Can Valerie Plame file a civil RICO suit against Rove, et al?

[glaucon]

http://politikonzoon.com/

The short answer: Probably not. But there’s some wiggle room.

I’m no lawyer, and I’m sure I’ll be quickly corrected if I’m way off base, but the idea is intriguing, to say the least.

There are several thresholds under RICO that must be met. Jeffrey E. Grell, who has been prosecuting and defending federal civil RICO claims for more than 13 years, operates the website RicoAct.com (http://www.ricoact.com). Here are some of the more salient benchmarks that must be met, according to Grell, in order to go after the BushCo mafia:

1. A RICO claim cannot exist in the absence of criminal activity.

No doubt the hardest requirement to meet. But the jury, and the GJ, is still out on whether Rove and Libby broke the law in outing Plame. But many RICO actions occur under mail and wire fraud statutes:

The mail and wire fraud statutes are very broad. Some creative lawyers have succeeded in arguing that the mail and wire fraud statutes have been violated by fact patterns that superficially appear to give rise only to claims of negligence, breach of contract, and other actions giving rise to common law rights. If a RICO claim is based only upon violations of the mail or wire fraud statutes, however, courts are likely to subject the claims to stricter scrutiny. Courts look more favorably upon RICO claims based upon true criminal behavior, such as bribery, kickbacks, extortion, obstruction of justice, and clearly criminal schemes that are advanced by the use of the mails and wires.

This would seem to indicate that an actual criminal conviction may not be necessary. Mail and wire services fraud seems to be a good description of the conspiracy to out Plame and discredit Wilson by negligence and breach of contract.

A good question for any Legal-Beagles: Assuming for the moment that the act which clearly harmed Valerie Plame and her job with the CIA was not criminal, would clearly criminal acts such as perjury and obstruction of justice that are committed in order to cover up the original act, make this a RICO case?

2. RICO addresses long-term, not one-shot, criminal activity.

Not only must a RICO claim be based upon criminal activity, but the criminal acts must constitute a “pattern” of criminal activity. A single criminal act, short-term criminal conduct, or criminal actions that bear no relationship to each other will not give rise to a RICO claim. The United States Supreme Court has ruled that criminal actions constitute a “pattern” only if they are related and continuous. In order to be “related,” the criminal acts must involve the same victims, have the same methods of commission, involve the same participants, or be related in some other fashion. A pattern may be sufficiently continuous if the criminal actions occurred over a substantial period of time or posed a threat of indefinite duration. The former patterns are referred to as closed-ended patterns; the latter patterns are referred to as open-ended patterns. Accordingly, even if you have been injured by a criminal act, you will not have a RICO claim unless that criminal act is part of a larger pattern of criminal activity.

Sounds good to me. According to Grell, the pattern has to occur over a period of at least one year. Rove talked to Cooper on July 11, 2003. No problem.

3. Your claim may be barred by the statute of limitations if you discovered or reasonably should have discovered your injury four or more years ago.

Still smooth sailing.

There are more requirements under RICO, but I think a cursory glance at some of the toughest makes it clear that it is not entirely out of the question. I myself would find it deliciously ironic if the current White House mafia/cabal is prosecuted under a statute originally meant to give muscle to prosecutors who go after the mafia, and which has been used of late to go after environmental and other activist groups.

-glaucon