by Alan Dershowitz · September 13, 2018
During Brett Kavanaugh’s confirmation hearings, Sen. Richard Blumenthal, D-Conn., questioned the legitimacy of the judge’s appointment to the Supreme Court. Blumenthal said in his opening remarks: “The president of the United States who has nominated you is an unindicted co-conspirator.” Sen. Cory Booker, D-N.J., has also characterized Trump as “an unindicted co-conspirator.”
Following Michael Cohen’s guilty plea to eight criminal counts, pundits across the political spectrum claimed that, since Trump’s personal lawyer stated in his allocution that he paid hush money “at the direction of a candidate for federal office,” the president is now an unindicted co-conspirator.
On Fox News, Jonathan Turley, a law professor at George Washington University, stated that “If the [prosecutors] believe that what’s in this indictment was true, and that he was directed to make this payment … then the president just became an unindicted co-conspirator.”
Before this claim is repeated so often that people assume it is true, let me state categorically that Trump is not an unindicted co-conspirator and that it is wrong to characterize him as such. An unindicted co-conspirator is someone against whom a grand jury has found probable cause, on the basis of evidence, that he or she is guilty of being a co-conspirator in a crime. But as far as we know there has been no grand jury indictment in this case, because Cohen waived the grand jury and pleaded guilty to “an information” prepared by a prosecutor, not a grand jury. An information is used in federal trials generally when a defendant voluntarily pleads guilty and waives the right of an indictment by a grand jury. So unless there is a secret indictment against Cohen, accusing Trump of being his co-conspirator, Trump cannot be an unindicted co-conspirator. Moreover, the information against Cohen did not include the allegation by Cohen that he was directed to pay hush money by the candidate. That self-serving accusation was made by Cohen in his statement to the judge.
So it cannot be the basis for a conclusion that Trump is an unindicted co-conspirator.
Unlike President Richard Nixon, who had been named an unindicted co-conspirator in an indictment handed down by a grand jury, Trump has not been accused by a grand jury indictment of anything thus far. Cohen’s guilty plea and allocution cannot turn the president into an unindicted co-conspirator. Only a grand jury can.
Moreover, even if Trump were to be an unindicted co-conspirator, civil libertarians should be wary of any such designation.
When President Nixon was named “unindicted co-conspirator” in 1974, I yelled foul, even though I voted against Nixon and was critical of most of his policies. I thought it was unfair to designate the president as an unindicted co-conspirator since a person in that status has no right to defend himself, because he is never brought to trial. I urged the ACLU, on whose board I then served, to challenge this misuse of the grand jury and to protect our political enemy’s civil liberties.
Courts have also noted that unindicted co-conspirators have no legal forum in which to defend themselves. In United States v. Briggs, 514 F.2d 794 (5th Cir. 1975), the Fifth Circuit Court of Appeals found that a federal grand jury had violated the due process rights of several activists when it named them as unindicted co-conspirators in a plot to disrupt the 1972 Republican National Convention. The court wrote that the due process rights of the alleged co-conspirators were violated and suggested that if the government had probable cause, it should have indicted the co-conspirators instead of naming them in a “presentment.” A “presentment” simply names the accused, but is not the basis for a trial. The Briggs court wrote:
“A presentment is a foul blow. It wins the importance of a judicial document; yet it lacks its principal attributes, the right to answer and to appeal. It accuses, but furnishes no forum for denial. No one knows upon what evidence the findings are based. An indictment may be challenged, even defeated. The presentment is immune. It is like the ‘hit and run’ motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.”
Because of the potential due process violations, federal prosecutors are properly cautioned against identifying people as unindicted co-conspirators. As the U.S. Attorney’s Office Manual states:
“In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. The practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs.”
In the rush to weaponize the law against a president they despise, too many Democrats and liberals are becoming incautious about improperly throwing around the loaded accusation of unindicted coconspirator against Trump. Unless and until Trump is named or identified in a grand jury indictment as an unindicted coconspirator, he should not be so characterized. Those who misuse the term should stop. And when they persist, they should be corrected. Trump is simply not an unindicted coconspirator, and calling him one does not make it so.
Alan Dershowitz (@AlanDersh) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of The Case Against Impeaching Trump. This article was originally published by the Boston Globe.