- The new indictment against Donald Trump refers to six unindicted co-conspirators.
- Prosecutor Jack Smith’s case could be stronger if any of them flipped into cooperating witnesses.
- The last time a prosecutor tried flipping people close to Trump, it didn’t go too well.
Donald Trump didn’t do it alone.
According to the new federal indictment against him, brought by Justice Department Special Counsel Jack Smith, Trump had six criminal co-conspirators. Those people helped him with his failed conspiracy to block Congress from certifying now-President Joe Biden’s victory in the 2020 election and keep him in power, the indictment alleges.
The identity of co-conspirator 6, referred to in the indictment as “a political consultant” who helped put together a plan to put forth fake electors to Congress, isn’t immediately known.
The identities of the other five alleged co-conspirators are more clear.
All of them are fervid Trump allies.
Any of them — if they could be flipped against Trump — could help nail him.
Smith is also overseeing a separate prosecution against Trump and two alleged co-conspirators related to the ex-president’s hoarding of government documents. Notably, he didn’t bring indictments against any of the six co-conspirators in this new case. At a press conference Thursday night, he ignored a question from a reporter who asked him why.
There are a number of possibilities. Smith could have secret immunity deals in place with any of them, or could be negotiating such deals. Maybe he wanted to indict Trump first and reference the co-conspirators to place swords of Damocles over their heads, pressuring them to cooperate in the future. Or perhaps Smith just wanted to do more investigating before bringing more charges.
But it’s clear that cooperation from any of these six people would be extremely valuable to the prosecution.
“The strategy in not charging them now is to put pressure on them and get them to cooperate and ultimately flip on Trump,” Neama Rahmani, the president of West Coast Trial Lawyers, said. “The other alleged co-conspirators could be charged in the future. We just saw that happen in the classified documents case, with a new defendant charged last week.”
Smith could use someone on the inside
As Sarah Krissoff, a former federal prosecutor, told Insider, the charges against Trump are complicated and involve esoteric legal theories. A former president has never been charged before with trying to obstruct Congress from certifying an election. It’s a difficult case to explain to a jury.
“Most folks dont even understand the electoral college,” Krissoff, now a white-collar defense attorney at Cozen O’Connor, told Insider.
The five known alleged co-conspirators are: Rudy Giuliani, Trump’s personal lawyer who baselessly advanced conspiracy theories about the election in court and in public; Sidney Powell, a conspiracy theorist who pushed some of the same theories with Giuliani and on her own; Jeffrey Clark, a Justice Department official who tried open investigations into nonexistent election fraud; and John Eastman and Kenneth Chesebro, two lawyers who tried to overturn the election with discredited legal theories. All of them have been sanctioned by legal bodies or are in the middle of disciplinary proceedings.
Out of those five, only Giuliani has testified before the Washington, DC-based grand jury examining election interference, according to an exhaustive list compiled by CNN. In a statement following Giuliani’s grand jury appearance last month, his spokesperson, Ted Goodman, denied that he flipped against Trump.
“In order to ‘flip’ on President Trump — as so many in the anti-Trump media are fantasizing over — Mayor Giuliani would’ve had to commit perjury because all the information he has regarding this case points to President Trump’s innocence,” Goodman said.
REUTERS/Andrew Kelly
Giuliani, who has many of his own legal problems for trying to overturn the election results, has steadfastly stood by Trump. He’s claimed that he believes Trump has a “good faith basis” for his actions following his election loss. In defamation lawsuits and legal sanctions proceedings, he’s maintained that he had good reason to believe the results were inaccurate.
On Twitter, Powell has maintained the fiction that the election was rigged and Clark continues to express frustration that then-Attorney General Bill Barr didn’t open investigations into the 2020 election results. Eastman has downplayed his role in the White House while allying with right-wing politicians, and Chesebro has maintained a low profile while his attorney argues he was simply doing his job as a lawyer.
Much of the indictment makes the argument that Trump knew the 2020 election wasn’t rigged, but that he plotted to overturn the results anyway.
The indictment doesn’t reference any memos or text messages from Trump laying out elements of his plan, as you might expect in a criminal conspiracy case. Proving his intent, Krissoff said, will involve a lot of trial testimony from other people who were in the room with him.
“This case is gonna be essentially testimony based, this will require testimony of incredibly large number of very powerful people,” Krissoff said.
The testimony of an apologetic co-conspirator who helped Trump out with his plans? All the more persuasive for a jury.
Prosecutors have struggled to get witnesses to flip against Trump
The pressure put on Trump’s associates has echoes of another criminal investigation into Trump, into his finances.
Manhattan District Attorney Alvin Bragg was the first prosecutor to indict Trump, earlier this year. He brought 34 counts of falsifying business records related to hush-money payments made to Stormy Daniels ahead of the 2016 election.
Bragg may still bring more charges against Trump (the ex-president pleaded not guilty and is scheduled to go to trial in March). But the Stormy Daniels charges were limited in scope compared to compared to the overall scope of the investigation.
The office, in an investigation started by Bragg’s predecessor, Cyrus Vance Jr., examined whether Trump and his company broke tax, bank, and insurance fraud laws by manipulating property values. Prosecutors spent years trying to pressure the Trump Organization’s longtime chief financial officer Allen Weisselberg to flip into becoming a cooperating witness, even digging into his children.
Michael M. Santiago/Getty Images
As the investigation was ongoing, Trump publicly sent warnings to anyone who might flip in an investigation.
“I’ve seen it many times. I’ve had many friends involved with this stuff. It’s called ‘flipping,’ and it almost ought to be illegal,” he said in a 2018 interview with Fox News. “You get 10 years in jail, but if you say bad things about something … now you go from 10 years to, ‘They’re a national hero.'”
In the end, Weisselberg never really flipped.
The Manhattan district attorney’s office charged Weisselberg and the Trump Organization with a litany of white collar crimes in 2021. Weisselberg pleaded guilty and testified against the Trump Organization.
But, in a bizarre courtroom display, his testimony appeared deliberately wishy-washy. He coordinated his testimony with the Trump Organization’s defense attorneys and was still on the company’s payroll with the chance of a raise. On the witness stand, Weisselberg testified he never talked with any member of the Trump family about cooking the company’s books. Even the prosecutors who summoned him to testify cast doubt on his under-oath claims.
Prosecutors never did get the evidence they would have needed to bring criminal charges against Trump for his conduct. Instead, the New York Attorney General’s office, which coordinated with the district attorney, brought a civil lawsuit against Trump and his company that remains pending.
It’s easy to imagine a similar situation happening here. Any of the six co-conspirators could make the calculation that it’s better to stick with Trump than turn against him.
AP Photo/Mary Altaffer
After all, Trump is running in the 2024 presidential election. If he wins, he’s promised to purge the Justice Department of perceived enemies and would likely pardon many people in his orbit, just as he did before he finished his first term.
Any other Republican candidate who might win the nomination may also promise to protect Trump and his allies in a bid to get his supporters’ votes.
The co-conspirators may even cross more legal lines and lie to the FBI to protect Trump, risking obstruction charges, as Rahmani, a former federal prosecutor, suggested
“These are lawyers, you would think they’re not as stupid, but you never know,” he said.
On the other hand, if the six people do cooperate, it could make their lives easier.
They have a chance of reaching a deal where they’d plead guilty to lesser charges, or Smith could promise to recommend a lighter sentence in light of their cooperation. The actual sentence is ultimately up to a judge.
The Justice Department could also possibly give them immunity in the case, but Krissoff said that would be unlikely given their important roles in Trump’s plans, Krissoff said.
“For folks who have significant criminal liability, the general philosophy of the DOJ is they make them take responsibility for that conduct and they have to plead guilty,” Krissoff said.
Flipping against Trump, of course, also has its risks. Just look at Michael Cohen, who faces the ire of his MAGA fanbase on the internet every day, pointedly wasn’t pardoned at the end of Trump’s term, and spent years embroiled in various legal controversies.
Turning against Trump, in these circumstances, also guarantees political homelessness.
It is hard to imagine, for example, the left embracing someone like Powell or Giuliani, even if they decided to testify against him.
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