What the August 1 Indictment Reveals
In June, Mark Meadows’ lawyer, George Terwilliger, called a report that his client had reached a plea agreement with the Special Counsel’s office “complete bullshit.” But the indictment charging Donald Trump with conspiring to use unlawful means to overturn the 2020 election indicates that Meadows, who was Trump’s last White House Chief of Staff, may now be a cooperating witness. Former Acting Director of the FBI Andrew McCabe said the absence of Meadows as a co-conspirator in the indictment “lends a lot of credence to the theory that he is working with or cooperating with or has provided significant information to Jack Smith and his team.”
Joyce White Vance, another former U.S. Attorney, is hesitant. She notes that the Special Counsel would have reason to reveal that the indicting grand jury received significant information from Meadows if it did. His cooperation could alarm other potential witnesses and encourage them to bargain for leniency while the opportunity remains. But the indictment in fact recites only one piece of evidence that appears to have been the product of Meadows’ personal recollection. It says that when Meadows traveled to Georgia at Trump’s behest to view the auditing of absentee ballots, he told Trump that state election officials were “conducting themselves in an exemplary fashion” and would discover fraud if any existed. (A day later, Trump tweeted that the same officials were attempting to hide evidence of fraud and were “terrible people.”)
Although this information is not the blockbuster one would expect if Meadows were telling all he knows, it tends to confirm accounts that he testified and supplied relevant information to the indicting grand jury. In May, Trump’s lawyers were reportedly concerned that the absence of any contact between Meadows’ team and theirs might indicate that Meadows was cooperating.
As McCabe noted, Meadows’ absence from the indictment’s list of Trump’s co-conspirators does suggest his cooperation. (The indictment describes six co-conspirators without naming them, but none of their descriptions matches Meadows.) Why didn’t he lead this list, displacing Rudy Giuliani as Co-Conspirator 1? If the Special Counsel’s office does not plan to seek Meadows’ indictment for the crimes with which it has charged Trump and does plan to seek the indictment of the listed co-conspirators, it was probably prudent to leave him out.
The Special Counsel may have agreed to allow Meadows to plead guilty to less serious charges or even not to prosecute him in exchange for his testimony. It is difficult to think of any other reason for omitting him; the Special Counsel probably didn’t judge him innocent. But Meadows’ omission conceivably could reflect continuing negotiations or an informal understanding rather than a completed agreement. After providing useful documentary evidence to the House Select Committee to Investigate the January 6 Attack, Meadows appeared to engage in negotiations about the terms of his testimony but then defied the committee’s subpoena. Representative Jamie Raskin said that Meadows’ game of “hokey pokey” led the Committee to delay its initial public hearings. And Meadows apparently didn’t “share much” when he appeared before the Fulton County special grand jury investigating violations of Georgia election law. Instead, when asked such questions as whether he had a Twitter account, he invoked his privilege against self-incrimination. But Meadows would seem to have little to gain by drawing things out now, and Terwilliger, a top-flight lawyer who served as Deputy Attorney General in the administration of George H.W. Bush, is undoubtedly giving him good advice.
Perhaps the omission of Meadows from the indictment’s list of co-conspirators reflects an informal understanding rather than a conventional plea agreement. Possibly, for example, Meadows has agreed to provide information that implicates Trump while declining to provide information likely to incriminate Meadows himself. Even his partial evidence could be of value. For example, none of the people who testified before the House Select Committee about Trump’s statements during the 187 minutes he refused to ask his followers to leave the Capitol were themselves present when he made those statements. At a criminal trial, their hearsay testimony probably would be excluded, but Meadows could probably fill the gap. Might the Special Counsel’s office have agreed, formally or informally, to see what evidentiary contribution Meadows can make before determining whether and how to charge him?
The Tug-of-War for Meadows’ Cooperation
Few people have appeared more devoted to the MAGA movement and to Donald Trump than Meadows. After he and Trump left office, Meadows published a memoir titled The Chief’s Chief. A reviewer commented: “No president could ask for a more fawning yes man than Meadows.” Apart from the memoir, Meadows proposed that, if Republicans won control of the House in 2022, Trump should be elected Speaker. He complained that decisions of Supreme Court Justices Brett Kavanaugh and Neil Gorsuch were “deeply disappointing to the MAGA movement that made their appointments possible.” He compared Trump’s extensive and unlawful mistreatment of presidential records to Speaker Nancy Pelosi’s lawful (and public) destruction of a photocopy of Trump’s 2020 State of the Union Address. And, most revealingly, Meadows, apparently following Trump’s instructions that pertained to issues of executive privilege, defied the House Select Committee’s subpoena, leading the House to cite him for contempt and to seek (unsuccessfully) his prosecution by the Department of Justice.
Trump has appeared to encourage Meadows’ loyalty and silence with praise, cash, and the prospect of a pardon. Before publication of The Chief’s Chief, Trump called the book fantastic and said it would make an incredible Christmas present. In private, the former president’s tone changed when the press noticed Meadows’ revelation that Trump had received and failed to disclose a positive Covid test result three days before his first debate with candidate Joe Biden. Trump was reported to have railed for days about Meadows and how “fucking stupid” he’d been to mention the test result in his book. But Trump quickly resumed his praise for the book in public.
Upon leaving the White House, Meadows accepted a position at the Conservative Partnership Institute. The website of this small nonprofit, whose principal mission appears to be enabling Capitol Hill conservatives to network with one another, says that it is “led by former Senator Jim DeMint and former White House Chief of Staff Mark Meadows.” In July, 2021, soon after the House established the Select Committee to Investigate the January 6 Attack, former President Trump’s “Save America” PAC gave $1 million to the Institute. The total amount of the PAC’s contributions to all organizations in the second half of 2021 was $1.35 million.
One reason lawyers representing Trump allies were reportedly upset by Meadows’ failure to stay in touch was that “Save America” also paid $900,000 to McGuireWoods, George Terwilliger’s law firm. Perhaps the lawyers believed that this payment entitled them to be kept in the loop.
Trump has said that, if returned to the presidency, he “absolutely” will pardon “those people from January 6,” many of whom he claims are being persecuted. During his presidency, he declared that flipping “almost ought to be outlawed.” He pardoned all of his associates who refused to cooperate with prosecutors (Roger Stone, Paul Manafort, Michael Flynn, and George Papadopoulos) but neither of the two who did (Michael Cohen and Rick Gates). Trump reportedly sought to include Meadows in a wave of preemptive pardons he planned to issue before leaving office, but Trump evidently abandoned this scheme when his White House Counsel said the pardons would look like obstruction and be met with mass resignations by senior lawyers.
Trump’s power to influence Meadows may be considerable, but it probably doesn’t equal Smith’s today. When Meadows took his White House job, he probably didn’t see a lengthy prison term as something he signed up for.
The Special Counsel’s Assessment
If he’s currently bargaining with Meadows, the Special Counsel must take account of how strong a witness Meadows is likely to be and how much information he can provide. Meadows’ past refusals to provide information could underscore his self-interested reasons for later cooperation, and his past statements have not always been consistent. Marc Short, Vice President Pence’s former Chief-of-Staff, told the House Committee why he discounted some of the things Meadows said: “I’d been told a lot of different things from Mark Meadows, who had told a lot of different things to a lot of different people.” What’s more, the Special Counsel’s decision to indict Trump separately from his alleged co-conspirators poses a special risk for witnesses who must try to repeat their testimony in two or more courtrooms without falling into contradictions.
Meadows will have to accept responsibility for his own wrongdoing if he is to serve as a credible and effective witness. He appears to have significant culpability for acting in lockstep with Trump and, in particular, for taking an active role in implementing the fake-electors scheme. The Select Committee included Meadows in its criminal referral to the Justice Department, citing the statutes now at the core of the grand jury’s indictment of Trump. As former prosecutor Andrew Weissmann explained, people like Meadows “will have to say the ‘w’ word, they have to say they did something wrong.” Prosecutors are at risk of “creating a witness for the defense if [they] go forward with a half-baked cooperator,” for defendants’ lawyers can point out that their clients were doing nothing different from the government’s principal witness. (Prosecuting Donald Trump podcast: at 16:45)
Whatever weaknesses Meadows may have as a witness are probably offset by the extent of his knowledge. He was almost always in the room where it happened—an eyewitness to almost every phase of the conspiracies alleged in the August 1 indictment. A House report recommending a contempt citation for Meadows 20 months ago explained why the Select Committee wanted his testimony. It noted:
- Meadows was present at a meeting with President Trump at which participants discussed seizing voting machines and appointing a special counsel with top-secret clearance to investigate election fraud;
- Meadows traveled to Georgia to observe an election audit and himself participated in a call to Georgia’s Secretary of State in which the President advanced unsupported claims of fraud and urged the Secretary of State to disqualify enough votes to enable Trump to carry the state;
- Meadows reportedly introduced Trump to Justice Department official Jeffrey Clark (Co-Conspirator 4), who proposed that the Department advise state officials that the Department had found reasons to be concerned about election fraud and urge them to reconsider election results;
- Meadows forwarded allegations of election fraud to top Justice Department officials;
- Meadows received text messages and emails concerning plans to convince states to send alternate slates of electors to Congress and replied to these messages by saying things like “I love it”;
- Meadows participated in a telephone discussion with Trump campaign lawyers, Members of Congress, and hundreds of local officials about how to overturn some states’ electoral-college results when Congress met on January 6;
- Meadows sent a senior member of the Vice President’s staff a lawyer’s memo claiming that the Vice President had authority to declare six states’ electoral votes disputed, demand action by a specified deadline from these states’ legislatures, and then, if the legislatures failed to act, permit the House, voting by state delegations, to declare Trump reelected;
- Meadows communicated with organizers of the rally that immediately preceded the January 6 attack, one of whom expressed safety concerns;
- Meadows sent an email on January 5 said that the National Guard would be present on January 6 “to protect pro-Trump people”;
- Meadows, who spoke on January 6 with an official of the Defense Department, can describe what efforts, if any, Trump made to use the National Guard to suppress the attack;
- Meadows received many messages during the attack asking him to urge the President to instruct his supporters to end it; and
- Meadows is one of a small group of people who can describe which messages reached Trump, how he responded, and what he said, did, and failed to do as the attack continued.
Will Mark Meadows be to Donald Trump as John Dean was to Richard Nixon? Will Meadows, like Dean, be remembered more as a truth-teller than as a co-conspirator? We should know soon, even if not soon enough..