Jack Smith needs to indict six more people before he quits
Not only will Donald Trump probably escape prosecution in his conspiracy to overthrow the government in his DC criminal case, so will his six unindicted co-conspirators. Unless — and this is a big unless — special counsel Jack Smith indicts those six unindicted co-conspirators now, before standing down.
The co-conspirators, known in court documents as “co-conspirators 1 through 6” are, respectively, Rudy Giuliani, John Eastman, the “Kraken” lady Sidney Powell, Jeffrey Clark, Kenneth Chesebro and an as yet unnamed political consultant. If Smith neglects to indict them now then it will be too late to do so after Trump leaves office in 2029. Why? Because of that pesky little legal escape clause known as the statute of limitations (SOL). The SOL for this particular case is 5 years.
But, you might reasonably ask, won’t the SOL run out anyway if they are not brought to trial within the confines of that five years? Ordinarily yes, unless Trump does what he probably will do. He can either corruptly pardon them or he can have his newly-minted Attorney General (someone awful like Aileen Canon or Alina Habba) corruptly dismiss the cases against those six. If he takes either of those roads, Trump will have effectively “paused” the indictments. In other words, they will be in a kind of suspended animation to which the SOL will no longer apply.
These kinds of pauses go on all the time. For example, it’s not unheard of for indicted criminals to skip out on their trials and go into hiding. If they disappear for a time beyond the expiration of their statute of limitations, they are frequently under the mistaken impression that they can no longer be tried for their crimes. Not so. It turns out that their actionable jeopardy has been put on hold for as long as they remain fugitives. It’s known as forfeiture by wrongdoing. The criminal will have forfeited their right to SOL because he or she or someone broke the law.
The same idea applies with the six unindicted co-conspirators in Trump’s DC case. If Trump pardons them the pardon itself could be deemed corrupt. Pardoning co-conspirators from his own criminal indictment would be unprecedented and is almost certainly illegal. That also goes for Trump should he pardon himself. It would be equally corrupt and illegal for Trump to instruct his new AG to dismiss the case against everyone involved.
But won’t Trump’s legal people know all this? Perhaps. But Trump has a habit of surrounding himself with all the worst people, and many of those people are absurdly incompetent. Or they might know all this, warn Trump about it and, given Trump’s notoriously poor impulse control, he might go ahead and do it anyway.
All this is moot if Jack Smith doesn’t bother indicting those six unindicted co-conspirators. Will he? If I had to bet I would bet no. Why? Because, goddamn it, nobody on our side ever seems to do anything satisfying or in a timely manner, so why should Smith be any different? And I will tell you one more thing, brothers and sisters, one of the rare pleasures I will get from Trump taking office in January will be to see the “Attorney Genital” Merrick Garland lose his job. He could have saved us from Trump. He chose instead to dawdle or meekly do nothing, and now we are in the horrible fix we are in.
Robert Harrington is an American expat living in Britain. He is a portrait painter.