State-breaking as Organizational Crime: Prosecuting Political Criminal Enterprise in the Presidential After-Life of the Trump Administration

• In Event: Presidential Panel: The Trump Aftermath: The Future of Criminology in a Divided Nation

Abstract

Charles Tilly classically used the criminological understanding of organized crime to explain the creation of nation states. This paper extends the analysis of what Tilly called state-making to the process of state-breaking, including incitement of insurrection, during the recent presidency of Donald Trump. Yet American criminal law provides a valuable statutory resource to counter such presidential behavior. This paper reprises the role of structural sociology and criminology in helping to conceptualize and pass the Racketeer Influenced and Corrupt Organizations Act [RICO]. This Act, with its central concept of criminal enterprise, is uniquely equipped for the prosecution of the organized crimes of elite politicians and their devastating effects on our democratic institutions. The Office of Legal Counsel’s [OLC] opinion during the presidency of Donald Trump was misleadingly interpreted as preventing the criminal prosecution of a sitting president in ways similar to the OLC’s misuse of the infamous opinion about the legality of torture during the Bush Administration. The refusal of citizens and criminologists to identify Trump and other U.S. Presidents as accountable for criminal enterprise, and to thereby forsake the unique prosecutorial potential of the RICO statutes, has denied this nation of its power to effectively incapacitate the use of the American presidency for organized criminal purposes.

Authors

• John Hagan, American Bar Foundation

• Bill McCarthy, School of Criminal Justice