Trump Special Counsel Plays Cards Close on What Makes a Witness

The special counsel’s election conspiracy investigation of Donald Trump highlights longstanding tension about whether prosecutors can assure prospective cooperators they’re purely witnesses or stick to calling them “subjects,” who have potential exposure.

Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target. They’ve asked to remain anonymous to discuss sensitive matters.

Justice Department guidance doesn’t define what a witness is and prosecutors prefer the flexibility of the broad subject label, which covers anyone within the scope of a grand jury investigation.

Yet Smith’s search for corroborating witnesses aimed at proving the 2020 election case against the former president pressures prosecutors to incentivize people to talk, but without exposing themselves to counterattacks from defense lawyers and Trump supporters. How they navigate that balancing act could help shape the legal fate of Trump and his allies.

“It is an exercise in understandable murkiness. And it’s more complicated here,” said Jim Walden, a former federal prosecutor who’s now a criminal defense attorney. “Anyone in the Trump administration has at least potential liability if they helped him form strategy about his election loss.”

By sticking strictly to the subject designation, Smith’s team retains the ability to charge individuals who appear innocent but later turn out to have liability, while protecting itself from accusations they baited people into talking. At the same time, they’d risk undercutting their mission of expediting the Trump trial, as defense lawyers insist on negotiating drawn-out immunity deals before an interview.

It could be playing out to the detriment of both sides.

One of the defense lawyers with business before the special counsel said that a senior member of Smith’s team said that the office wished it had the ability to put people in a witness category to streamline the process of conducting interviews.

A spokesperson for Smith’s office declined comment.

Workaround Tactics

With a trial scheduled next year over allegations Trump attempted to overturn the election, prosecutors have reportedly sought interviews with former White House and federal employees, campaign staffers, state officials, and others with just peripheral involvement in the three alleged criminal conspiracies.

Many simply attended meetings or pushed back on the conspiracy, so would appear to face little to no risk of being federally charged.

But to their lawyers, the murkiness over exposure to indictment, if not by Smith then by state prosecutors, can make for challenging decisions on how to advise clients.

Three other defense attorneys said the special counsel wasn’t as rigid in their experience. Prosecutors have found varying ways to put them at ease by bending from a strict “subject” tag, they said.

If assurance ultimately isn’t offered, both sides still have ample tactics to work around the uncertainty. They can negotiate various forms of limited immunity that facilitate a conversation, a process that has played out with Smith’s office, several lawyers said.

Agreeing to a deal, such as a proffer or non-prosecution agreement, can take considerable time while racking up legal fees for former low-level aides who often can’t afford added and unnecessary costs, said Zachary Terwilliger, a former US attorney in the Eastern District of Virginia.

“It’s not just the expense, it’s the fact that it’s bogging down the whole process, and nobody wants that,” said Terwilliger, now a partner at Vinson & Elkins.

‘Subject-Leaning Witness’

Although subject and target are the only classifications defined in the Justice Manual, some prosecutors have been willing to share more details in other cases, said multiple former DOJ lawyers.

When told their client is a subject, defense attorneys say they’ll routinely ask which direction they’re swaying—target or witness. And if prosecutors trust the attorney, they’re sometimes inclined to indicate that the client is a “subject-leaning witness” or something to the effect of “we’re not interested in charging your guy.” They’ll caveat that claim by adding that the status is always subject to change.

Other prosecutors refuse to budge. The desire to play it by the books is natural, former prosecutors say, because new information may arise that makes somebody unexpectedly a target.

Particularities of the scheme Trump and others are accused of plotting around the election make the analysis particularly difficult for prosecutors, said Sarah Krissoff, a white-collar defense lawyer and former federal prosecutor.

If they’re tight-lipped, that’ll hurt their case because the indictment will be dependent on a “deep bench of additional witnesses,” said Krissoff, a partner at Cozen O’Connor.

She also sees the other side of the argument.

The media circus around Trump and heightened threats of prosecutorial misconduct allegations in a politically charged investigation warrant caution.

“There’s so much scrutiny of the case that everything they say, every move they make is analyzed in such a way that they have to choreograph those moves in a way that’s probably not to their benefit,” Krissoff said. “They can’t be as nimble as they should be, frankly.”

No Assumptions

The defense complaints have come from lawyers who say their clients are far removed from efforts to block Joe Biden from taking office.

Soumya Dayananda, white-collar defense attorney and former senior investigative counsel on the House committee probing the Capitol riot, said Trump prosecutors can’t make such assumptions.

“The problem is, in the complicated multipronged conspiracy that the former president led, there are numerous levels of people who were involved,” said Dayananda, a partner at Willkie Farr & Gallagher. “Even if you were a low-level person, prosecutors must engage in a level of scrutiny to distinguish between target versus subject.”

Subject would include people who may turn into witnesses, but she felt it was appropriate for Smith to avoid labeling them as such.

Several lawyers pushed back on the complaints directed at the special counsel by noting that anyone who truly believes their client lacks liability should feel confident to bring them in.

Even those who didn’t think Smith should stray from subject-target classifications appreciated the need for defense caution.

“Especially in a situation like this where you have not only the federal investigation but potential state investigations going on, you’ve got to be careful to look out for your client’s interests,” said Kelly Currie, the former acting US attorney in Brooklyn.

To Terwilliger, bringing both sides to the table must start with a revision to the Justice Manual that lays out a definition for witness.

Regardless of what the guidance states, Terwilliger said he longed for the days when prosecutors were less reluctant to call a witness a witness.

“People aren’t willing to have these conversations offline anymore because everything’s gotten so vitriolic and political and leaks,” he said. “We’re just more formal now because trust between prosecutors and the defense bar has broken down, especially in these thorny political cases.”