Monday, September 28, 2015

Can RICO Be Used Against the FFI?

There has been a lot of talk about bringing RICO charges against the fossil fuel industry. Read an interesting article on this topic here. This raises the question, is such a think even legally possible? Considering the success of the government in pursuing RICO charges against the tobacco industry, the answer certainly seems to be 'yes' on the face of it. But, let's look more closely.

The first issue we need to look at is the definition of 'racketeering'. After all, RICO stands for "Racketeer Influenced and Corrupt Organizations," (18 US Code Chapter 96). Basically, racketeering is continued criminal activity to protect and advance an organized crime 'business'. There is a long list of specific activities under this definition. Originally intended to address activities of organized crime syndicates, it has been used against a number of non-mafia entities, including Michael Millikan, Major League Baseball, pro-life activists, the LAPD, FIFA, and, of course, the tobacco industry. Clearly, you don't have to be some kind of mafia for the RICO Act to apply. If you are engaged in a continuing criminal activity to further or protect an illegal business, you have engaged in racketeering.

But, that isn't enough to violate the RICO Act. Prohibited activity under the act is defined as:
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.

(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

The act specifically states there must be at least two violations, one that occurred after the act was passed and another one within ten years of the first violation.

I am not a legal mind, but let me play here. After all, it isn't up to me to bring charges so what's the harm?

The thing that immediately jumps out at me is the phrase, "the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce."

Whoa! If you are engaged in racketeering and it affects interstate or foreign commerce you are liable under the RICO Act. Well, there is no doubt the fossil fuel industry affects both interstate and foreign commerce. The only question then becomes, are they engaged in illegal activity for the purpose of protecting or advancing criminal business?

The big break in the tobacco case came when it was found corporate executives perjured themselves in front of Congress. They had colluded to deceived Congress for the purpose of protecting their business. And, it was found they were intentionally committing fraud by engaging in a conspiracy to deceive the government and the public on the dangers of smoking.

How does that compare to the FFI?

Well, we now know they have engaged in a conspiracy to confuse the public and Congress on the dangers associated with burning fossil fuels. I think that certainly qualifies as racketeering. But, is there a criminal business operation in progress that they were protecting or advancing? After all, simply using gasoline and coal is not, in and of themselves, a crime. They have a right to protect and advance legal activities, although they can't use illegal activities to do so. So far, as far as I can tell at this point, RICO does not apply, even if other criminal statutes do apply.

What needs to be shown is that they were engaged in a criminal business. I'm sure if we were to dig into their activities we would easily find that is exactly the case. They willingly and knowingly engaged in business activities fully aware it would bring harm to the public and the U.S. government. That, by itself, is sufficient. But, let's take a look at the "section 2, title 18, United States Code" referenced above:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

18 U.S. Code, Section 2
The fossil fuel industry has testified before Congress, and has provided funds to individuals to testify, that the science was not correct and there is no danger from manmade climate change or that it does not exist. We now know the fossil fuel industry was fully aware this testimony was not truthful, making it perjury. This perjury was committed for the purpose of interfering with any actions the government might take to ameliorate the threat and would negatively impact the profits of the fossil fuel industry. Additionally, they have used the mail and wire systems in the commission of these acts. My understanding is that constitutes mail and wire fraud.

In other words, the fossil fuel industry has violated the RICO Act on a continuing basis and should be charged accordingly by the U.S. Department of Justice.

But, that isn't all. Take a look at the subparagraphs b through d. These subparagraphs specifically prohibit the actions of persons to further the interests of the organized criminal activity. And, in this case, that is a long list. In addition to the fossil fuel corporations, the US DoJ needs to charge the individual players in this activity, such as the Cato Institute, the Heartland Institute, the George C. Marshall Institute, the NIPCC, the International Climate Science Coalition, Richard Lindzen, Roy Spencer, Christopher Monckton, and many others who are equally guilty of violating the act.

As I stated, I am not a lawyer and it is not up to me to charge anyone, but the evidence seems very clear from where I'm standing - a massive violation of the RICO Act has been committed and continues to be committed. It is time for the government to charge the perpetrators.

Will it happen? I'm not going to lose sleep while waiting for it. But, at the same time, I spend many years hoping the government would charge the tobacco industry with criminal activity and thinking it would never happen. And, we all know how that turned out.

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