Unindicted co-conspirator

An unindicted co-conspirator, or unindicted conspirator, is a person or entity that is alleged in an indictment to have engaged in conspiracy, but who is not charged in the same indictment. Prosecutors choose to name persons as unindicted co-conspirators for a variety of reasons including grants of immunity, pragmatic considerations, and evidentiary concerns.

The United States Attorneys' Manual generally recommends against naming unindicted co-conspirators, although their use is not generally prohibited by law or policy.^[1] Some commentators have raised due-process concerns over the use of unindicted co-conspirators.^[2] Although there have been few cases on the subject, the Fifth Circuit Court of Appeals addressed these concerns in 1975 United States v. Briggs.^[3]

Nixon

The term unindicted co-conspirator was familiarized in 1974 when then U.S. President Richard Nixon was named as an unindicted co-conspirator in indictments stemming from the Watergate Investigation. Nixon was not indicted due to concerns about whether the United States Constitution allowed the indictment of a sitting President (see Executive privilege).

Trump

On August 21, 2018, President Donald Trump's former longtime lawyer, Michael Cohen, pleaded guilty to willfully causing an unlawful corporate contribution and making an excessive campaign contribution. ^[4] Under oath Cohen told the judge that Trump directed him to break the law by making payments to a pornographic film actress and a former Playboy model to keep the stories concealed during the campaign. ^[5] Philip Allen Lacovara, who was counsel to the special prosecutors investigating Nixon’s role in the Watergate scandal, stated ,“The plea, under oath, establishes that the president was a co-conspirator in the campaign violations to which Cohen pleaded guilty,” adding that Trump also “is, technically, an unindicted co-conspirator.” Many law professors and attorneys held a similar analysis. Lisa Kern Griffin of Duke University stated, "Although the president is not named in the charges, he is all but an unindicted co-conspirator." ^[6] Joyce Vance, a former U.S. attorney for the North District of Alabama, said, “I think it’s likely that we will see the president as an unindicted co-conspirator. And what that means is that he won’t be named, he won’t be indicted, and Justice Department policy is not to include the name of a target that you don’t indict in a case — so that’s why his name won’t be used.” ^[7] According to the U.S. Attorneys' Manual (9-11.130 - Limitation on Naming Persons as Unindicted Co-Conspirators), "In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments." ^[8]

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