Trump Indictment Leaves Alleged Co-Conspirators Facing Tough Choices

by Pelican Press
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By the time Jack Smith, the special counsel, was brought in to oversee the investigation of former President Donald J. Trump’s attempts to overturn the 2020 election, the inquiry had already focused for months on a group of lawyers close to Mr. Trump.

Many showed up as subjects of interest in a seemingly unending flurry of subpoenas issued by a grand jury sitting in the case. Some were household names, others less familiar. Among them were Rudolph W. Giuliani, John Eastman, Jeffrey Clark, Kenneth Chesebro and Sidney Powell.

On Tuesday, most of these same lawyers showed up again — albeit unnamed — as Mr. Trump’s co-conspirators in a federal indictment accusing him of a wide-ranging plot to remain in office despite having lost the election.

The appearance of the lawyers at the center of the case suggests how important prosecutors judged them to be to the conspiracy to execute what one federal judge who considered some of the evidence called “a coup in search of a legal theory.”

The lawyers’ placement at the heart of the plot while remaining uncharged — for now — raised questions about why Mr. Smith chose to bring the indictment with Mr. Trump as the sole defendant.

In complex conspiracy cases, prosecutors often choose to work from the bottom up, charging subordinates with crimes to put pressure on them to cooperate against their superiors. It remains unclear precisely what Mr. Smith may be seeking to accomplish by flipping that script.

Some legal experts theorized on Wednesday that by indicting Mr. Trump alone, Mr. Smith might be seeking to streamline and expedite the case ahead of the 2024 election. If the co-conspirators were indicted, that would almost certainly slow down the process, potentially with the other defendants filing motions and seeking to splinter their cases from Mr. Trump’s.

“I think it’s a clean indictment to just have Donald Trump as the sole defendant,” said Soumya Dayananda, a former federal prosecutor who served as a senior investigator for the House Jan. 6 committee. “I think it makes it easier to just tell the story of what his corrupt activity was.”

Another explanation could be that by indicting Mr. Trump — and leaving open the threat of other charges — Mr. Smith was delivering a message: cooperate against Mr. Trump, or end up indicted like him. By not charging them for now, Mr. Smith could be giving the co-conspirators an incentive to reach a deal with investigators and provide information about the former president.

While the threat of prosecution could loom indefinitely, it is possible that the judge overseeing the case might soon ask Mr. Smith’s team to disclose whether it plans to issue a new indictment with additional defendants. And some legal experts expect additional charges to come.

“It’s clearly a strategic decision not to charge them so far, because it’s out of the ordinary,” said Joyce Vance, a former U.S. attorney who is now a University of Alabama law professor. “I don’t see an advantage to giving people this culpable a pass.”

That said, at least one of the co-conspirators — Mr. Giuliani — and another possible co-conspirator — Boris Epshteyn, a lawyer and strategic adviser close to Mr. Trump — have already sat with prosecutors for extended voluntary interviews. To arrange for such interviews, prosecutors typically consent not to use any statements made during the interview in future criminal proceedings against them unless the subject is determined to have been lying.

But those protections do not prevent Mr. Smith from still charging anyone who sat for an interview. He still has the option of filing charges against any or all of the co-conspirators at more or less any time he chooses.

He used that tactic in a separate case against Mr. Trump related to the former president’s mishandling of classified documents, issuing a superseding indictment last week that accused a new defendant — the property manager of Mr. Trump’s private club and residence in Florida — of being part of a conspiracy to obstruct the government’s attempts to retrieve the sensitive materials.

Some of the lawyers named as Mr. Trump’s co-conspirators in the indictment filed on Tuesday have effectively acknowledged to being named in the case through their lawyers.

In a statement issued Tuesday night, Robert J. Costello, a lawyer for Mr. Giuliani, said it “appears” as if the former New York City mayor were Co-Conspirator 1. The statement also leveled a blistering attack on the indictment — and a defense of Mr. Trump — suggesting that Mr. Giuliani is an unlikely candidate for cooperating against the former president.

“Every fact that Mayor Giuliani possesses about this case establishes the good-faith basis President Donald Trump had for the action that he took,” Mr. Costello said.

Not long after, Charles Burnham, a lawyer for Mr. Eastman, implicitly admitted his client’s role as Co-Conspirator 2 by issuing a statement “regarding United States v. Donald J. Trump indictment” in which he insisted Mr. Eastman was not “involved in plea bargaining.”

“The fact is, if Dr. Eastman is indicted, he will go to trial,” the statement said. “If convicted, he will appeal.”

Some sleuthing was required to determine the identities of the other co-conspirators.

The indictment refers to Co-Conspirator 3, for instance, as a lawyer whose “unfounded claims of election fraud” sounded “crazy” to Mr. Trump.

That description fits Ms. Powell. She was best known during the postelection period for filing four lawsuits in key swing states claiming that a cabal of bad actors — including Chinese software companies, Venezuelan officials and the liberal financier George Soros — conspired to hack into voting machines produced by Dominion Voting Systems and flip votes from Mr. Trump to Mr. Biden.

Mr. Clark is a close match to the description of Co-Conspirator 4, who is identified in the charges as a Justice Department official who worked on civil matters and plotted with Mr. Trump to use the department to “open sham election crime investigations” and “influence state legislatures with knowingly false claims of election fraud.”

Against the advice of top officials at the Justice Department, Mr. Trump sought to install Mr. Clark, a high-ranking official in the department’s civil division, as the acting attorney general in the waning days of his administration after Mr. Clark agreed to support his claims of election fraud.

Mr. Clark also helped draft a letter to Gov. Brian Kemp of Georgia, a Republican, urging him to call the state legislature into a special session to create a slate of false pro-Trump electors even though the state was won by Joseph R. Biden Jr.

A batch of documents obtained by The New York Times helped to identify Mr. Chesebro as Co-Conspirator 5, who is described in the indictment as a lawyer who helped to craft and implement “a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.”

The emails obtained by The Times laid out a detailed picture of how several lawyers, reporting to Mr. Giuliani, carried out the so-called fake elector plot on behalf of Mr. Trump, while keeping many of their actions obscured from the public — and even from other lawyers working for the former president.

Several of these emails appeared as evidence in the indictment of Mr. Trump, including some that showed lawyers and the false electors they were seeking to recruit expressing reservations about whether the plan was honest or even legal.

“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” a lawyer based in Phoenix who helped organize the pro-Trump electors in Arizona wrote to Mr. Epshteyn on Dec. 8, 2020.

In another example, Mr. Chesebro wrote to Mr. Giuliani that two electors in Arizona “are concerned it could appear treasonous.”

At one point, the indictment quotes from a redacted message sent by an Arizona lawyer on Dec. 8, 2020, that reads, “I just talked to the gentleman who did that memo, [Co-Conspirator 5]. His idea is basically. …”

An unredacted version of that email obtained by The Times has the name “Ken Cheseboro” in the place of Co-Conspirator 5.

The indictment also cites a legal memo dated Nov. 18, 2020, that proposed recruiting a group of Trump supporters who would meet and vote as purported electors for Wisconsin. The court filing describes it as having been drafted by Co-Conspirator 5. That memo, also obtained by The Times, shows it was written by Mr. Chesebro.

A separate email, reviewed by The Times, gives a hint that Mr. Epshteyn could be Co-Conspirator 6.

The email — bearing a subject line reading, “Attorney for Electors Memo” — was sent on Dec. 7, 2020, to Mr. Giuliani and Mr. Giuliani’s son, Andrew.

“Dear Mayor,” it reads. “As discussed, below are the attorneys I would recommend for the memo on choosing electors,” adding the names of lawyers in seven states.

Paragraph 57 of the indictment asserts that Co-Conspirator 1, or Mr. Giuliani, spoke with Co-Conspirator 6 about lawyers who “could assist in the fraudulent elector effort in the targeted states.”

It also says that Co-Conspirator 6 sent an email to Mr. Giuliani “identifying attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin” — the same seven states mentioned in the email reviewed by the Times.

Maggie Haberman and Jonathan Swan contributed reporting.

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