Is It Possible To Take The Election Challenge Straight To The Scotus?

Since publishing Thomas McInerney's Theory last night--which included the suggestion that the Trump legal team would try to take their challenge directly to the SCOTUS, I've been having second thoughts. The SCOTUS is only rarely a court of original jurisdiction--meaning, it normally hears appeals from lower courts (including state supreme courts, as we've seen already in the PA litigation). It seems more realistic then that the Trump team would file in a federal court, get a ruling and, if necessary seek to fast track the case to the SCOTUS.

This morning I was mulling these issues over, but somewhat inchoately. Commenter Andy S. attempted a rather lengthy comment on these issues, one which sharpens the issues, and so I've decided to include his comment as a separate post. 

As you'll see, Andy S. advocates for a RICO case. As readers will be aware, I'm a bit of a RICO skeptic--not generally, but with regard to most of the cases that have been discussed on this blog. In this case, I don't see how a RICO lawsuit would get Trump to the desired goal--timely relief to prevent the election from being decided in favor of Biden. The major stumbling block, that I see, however, is arriving at a definition of the "enterprise" that would be the subject of the case. Whatever my personal views, I find it difficult to believe that any court would be willing to accept that the Democrat Party--as a national entity--is an "enterprise" for purposes of RICO. And the Trump team has said they won't be suing Dominion. I'll leave my comments at that, since the whole business of enterprises is complex. However, before anyone criticizes me on this score, please understand that in my professional career I did successfully argue in cases for the existence of an enterprise in fact--so I'm not opposed to any of this on principle. I'm just sketpical in this case. But read on and see what you think.

Here's Andy S., with some very slight formatting and editing:

RICO Redux

It'd be a foolish exercise to keep repeat-reporting polling stories--although there is encouraging news out there. So, on a day when there's not much else, but on which I did link to Maria Bartiromo's promise of Russia Hoax prosecutions after the election, let's briefly return to RICO.

I'm not going to try to provide information here. I'm just offering the views of professionals. You'll need to read between the lines a bit, but the line at the bottom is simply this: RICO was dreamed up with a very specific problem in mind--Mafia type organized crime. While it does have theoretical applicability beyond that, as a practical prosecutive matter by far the better case theory to go with--if at all possible--is a much more traditional conspiracy approach. It depends on circumstances, but that's always going to be the general rule, and it's basically DoJ policy as well. Conspiracy cases are far more straightforward, and any juror can understand a conspiracy.

This, in my view, is absolutely beyond question as regards the Russia Hoax. Regarding the Biden Inc. case, we're hampered because we simply don't know the full scope of it--recall, Biden Inc. appears to have been incorporated into an already existing money laundering investigation, according to Rudy Giuliani. And that money laundering investigation would include other criminal violations that are hidden from our view at this time. Nevertheless, I'd be very surprised if any effort to do a RICO would be made.

Fitting in with that, there was a revealing lawyerly exchange on Twitter today regarding the general utility of RICO. Read it and see how actual prosecutors view RICO:

RICO

For reasons that I don't fully understand--some sort of mystique, I guess--many conservative commenters on  the internet are convinced that RICO (Racketeer Influenced and Corrupt Organizations Act) can be applied to all sorts of political corruption. This conviction is often accompanied by a conviction that a failure on the part of DoJ to charge under RICO is itself evidence of corruption in DoJ. This is simply not the case. 

Unfortunately, a number of commenters here seem to believe that the Biden Crime Family can be prosecuted under RICO. I have to take some responsibility for this, since I adopted Rudy Giuliani's colorful name, "the Biden Crime Family." Let me be clear. I am not now saying that a RICO prosecution of the Bidens and their associates is not possible. The possible criminal violations may, in fact, fulfill the technical requirements of the RICO statute. Nor do I claim any expertise in RICO matters.

However, I believe that longstanding DoJ guidelines make it unlikely that RICO would be applied to any of those persons who have committed crimes either--as with former officials of the FBI, DoJ, or the Obama White House--in the course of opposing the presidency of Donald Trump or simply committed crimes by enriching themselves by trading on their public positions of trust in the US government.

Here's why. Longstanding DoJ guidelines (DoJ Justice Manual) militate against any expansive use of RICO when the interests of justice can be served by prosecuting the underlying crimes. Here are some selections from the Justice Manual. As you will see, there is--in essence--a presumption against using RICO when there is no "special RICO purpose," which usually refers to "gang" type organizations in a traditional sense. You can disagree with DoJ's policy in this regard, but it is what it is. The DoJ view is that RICO was never intended to replace traditional conspiracy prosecutions. Please read these guidelines carefully: