Time to Indict Trump's Co-Conspirators in D.C.

There's no reason to wait any longer

At long last, after an eight-month hiatus, control of the D.C. federal indictment of Donald Trump has returned to District Judge Tanya Chutkan. The case charges the former president with four felonies for the events leading up to and on January 6, 2021 and efforts to overturn the 2020 presidential election. Trial proceedings have been on hold since last December while Trump appealed his claims of presidential immunity to the U.S. Supreme Court.

Now the case is back before Judge Chutkan and she can begin moving it forward toward trial. She’s not wasting any time; in the first 24 hours after she regained jurisdiction she denied two of Trump’s motions that were filed last year and set a status conference for August 16. One of her primary tasks will be sorting out the effect of the Supreme Court’s immunity decision on the charges and evidence in the case.

While Judge Chutkan and the parties wrestle with the scope of presidential immunity, there’s one more step special counsel Jack Smith should take now: return a superseding indictment adding Trump’s co-conspirators as defendants.

There’s No Reason for Trump to Be Alone

When Smith brought his case for the events of January 6, he indicted Trump alone. By contrast, the Georgia state case based largely on the same events charged nineteen defendants, including Trump. A case of that size, with nineteen defense attorneys all filing motions and making arguments, is inherently slow and unwieldy. Even before the case was sidetracked by allegations over the DA’s potential conflict of interest, it was destined to move at a glacial pace.

Special Counsel Jack Smith (CBS News)

Smith took a different approach: he charged only the former president. He listed six co-conspirators but chose not to charge them. By charging Trump alone, Smith streamlined the prosecution and gave himself the best opportunity to move the case quickly and get it to trial before the 2024 presidential election.

Some have argued that seeking to have the case tried before the election was inappropriate, an act of political “lawfare.” I disagree. The public has an important interest in seeing criminal charges resolved and justice done. In Trump, Smith was faced with a unique defendant: one who could be in a position one day to shut down his own prosecution. That unprecedented possibility obligated Smith to do all he could to see the case was resolved before Trump might gain the power to kill it. And there’s a compelling public interest in letting the voters know whether a candidate in the current presidential election is criminally culpable for trying to overturn the last one.

But despite Smith’s best efforts, it’s now clear there will be no trial before the election. That’s primarily thanks to the Supreme Court, which dragged its heels for months before issuing its profoundly misguided decision granting Trump some of the immunity that he sought. There is no longer enough time for Judge Chutkan to resolve the immunity questions and all other pre-trial matters before the end of the year.

If Trump wins in the fall, he will order his Justice Department to drop the case and all of this will be moot. But if he loses, we are looking at a trial sometime next year, or possibly even in 2026. (Despite the Supreme Court’s immunity decision, it seems almost certain that enough of the case will survive to allow it to proceed to trial eventually.)

The election deadline and corresponding need to fast-track the case are now off the table. And that means it would be a good time for Jack Smith to revisit charging some of Trump’s co-conspirators.

The Six Unindicted Co-Conspirators

The D.C. indictment of Trump identifies six so-called unindicted co-conspirators — individuals accused of participating in the conspiracy but not charged in the current indictment. A conspiracy charge requires two or more human actors to be identified as taking part in the conspiracy, but there’s no legal requirement that they all be charged at the same time.

Prosecutors may treat someone as an unindicted co-conspirator for a number of reasons. Sometimes the conspirator has already struck a deal and pleaded guilty to the charges and don’t need to be indicted. Prosecutors may want to continue the grand jury investigation of some individuals and so they hold off charging them for now. There may be legal or evidentiary barriers to charging them. The individual may have been granted immunity for the conspiracy and thus can’t be charged. Or, as was presumably the case here, prosecutors may want to simplify and streamline their case by charging only the principal bad actor, with plans to come back later for the lower-level players.

Consistent with Justice Department policy, Smith did not name Trump’s unindicted co-conspirators and identified them only by numbers. But based on the descriptions of their roles and actions, five of the six have been identified:

Co-Conspirator #1 – described as an attorney who spread false claims about election fraud, is Rudy Giuliani.

Co-Conspirator #2 – described as an attorney who developed a plan to use Mike Pence to overturn the election results, is John Eastman.

Co-Conspirator #3 – described as an attorney who spread claims of election fraud that even Trump agreed sounded “crazy,” is Sidney Powell.

Co-Conspirator #4 – described as a former Justice Department official who sought to use DOJ to persuade states to overturn their election results, is Jeffrey Clark.

Co-Conspirator #5 – described as an attorney involved in the fraudulent electors scheme, is Kenneth Chesebro, a lawyer who worked with Eastman and Giuliani.

Co-Conspirator #6 – described as a political consultant who assisted with the fraudulent electors scheme, is the one whose identity is not yet 100% clear. The most likely candidate is Mike Roman, director of election day operations for Trump’s 2020 campaign. (Roman’s lawyer in the Georgia state case filed the motion to disqualify DA Fani Willis that derailed the prosecution, at least for the time being.)

These same six individuals were indicted as co-conspirators with Trump in the Georgia state case, where Chesebro and Powell have already pleaded guilty.  Giuliani, Eastman and Roman were also among those indicted in a state case in Arizona based on the scheme to overturn the election results there. (Trump is an unindicted co-conspirator in that case, although there are interesting recent reports that the grand jury wanted to indict him.) Chesebro has been indicted in Wisconsin on similar charges. 

The D.C. indictment already spells out how these individuals allegedly were part of a conspiracy with Trump to overturn the presidential election by different unlawful means.  It would be relatively easy for Smith to return to the grand jury and obtain a superseding indictment that turns some or all of these unindicted co-conspirators into indicted ones. Smith may also have other co-conspirators in his sights who were not specified in the indictment and could also be added.

Now Is the Time

Of course, Smith could continue to pursue Trump individually and indict any co-conspirators later in a separate case. Or he could wait to bring a superseding indictment until sometime next year. The statute of limitations for the other defendants won’t expire for more than a year.

But a superseding indictment adding the other defendants to Trump’s case now makes the most sense. Prosecutors generally prefer to try co-conspirators at one time. Having all the participants at the defense table makes it easier to present the full picture of the conspiracy to the jury. It avoids requiring witnesses to testify at multiple trials and giving some defendants a free preview of their testimony. And it saves time and resources by avoiding the need to try essentially the same case more than once.

Assuming Smith wants to indict the co-conspirators with Trump, he should do it soon. Any new defendants will have their own motions to file and own legal issues to resolve. Judge Chutkan appears ready to move quickly. If Smith waits months to bring in additional defendants, he risks requiring the trial date for all defendants — including Trump — to be pushed back even further, to give the new defendants and their counsel time to prepare. 

Joining the co-conspirators in the case now will also increase the likelihood that one or more of them will choose to “flip,” plead guilty, and cooperate. Currently, while they are not charged in the federal case, the co-conspirators are under no pressure to decide whether they want to fight the charges or cooperate. Tactically, it’s better to bring that pressure to bear sooner rather than later.

The Supreme Court’s immunity decision should not give Smith pause, at least as to most of the co-conspirators. The Court’s analysis does suggest that some of Trump’s interactions with Clark, who was a DOJ official at the time, might be off limits. But Giuliani, Chesebro, Powell and Eastman were private attorneys working for Trump and the campaign, and held no federal office. Co-conspirator number 6 is identified only as a political consultant and not as part of the Trump administration.

These private individuals allegedly conspired with Trump to pressure and lie to state officials about their election results and to orchestrate the scheme to send slates of phony Trump electors to Washington. As Justice Barrett noted in her concurrence in the immunity case, there’s no plausible way candidate Trump’s interactions with these individuals about his campaign and the election amounted to presidential official acts that might be entitled to immunity.

In the event Trump wins the election, having indicted his co-conspirators now will at least serve as a public declaration from the grand jury and Justice Department that criminal charges against those individuals were appropriate. If Trump is going to kill the case, he should have to take the full political heat for dropping indictments of a number of individuals, not just himself.

Finally, acting now, before Labor Day, would avoid any claim that Smith was violating the Justice Department’s so-called 60-day rule. This “rule,” which is really more of an unofficial, voluntary guideline, provides that DOJ generally will avoid taking overt investigative steps in a criminal case that might affect an election if that election is less than 60 days away.

I’d argue the policy does not even apply to this case. This is not a covert investigation. All of the facts are largely known, as are the identities of most potential co-conspirators. There’s little new to be revealed that is not already known to the voters. But if Smith acts before Labor Day, he can avoid any suggestion that a superseding indictment violates even the spirit of that policy.

As I wrote when the case was first indicted a year ago, charging Trump alone was one thing that made Smith’s indictment so smart. But now the rationale for that strategy no longer exists. There’s no reason to wait any longer.

It’s time to bring in the co-conspirators.