putting two different things in the same list of acts: overt acts in support of the conspiracy (which don’t have to be crimes) and racketeering acts (which do have to be crimes).

The Georgia RICO act makes it illegal to engage in a “pattern of racketeering activity.” That’s defined elsewhere as committing two or more crimes from a list of specified crimes. So, that list in the indictment reflects things that are just overt acts, and things that are identified as specific crimes constituting acts of racketeering and that are also overt acts:

Call me an insufferable pedant or, worse, a former federal prosecutor, but for clarity I would have separated the things that the government says are racketeering acts from the things just being identified as overt acts, particularly in a case of such historical interest and in an area with such potential for confusion. The overt acts are evidence of the conspiracy; the criminal acts are predicate crimes for the RICO enterprise. They’re different and it would be clearer if they were more clearly listed differently.

Leaning Into The Controversy, Or Indifferent To It?

So: that’s how, in charging a conspiracy to violate Georgia’s RICO statute, you wind up with a list consisting of both specific alleged criminal acts and mundane acts, including acts otherwise protected by the First Amendment.

In my view, the Georgia RICO indictment is gratuitous, self-indulgent, and careless of the appearance of legitimacy. Yes, under current law protected speech acts can be overt acts. But that doesn’t mean a prosecutor should gratuitously include such acts. There are so many arguable crimes that serve as both overt acts and racketeering acts, and so many communications that expressly incorporate fraud and deceit, that it would have been easy to draft an indictment to leave out tweets and speeches and the like. Putting them in seems like leaning into the pro-Trump talking points and accepting accusations of overt political bias.

The indictment also suffers from a lack of framing language — language that puts in context the difference between lawful and unlawful political acts. Jack Smith did a good job of this in the D.C. indictment against Trump, which similarly set out to tell a complex story:

The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.

Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:

That sort of table-setting costs nothing and contributes tremendously to promoting public understanding of the distinction between protected political speech and unlawful fraud. Similarly, Smith went out of his way to identify overt acts that were clearly fraudulent — that had the wrongdoing evident and built-in.

The different styles reflect different prosecutorial cultures. Federal prosecutors are, on average, much more cautious and risk-averse than district attorneys. Federal judges are somewhat (not nearly enough) more willing to force federal prosecutors to follow rules and call them out on bullshit. By contrast, state judges — who are often elected and used to seeing colleagues who are “soft on crime” lose their seats — tend to let district attorneys get away with much more. This can promote a defiant attitudes, with local prosecutors believing that any barrier to doing whatever they want to do is a grave illegitimate injustice.

Before Ms. Willis took office, an appellate court rebuked the Fulton County District Attorney’s Office for making a “bizarre” argument defending a conviction, and they leaned into it as a point of pride, making “Bizarre for Justice” t-shirts.

Fani Willis is a darling of people who hate Trump right now. I think Trump and his team committed crimes, and that the indictment captures some of them. But — as has been common for the last five years — Trumpian cases tend to flip the script and make people who would be skeptical of law enforcement into credulous law enforcement fans, and vice-versa. That leads us to ignore cultural problems with prosecutors. Some of the drafting of this indictment strikes me as gratuitous, unsound, unnecessarily invoking First Amendment and political concerns, and kind of sloppy. But I don’t actually think it’s because Fani Willis is an anti-Trump zealot — at least not primarily. I think its because she’s a classic DA — kind of arrogant, kind of entitled, dismissive of arguments and concerns about how her office wields power, confident (usually justifiably) that judges won’t hold her to account, and tending to view constitutional and statutory rights as obstacles rather than as the accepted rules.

In a perfect world, fans of Fani Willis would think about how this approach works when applied to people who aren’t famous or rich or conservative. For instance, how many people can defend themselves if Fani Willis decides to add them to a 28-count indictment for RICO where jury selection alone has taken eight months? Can she - can any DA — be trusted to wield the RICO statute fairly, or will they inevitably resort to using it to strongarm court reporters for using the wrong font to make more money? In that same perfect world, Trump supporters (or anti-anti-Trump folks) would have an epiphany — holy shit, if they can do this to Trump and his crew, what are they doing to regular folks? Is my trust in police and prosecutors misplaced?

Isn’t it pretty to think so.