During Brett Kavanaugh’s confirmation hearings, Democratic Senator Richard Blumenthal of Connecticut 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 coconspirator.” Senator Cory Booker has also characterized Trump as “an unindicted coconspirator.”
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 coconspirator.
So it cannot be the basis for a conclusion that Trump is an unindicted coconspirator.
Unlike President Nixon, who had been named an unindicted coconspirator 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 coconspirator. Only a grand jury can.
Moreover, even if Trump were to be an unindicted coconspirator, civil libertarians should be wary of any such designation.
When Nixon was named “unindicted coconspirator” 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 coconspirator, 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 coconspirators 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 coconspirators in a plot to disrupt the 1972 Republican National Convention. The court wrote that the due process rights of the alleged coconspirators were violated and suggested that if the government had probable cause, it should have indicted the coconspirators 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 coconspirators. As the US 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 coconspirators 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 M. Dershowitz is professor emeritus of law at Harvard Law School and author of “The Case Against Impeaching Trump.”