Will they flip? Why the six people cited in Trump's indictment pose a threat to him

WASHINGTON −The federal government's criminal indictment of Donald Trump lists six people who allegedly conspired with him to try to steal the 2020 election, including his personal lawyer Rudy Giuliani, a former Justice Department official and a political consultant.

Any of the six could deepen Trump's already dire legal jeopardy should they decide to cooperate with special counsel Jack Smith to avoid facing criminal charges of their own.

Former prosecutors and other legal analysts told USA TODAY they were struck by the fact that Smith did not announce charges against any of the six even though the indictment describes them as crucial cogs in a broad Trump-led conspiracy to try to overturn Joe Biden's victory. In a process known as "flipping," prosecutors often use the implied threat of potential criminal charges to pressure suspected co-conspirators into cooperating against their main target − in this case Trump.

And if Smith can get even a few to flip, it would help his case tremendously.

None of the six were cited by name in the indictment, but USA TODAY has determined the identities of four: Giuliani; former Justice Department lawyer Jeffrey Clark; and attorneys John Eastman and Sidney Powell.

A fifth appears to be attorney Kenneth Chesebro. A sixth was identified only as “a political consultant who helped implement a plan to submit fraudulent slates of presidential electors” to block Congress from officially certifying Biden’s win and paving the way for the orderly transfer of power from one administration to the next.

Former Trump White House special counsel Ty Cobb was one of several legal analysts who said one of the most likely reasons Smith didn’t seek indictment of the six is because he’s trying to pressure them into providing incriminating evidence against Trump – and to possibly testify against him at trial.

Cobb said the indictment, from what it says and doesn’t say, makes clear that the grand jury hearing evidence in the case is still working and looking at additional charges. And the fact that the six are listed as conspirators, and not unindicted co-conspirators, he said, suggests Smith intends to seek grand jury indictments of them “unless they work out some arrangement with the government."

A lawyer for Eastman, Harvey Silverglate, said in a statement that his client has not and will not be engaged in plea bargaining in the case with state or federal prosecutors. USA TODAY reached out to representatives of others believed to be named in the indictment but got no response.

More bricks in the wall

Timothy Heaphy, who was lead investigator on the House select committee that investigated the Jan. 6, 2021 Capitol insurrection, said the potential cooperation of the six people listed as co-conspirators would be crucial to the special counsel’s prosecution of Trump.

“Every single brick that is placed on the wall – and a co-conspirator’s testimony would be a pretty heavy brick – makes the wall harder to penetrate” for Trump’s defense team, Heaphy said.

Heaphy, a former federal prosecutor, said the playbook in any conspiracy case – from a drug distribution enterprise to Trump’s efforts to overturn an election – is to use the leverage of a potential criminal charge to bargain with co-conspirators for more information and possible cooperation.

The cooperation of Giuliani – if he were to flip – would undoubtedly be the most significant of the six, Heaphy said. Giuliani, who was Trump’s attorney and top strategist leading up to Jan. 6, helped promote many of the falsehoods about election fraud in the 2020 election cited in the indictment.

“Rudy Giuliani is not quite the architect but at least one of the leaders in implementing the multi-part plan” to overturn the election, Heaphy said.

Heaphy and the House special committee interviewed Giuliani, who cited attorney-client privileges repeatedly, as well as Clark and Eastman, both of whom cited their Fifth Amendment rights on all questions. Powell provided some information in response to questions, Heaphy said. The panel did not interview Chesebro.

Trump also did not speak to the Jan. 6 committee despite being subpoenaed.

Predicting who might flip, and what their value is

Former federal prosecutor Barbara McQuade cautioned that at least some of the six alleged co-conspirators, if not all of them, might decide to stay loyal to Trump and not cooperate with the ongoing investigation.

Trump, and some of his Republican supporters in Congress, have given them that incentive by hinting that Trump should, and would, pardon such people if reelected president.

"It is always difficult to predict whether a co-conspirator will flip. A defendant and his lawyer must assess his own likelihood of conviction at trial versus the benefit of pleading guilty and cooperating,” McQuade said.

“Sometimes people remain loyal to their criminal associations. A prosecutor does not file charges unless he already has evidence sufficient to obtain and sustain a conviction, so Jack Smith is not likely counting on any of them to flip.”

The value of any of them is mixed, McQuade said.

On the one hand, their proximity to Trump means they probably have information that could be valuable to prosecutors, she said. But on the other, “they likely all have credibility problems in light of their alleged lies about the election."

Potent weapon to flip co-conspirators

Smith has several potent weapons, though, that he can use pressure co-conspirators into cooperating, including some that the Jan. 6 committee did not, according to Heaphy, Cobb and others.

One is the ability to obtain information via subpoena, or the threat of a subpoena. Using that, the special counsel already has obtained a potential gold mine of information from other key players in Trump’s alleged schemes to overturn the election results.

At the center of that effort, according to Cobb and others, is Mark Meadows, Trump’s chief of staff before, during and after Jan. 6.

“I have been saying for more than a year that he’s cooperating,” Cobb said of the former congressman who was at Trump’s side during the weeks and months after he lost the election in November 2020.

Meadows has refused to comment on whether he is cooperating with the Justice Department investigation being led by the special counsel’s office. But he already has publicly acknowledged handing over 2,319 text messages to the Jan. 6 committee.

“Meadows is probably almost as much an architect of this indictment as Jack Smith is because he is a witness to 80% of what's been alleged,” Cobb said. “They’ll build the narrative around Meadows and they will have him on the stand forever, I'm sure, detailing everything that happened.”

Denver Riggleman, another Jan. 6 committee investigator, said the committee tried to get Meadows’ “call detail records,” which show to whom he talked, when he talked to them and possibly also where he was when he talked to them. He has said publicly that he’s certain that with its subpoena power, Smith and the Justice Department have gotten those, and used them – and Meadows himself – as a foundation for the whole indictment.

Because Meadows has some association with many of the alleged co-conspirators in the indictment, his cooperation could encourage others to seek a deal as well that could lower their chances of being prosecuted and, if so, serving a lengthy prison sentence.

Another wild card, they say, is what former Vice President Mike Pence knows about the various and allegedly illegally schemes laid out in the indictment, and what level of cooperation he might provide.

Pence is mentioned in the indictment as having taken contemporaneous notes of key meetings and phone calls in which Trump pressured him to go along with the scheme.

And then there are all of the other potential eyewitnesses, including more than a dozen White House staffers at the time, who already have cooperated with the Jan. 6 committee and provided testimony to the grand juries Smith is using to bring the election fraud case against Trump.

Cobb and other legal analysts said that even if it’s only informed speculation that key players like Meadows are cooperating, that puts considerable added stress on alleged co-conspirators to come clean because of what they know about what those already cooperating might be telling the special counsel’s office and its prosecutors and investigators.

A rundown of the six co-conspirators and what they allegedly did

• The first is Rudy Giuliani, a key legal and, at times, operational architect of Trump's efforts to overturn the election results in various states. He was also central to the Trump-led effort to falsely claim that the election had been stolen, including making now-debunked comments about two Georgia election workers whom he accused of pulling out “suitcases” of illegal ballots. Giuliani worked with a group of outside attorneys feeding Trump rumors and unfounded allegations of voter fraud long after White House insiders told the President that he had lost the election and needed to concede. The indictment also referred to discussions between the former New York City mayor and prosecutor and former Arizona House Speaker Rusty Bowers in which Bowers asked for evidence of election irregularities and Giuliani promised to deliver them − and then never did.

• The second is John Eastman, a Trump attorney and former Texas law professor who has stated he was dealing directly with Trump at times in the weeks after the election. The indictment says he circulated a "two-page memorandum" outlining the plan to try to persuade Pence to subvert the Constitution and throw out the 2020 election results on Jan. 6. According to Bob Woodward and Robert Costa in their book "Peril," that memo was written by Eastman. CNN later reported on the memo as well. The Jan. 6 committee also found thatEastman and others devised the plan for Vice President Pence to declare the electoral votes from certain states could not be counted on Jan. 6, a measure he had previously said was not legal. Eastman pleaded the Fifth Amendment 100 times before a deposition for the Jan. 6th committee.

• The third is attorney Sidney Powell, an inside member of the legal team working with Giuliani and others to overturn the election results. Powell filed or helped file lawsuits in several states over alleged but now debunked election fraud and made numerous public claims of outside influence in the election − including from Venezuela and even satellites. Former Trump White House staffer Hope Hicks told Jan. 6 investigators that the president had privately acknowledged that Powell’s ideas for overturning the election results “sounded crazy.” Powell showed up unannounced at the White House on Dec. 18, 2020 with a team of outside attorneys to discuss election theories, the Jan. 6 committee found, triggering a contentious, unplanned six-hour meeting with the president and his White House staff advisors.

• The fourth is Jeffrey Clark, who the indictment says “attempted to use the (justice) department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud." Clark, who had been nominated by Trump to be an assistant attorney general at the Department of Justice, allegedly also sent letters to Georgia officials about overturning the election. Clark invoked his Fifth Amendment right 125 times during a deposition for the Jan. 6 committee.

• The fifth isn't as crystal-clear as some of the others, but the evidence points to it being Kenneth Chesebro, an attorney credited with writing strategic emails and memos about the efforts to overturn the vote in the key states. The Jan. 6 internal report said Chesebro drafted and distributed documents intended for use in “the Trump team’s fake elector ceremonies” that were distributed to several states. The indictment refers to those memos, saying they were sent with “fraudulent elector instructions, along with fraudulent elector certificates that he had drafted.”

• The identity of the sixth is also unclear. It could be one of a few people involved in constructing the fraudulent slates of presidential electors in a flurry of emails and conference calls during the first two weeks of December 2020. The indictment describes the person as “a political consultant” who spoke with alleged co-conspirators 1 and 5 in conference calls organized by the Trump campaign on Dec. 7 and 12 and circulated conditional language in the fraudulent elector certificates.

Valuable but 'not indispensable'

Legal experts said cooperation from the six is not necessary for the Justice Department to get a Trump conviction.

“It would be valuable for any of the six to cooperate with the government and testify against Trump,” said Norman Eisen, who served as a special counsel for the Democratic-led House Judiciary Committee during Trump's first impeachment.

“It’s not indispensable because my assessment of the indictment is that the government already has a lead cooperator who is going to serve as the government’s tour guide into and through the conspiracy. And that’s Mark Meadows.”

Like Cobb and others, Eisen believes Meadows is a cooperating witness for the government.

“It's inconceivable given his level of involvement in the events, which was second only to Trump's, that he would otherwise be excluded from the list,” Eisen said. “That’s relevant to the value of the co-conspirators. That downgrades the value of cooperation.”

Eisen said the standard for prosecuting a president is “not just proof beyond a reasonable doubt, but proof well beyond a reasonable doubt.”

He said government cooperation from the six “can make it worse” for Trump but believes the Justice Department “has the receipts to obtain and sustain a conviction, and then some.”

Eisen said Smith made the right call to defer charging decisions for the six so he could first indict Trump in the broader interest of the country. Eisen said it is also possible that Smith lacks the evidence to charge others right now.

If the government does have evidence to prosecute the six, they face a choice of loyalty to Trump versus the possibility of jail time if later charged. One major consideration whether to flip, according to Eisen, could be anticipating a scenario in which Trump is reelected in 2024 and pardons them after taking office.

“That blend of loyalty and calculation is part of what's going on.”

This article originally appeared on USA TODAY: Why Trump’s alleged co-conspirators in Jan. 6 case could pose a threat