From the moment special counsel Jack Smith listed six co-conspirators in Donald Trump’s Jan. 6 indictment but didn’t name or charge them, a major question has been which of them might be tempted to flip and serve as witnesses for the prosecution.
Then Trump’s legal team set about previewing in the media an “advice of counsel” defense — one that could seemingly lay at least some blame at the feet of the co-conspirators who provided him that legal advice.
Predictable finger-pointing has now commenced.
Much of it is aimed at former Trump lawyer Sidney Powell, identified in the indictment as Co-Conspirator 3. But there’s now also a sign that at least one co-conspirator might be gesturing back in the direction of Trump and his campaign.
On the eve of a Fulton County, Ga., grand jury considering charges in its own Jan. 6 case this week, CNN reported that prosecutors there have obtained text messages linking the Trump team to a voting system breach in Coffee County, Ga. (Coffee County was one of multiple counties in which local officials allegedly gave outsiders access to voting machines and data without a court order or subpoena.)
In response, a lawyer for alleged Co-Conspirator 1, Rudy Giuliani, sought to distance the former mayor from those events — and more notably, from Powell.
“Rudy Giuliani had nothing to do with this,” Robert Costello told CNN. “You can’t attach Rudy Giuliani to Sidney Powell’s crackpot idea.”
Giuliani’s lawyer isn’t the only one pointing to Powell. A lawyer for former New York City police commissioner Bernard Kerik — who does not match the identity of any alleged co-conspirator as described in the indictment but recently met with Smith’s team — suggested that Powell went further than Giuliani or Trump.
“Sidney Powell’s conduct stands in stark contrast to that of Rudy Giuliani and President Trump, who were looking to only make claims that could be backed up by evidence,” Kerik’s lawyer Timothy Parlatore, who previously served on Trump’s legal team, told Rolling Stone.
That’s quite the claim; Giuliani and Trump offered all manner of huge and bizarre allegations about voter fraud that weren’t backed up by evidence, doing so long after Trump’s legal team officially parted ways with Powell in November 2020. Giuliani also recently conceded, as a legal matter, that one of his biggest claims, against two Georgia election workers who have sued him, was false and even defamatory.
But the thrust of the Kerik claim — trying to differentiate Giuliani’s and Trump’s conduct from Powell’s — is telling, given that Giuliani’s lawyer is making a similar argument.
“Based on the contents of their questions, and my understanding of criminal law, the main individual who was discussed who Mr. Kerik gave any information that could be incriminating would be Sidney,” Kerik’s lawyer previously told Rolling Stone.
Which co-conspirators face the most trouble is an important question. But the most significant question remains how much trouble Trump faces.
And a quote from the new Rolling Stone story stands out on that front. It comes from an attorney for Kenneth Chesebro, who matches the description of “Co-Conspirator 5” in Trump’s indictment.
“Whether the campaign relied upon that advice as Mr. Chesebro intended,” attorney Scott Grubman wrote, “will have to remain a question to be resolved in court.”
Grubman added: “We hope that the Fulton D.A. and the special counsel fully recognize these issues before deciding who, if anyone, to charge.”
This comment would seem intended to call into question Trump’s “advice of counsel” defense, at least insofar as it involves Chesebro’s advice.
The New York Times recently reported on a Dec. 6, 2020, memo from Chesebro that Smith has cast as a turning point in the alternate-electors plot becoming a criminal one. In the memo, Chesebro qualified his plan by saying, “I’m not necessarily advising this course of action.” He also reportedly said it was “a bold, controversial strategy, and that there are many reasons why it might not end up being executed on Jan. 6.”
Former Trump attorney general William P. Barr has cast doubt on the effectiveness of Trump’s “advice of counsel” argument by citing similar qualifiers offered by another alleged co-conspirator, John Eastman, in his own legal advice.
“I’m not even sure you would characterize what Eastman said as ‘advice,’ ” Barr said recently. Barr added that “some of what he was saying essentially was, ‘Well, you know, it’s unclear here, and you can make this argument. I’m not saying the courts would accept it,’ and so forth. And you act on that, it’s your own hazard.”
Suggesting that your advice wasn’t actually followed, as Chesebro apparently might, isn’t the same as pinning the blame on Trump or anyone else, personally.
But there is a natural tension between the Trump team’s suggestions that he was relying upon advice of counsel and the interests of those who provided that counsel — just as there will seemingly be tension between what the various alleged co-conspirators say about their own roles in how the plot came together.
Increasingly, that tension has broken out into the open.