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ARIZONA ELECTION INTERFERENCE INDICTMENT – CONSPICUOUS ABSENCES  
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Ryan Goodman
April 24, 2024
Just Security
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_ 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
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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
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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
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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.” 

Meadows: The January 6th House Select Committee final report has
the greatest details
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Meadows’ deep involvement in the false electors scheme on behalf of
Trump. Indicted in Georgia, Meadows’ own court
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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
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chief architect”
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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
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be on the basis that he “cooperated” with those investigations.
However, recent investigative reporting by CNN
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others has revealed that Chesebro apparently made false statements
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prosecutors in Michigan and Nevada while feigning cooperation with
their respective criminal investigations of false electors (see also
this analysis
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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
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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
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New York Times’ Maggie Haberman, Jonathan Swan and Luke Broadwater).
In the Fulton County, Georgia indictment, previous analysis
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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.

_Ryan Goodman (@rgoodlaw [[link removed]]) is
co-editor-in-chief of Just Security and Anne and Joel Ehrenkranz
Professor of Law at New York University School of Law._

_Just Security [[link removed]] is an online
forum for the rigorous analysis of security, democracy, foreign
policy, and rights. Founded in 2013, we aim to promote principled and
pragmatic solutions to problems confronting decision-makers in the
United States and abroad. Our expert authors are individuals with
significant government experience, academics, civil society
practitioners, individuals directly affected by national security
policies, and other leading voices. Our Board of Editors includes a
broad range of leading experts on domestic and international law and
policy. Just Security is based at the Reiss Center on Law and
Security [[link removed]] at New York University
School of Law._

* Arizona
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* voter suppression
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* 2020 elections
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