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Arizona Election Interference Indictment – Conspicuous Absences

The Arizona indictment raises a question. How is it possible that Trump’s two alter egos have been indicted but the former president — the ego in that equation — has not?

A grand jury in Arizona has returned an indictment for several close associates of former President Donald Trump as well as lower-level individuals who served as false electors in Arizona during the 2020 presidential election. The Office of Attorney General Kris Mayes has charged all of them with a conspiracy under Arizona state law to overturn the popular vote in the state.

The list of indicted co-defendants includes seven (7) national figures: Mark Meadows, Rudy Giuliani, John Eastman, Boris Epshteyn, Mike Roman, Jenna Ellis, and Christina Bobb.

The eleven (11) other co-defendants are all the false electors in the 2020 election. That list notably includes Kelli Ward, who served as the chair of the Arizona Republican Party during the 2020 presidential election.

Notably, like Georgia, criminal trials in Arizona can be publicly broadcast.

Some highlights follow.

1. The conspicuous absence of Donald Trump

The Arizona indictment raises a question. How is it possible that Trump’s two alter egos have been indicted but the former president — the ego in that equation — has not? 

The two alter egos are Trump White House Chief of Staff Mark Meadows and Trump’s personal lawyer Rudy Giuliani. Trump’s absence from the indicted co-defendants list is all the more puzzling since Trump is identifiable as “Unindicted Coconspirator 1” in the Attorney General’s court filings. Coincidentally, on Wednesday, April 24, Michigan Attorney General Dana Nessel’s office testified in that state’s court that Trump, Meadows, and Giuliani are “unindicted co-conspirators” in the Michigan state prosecution of false electors.

A great deal of evidence shows that Meadows and Giuliani helped lead the multi-pronged efforts to overturn the election acting on behalf of Trump. 

Giuliani: The federal indictment of Trump, for example, refers to Giuliani as “Co-Conspirator 1” including for his allegedly helping orchestrate – on behalf of Trump – the false electors scheme across the seven swing states, including Arizona. The federal indictment also states that Trump worked directly with Giuliani in pressuring Arizona state officials to overturn the popular vote, including calling the Republican Speaker of the Arizona House of Representatives Rust Bowers in which they “made knowingly false claims of election fraud aimed at interfering with the ascertainment of and voting by Arizona’s electors.” 

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Meadows: The January 6th House Select Committee final report has the greatest details of Meadows’ deep involvement in the false electors scheme on behalf of Trump. Indicted in Georgia, Meadows’ own court filings there claim – or, admit – that he was acting in service of the then-president.

One can only speculate as to the reasons why Trump might be excluded but the other two men included in the Arizona indictment. The reasons might have to do with direct evidence for Meadows and Giuliani that is lacking for Trump – especially as the former president acted, in part, through them as intermediaries and conduits. Another reason may be the exercise of “prosecutorial discretion.” And yet another could be that prosecutors submitted the question to the jury but an insufficient number of jurors approved of charging the former president. Or some other reason might explain it.

Tuesday’s indictment may not be the final word on whether Trump will be indicted in Arizona. Another shoe may be yet to drop. But the current situation cries out for an explanation of how Trump’s two key agents – Giuliani and Meadows – are included in the list of indicted individuals, but not Trump himself. 

2. The conspicuous absence of Kenneth Chesebro

Kenneth Chesebro has properly been called “a chief architect” of the false electors scheme. He is identifiable as Co-Conspirator 5 in the federal indictment of Trump, and he has pleaded guilty in the Fulton County, Georgia prosecution.

Chesebro has so far escaped prosecution in other states where false electors are under indictment. His protection from prosecution appears to be on the basis that he “cooperated” with those investigations. However, recent investigative reporting by CNN and others has revealed that Chesebro apparently made false statements to state prosecutors in Michigan and Nevada while feigning cooperation with their respective criminal investigations of false electors (see also this analysis of flaws with his proffer agreement in Georgia).

That all is now fairly well known to close observers of these cases. Why, then, the Arizona indictment excludes Chesebro is a mystery. Prosecutors in Michigan and Nevada have decided not to seek indictments of anyone at the national level and instead focused only on false electors in their states. But in Arizona that’s different, as the prosecutors have now charged several out-of-state individuals who were involved in the nationally coordinated effort to overturn the election results. But not Chesebro. Earlier reports were that Chesebro was “cooperating” with the Arizona prosecutors, and that may explain it. 

3. The indictment of Boris Epshteyn and Christina Bobb

Two new figures have been added to the list of Trump’s associates now under indictment for alleged efforts to overturn the presidential election: Boris Epshteyn and Christina Bobb. 

In the federal indictment, it appears that Epshteyn may be unindicted “Co-Conspirator-6” (see analysis by New York Times’ Maggie Haberman, Jonathan Swan and Luke Broadwater). In the Fulton County, Georgia indictment, previous analysis at Just Security identified Epshteyn as most likely one of the unindicted co-conspirators (“Individual 3”). 

4. A potential Trump presidency and pressure on defendants to flip

Criminal defendants in the Arizona 2020 election interference prosecution, as well as elsewhere like Fulton County, Georgia, may have reasons to flip and cooperate with prosecutors due to the prospect of a Trump presidency. 

A president cannot issue pardons for state crimes, and his or her control over the Department of Justice does not extend to state law enforcement authorities. The state-level prosecutions of false electors and other Trump associates – in Arizona and elsewhere – will accordingly proceed whether or not Trump wins election. But he himself has a high likelihood of being deemed immune (by the Supreme Court if it comes to that) from state and local criminal prosecutions while in office. In other words, co-defendants and co-conspirators may be left holding the bag. That dawning reality may create incentives for some of these individuals to cooperate with law enforcement authorities sooner than later.