Why didn't DOJ indict Trump's co-conspirators?

Jack Smith's indictment in DC identified 5 other co-conspirators, and there are other major figures in the story. None have immunity. Yet none were indicted.

Shortly after the release of the Jack Smith report on the January 6 case against Donald Trump, every major legacy media outlet released its “takeaways” from the report.

And every single one of those outlets missed the two most glaring problems about this case.

First, there is either an elision or a mischaracterization of DOJ’s internal memoranda that concluded that a sitting president may not be prosecuted. The elision is simply not to mention it at all, gliding right over it with an oh-well assumption that because Trump won the election, the case must die. The mischaracterization is to refer to the memos as “binding” without further explanation, when the memos do not have the force of law. They merely constitute internal guidance within the department. These policies can and could have been changed at any time.

Not to be too flippant, but in the same way that DOJ could change its policies around casual Fridays and how parking spots are allocated, they could change their policies around whether they’re allowed to indict their boss.

It was a make-believe policy in the first place — relics of the two next most recent times that a president was in legal jeopardy, Richard Nixon during Watergate and Bill Clinton during the Lewinsky scandal. Those two times, DOJ decided that they did not want to indict their boss. Rather than admit that that was their motivation, they passively-aggressively pinned it on the burden it would supposedly cause. Oh, gosh, it would be such an inconvenience for him — it’d really mess up his schedule. He’s just way too busy to get prosecuted.

And now? DOJ’s cop-outs have risen into a Frankenstein’s monster of a legal argument, taking on a life of its own, climbing off the table and setting off on a murderous, arsonous rampage.

At the very least, DOJ could have issued a new memorandum clarifying that its policy eschews indictment of a sitting president — but that an indicted individual may still be brought to trial even after becoming president. After all, DOJ’s spurious argument is that presidents must not be distracted from their constitutional duties by a prosecution — it’s really about attention and surprise. I have to run the free world, and now you want to indict me!

But that argument does not hold up if an already-indicted person becomes the president. The criminal cloud above them was already there. By seeking the presidency, they already knew what they were getting themselves into — that they would have to deal with the case while in office. The White House should not be an asylum from which to escape criminal consequences.

None of this has been discussed or questioned in any serious way by mainstream outlets — and this is an absolutely appalling lapse, another example of our sleepwalking into a lazy, cozy fascism of failing to question authority.

Yet there is a second glaring problem with the DOJ case against Trump — and again it is somehow getting missed.

Why didn’t anyone else get indicted?

Smith’s indictment identifies and numbers six co-conspirators, who appear to be:

1. Donald Trump

2. Rudy Giuliani

3. John Eastman

4. Sidney Powell

5. Jeffrey Clark

6. Boris Epshteyn

All of these other individuals have been implicated in Trump’s conspiracy and its various crimes — with the ultimate goals of stopping or delaying the January 6, 2021 certification of the Electoral College results, with fake elector documents waiting on standby, so that the election could be thrown to the House of Representatives, where Republicans would likely prevail and vote Trump into office despite very obviously losing the election.

A lovely day for an alleged criminal conspiracy — and hiring some landscaping services.

Jeffrey Clark’s situation is more interesting but nonetheless warranted indictment: there is ample evidence that he attempted a putsch inside DOJ to have the department give its official blessing to Trump’s bogus claims of “election fraud.” While the Supreme Court (wrongly) ruled that Trump himself cannot be prosecuted for his part in those “official acts” — and evidence of them could not even be presented in a trial of Trump — none of that applies to Clark as a putative defendant. Clark could have and should have been indicted, then tried, as long as any Clark trial was separate from a trial of Trump.

Then there are all the other figures in the January 6 narrative that potentially merited further investigation and potentially indictment.

And exactly zero of these people are immune. None of the arguments for presidential immunity apply to any of the president’s aides, no matter how senior. In fact, even in DOJ’s misguided memos on presidential immunity, they determined that even the vice president lacks any such status and can absolutely be prosecuted while in office.

So why weren’t any of these people indicted?

When Trump was indicted in August 2023, it seemed like a shrewd move only to indict Trump. To have a sole defendant would streamline and speed up the trial calendar — it made Jack Smith’s January 6 case the most potentially lethal of the various cases against Trump that emerged that year.

That all changed with the Supreme Court’s involvement in the immunity issue: not only the decision itself but the delay that it injected into the process (which, of course, was really the primary goal of Trump’s lawyers).

Yet SCOTUS issued its immunity ruling on July 1. Over six months ago. As soon as that decision came down — with its mandate that the district court engage in a fact-intensive inquiry as to whether the various acts alleged in the case were “official acts” of the presidency — the need for speed in the case went out the window. At that precise moment, there was no longer a rationale for only indicting Trump.

Literally everyone I spoke to about this case that summer expected that DOJ was busily hammering out indictments of the other co-conspirators and that we would see those indictments by the end of the summer, or by September at the latest.

They never came.

I cannot fathom what happened here. Was there just such a devastating blow to morale that prosecutors could not figure out what to do? Was there a worry that indicting the other co-conspirators would look too politically motivated? The latter does not make sense. To indict Trump — the actual candidate for president and leader of the Republican Party — but not his underlings, for fear of appearing political? Yes, the election season was in full swing by the summer, but DOJ could have stood firm on the position that the timing of the additional indictments was driven by SCOTUS, not the election.

Once again, as has been the tragic tale throughout this case and many of the others, prosecutors’ Hamletian excess of caution has been fatal.

The failure to act was not only a defeat for justice as to those other alleged co-conspirators, it was a missed opportunity tactically as well. Summertime indictments of the other five individuals could have resulted in one or more of them flipping and cooperating with DOJ (as Mark Meadows appeared to, and as Giuliani flirted with), changing the chessboard of the cases.

And yes, even after the election, there was still a strong justification for continuing the cases against the other co-conspirators, even though Trump would likely squash them once in office. For one thing, it would have forced Trump to burn political capital on covering up his conspiracy.¹ Even in this cowardly age, the headline TRUMP PARDONS CO-CONSPIRATORS still would have meant something. It would have confirmed once and for all in the minds of many middle-of-the-road Americans that Trump did commit crimes and had something to hide.

But no one forced Trump to do that.

Instead, Smith resigned. Even though he still had conspirators to prosecute — individuals who appeared to be in league to overturn the lawful results of the election for president of the United States of America.

But Smith missed this opportunity. And the media missed the story.

1. It also would have been non-trivial to get someone at DOJ to fire Jack Smith. Yes, Trump is set to nominate the seemingly sycophantic Pam Bondi as attorney general, and yes, sadly, she is probably going to get confirmed. But recall that Jeff Sessions seemed just as much of a toady for Trump, and yet when the chips were down, Sessions looked out for his own survival and recused himself rather than overseeing the Trump-Russia investigation. Why? Because Sessions had been involved with the Trump campaign.

Bondi has long been a Trump advisor — including involvement in the Big Lie after the 2020 election (she was even at the Four Seasons Landscaping event!). If Sessions recused himself, so should Bondi. As opportunistic as she appears to be, she could have suddenly gone into self-defense mode and decided not to be the one to fire Jack Smith.

Ok, well then who is likely to be next in line after Bondi? Who could have played the Rod Rosenstein role here? None other than Todd Blanche and Emil Bove, Trump’s losing defense lawyers in the Manhattan criminal case. Blanche requires Senate approval as deputy AG (Rosenstein’s old role), but Bove will likely be acting deputy AG in the interim. Would Bove or Blanche swing the ax to get rid of Smith? Wouldn’t they have at least considered recusing themselves given their personal representation of Trump?

The game of “who’s going to do my bidding?” is one that always ends in the corrupt boss finding a particularly craven minion — but it is a game we always must force the corrupt boss to play, because it makes him look foolish and weak, and because, yet again, anything less is obeying in advance.