What is an unindicted co-conspirator, exactly?

[paulthompson]

With all this talk about this person or that person possibly being named as an unindicted conspirator in the Plame case, could some legal mind please tell me what exactly that term means? The two words seem a bit contradictory. If you are determined to be a coconspirator, why are you unindicted?

[punpirate]

1. With regard to the administrative branch...

... it's a matter of respecting previous judicial findings of not being able to indict a sitting president--specifically Nixon. But, by naming the president in that way, in an ongoing prosecution, it enabled the prosecutor then, Leon Jaworski, to subpoena records related to Nixon's actions which then made it impossible for Congress to ignore impeachment of Nixon.

Cheers.

[longship]

2. Spring, 1974

As far as I know. (IANAL)

In 1974 the grand jury did not want the controversy of indicting a sitting POTUS. Possibly the independent prosecutor thought there would be a court case challenging the indictment. It was certainly Nixon's position that POTUS could not be indicted. So, in addition to indicting the six main WH conspirators (Haldemann, Erlichman, etc.) they handed down a sealed memo (is that what they called it?) naming Richard M. Nixon as an unindicted co-conspirator. Of course, the press got wind of this right away. (How? I cannot remember.) The feeding frenzy that resulted was something to behold. It caused a tremendous stir.

The House was already preparing to begin hearings on impeachment. The Senate hearings had completed the previous summer. The Saturday Night Massacre happened the previous October. By then, the country basically knew that Nixon was damaged goods. However, impeachment wasn't a sure thing until the smoking gun tape was revealed in August. That's the one where Nixon discusses having the CIA intervene in the FBI's investigation to stop it on the basis that it would reopen "the whole Bay of Pigs thing". As soon as people heard of this they knew that Nixon was toast.

[paulthompson]

3. okay...

I've heard that before about Nixon. However, there's talk these days about Cheney being named an unindicted coconspirator, and I understand that a vice president CAN be indicted for crimes while in office, just as Spiro Agnew was.

So, aside from the case of the president, can other officials be named as unindicted conconspirators, and why would a prosecutor do that?

[longship]

8. I suppose (IANAL)

Clearly a veep can be indicted. Agnew was and pled no contest to a felony while he was still veep.

I don't know why there's been so much talk about this, except for maybe people being ignorant about the particulars. We just don't know what Fitz will do. So the speculation is likely going a bit off the track.

It's fun to speculate, but one has to have one's reality filter in place. ;-)

[gratuitous]

10. I think Agnew was indicted . . .

I think Agnew was indicted for crimes he committed before he became vice president. If his crimes had been committed during his tenure as vice president, I think he would have to be removed by impeachment.

[yodermon]

9. History doofus, here:

What did Nixon have to do with the Bay of Pigs, and why was he worried about it being reopened??

[paulthompson]

11. Can someone explain this?

From what I understand, "the bay of pigs thing" was a coded reference to the JFK assassination (due to the large number of people involved in both) and Nixon was threatening to reveal what he knew about the real events of the assassination, as his ace in the hole to prevent being impeached.

But maybe someone who knows more can explain this better.

[yodermon]

12. heh heh *blush*

Ok you got me, I actually knew about that reference; I was trying to draw out a non-JFK-theory explanation of "Bay of Pigs".

I'd still love an explanation, if there is one... anyone?

[paulthompson]

4. still wondering...

...

[KharmaTrain]

5. A Question Of Constitutionality

I still haven't gotten a clear answer on this over the years. The reason I was told back in '74 was that at the time you couldn't indict a sitting president...or that the standards were extremely high. The only way the get an indictment is if Nixon had directly done the deed...pulled the trigger, per se...as opposed to being a part of a conspiracy.

Jawarski was running into a lot of problems getting information from the White House and kept running into executive privilidge that kept him from not only getting testimony, but also notes, phone records, tape recordings or anything else. By making Nixon part of the conspiracy, this was intended to put pressure on the White House and prep the ground for the Supreme Court challenge on Nixon's tapes...which Nixon lost.

Since then the rules have changed again...thanks to Paula Jones. The meme was that rules had to be set up to prevent the President and Vice President from frivolous or "partisan" lawsuit...but that was wiped away in the SCOTUS Jones decision. So if my interpretation of that ruling...which made Clinton fair game to any suit, I would imagine Chenney would be fair game as well.

Let the games begin...

[Tennessee Gal]

6. Here is what I found:

A co-conspirator is someone prosecutors believe entered into an agreement with at least one other person to break the law. Being unindicted just means the person hasn't been charged with a criminal offense. Co-conspirators can be unindicted for several reasons: They may be cooperating witnesses for the prosecution, or the government may not have enough evidence to convict them. Or they may be charged in another case. Or, as in the case of the hijackers, they can be dead, forgoing the need for an indictment. (Or, as in the case of Richard Nixon, they may be the president, and there may be doubt that a sitting president can be indicted, so you defer the matter to Congress.)

So why name them on the indictment? Probably because the prosecution will want to use out-of-court statements made by the co-conspirators. Normally, out-of-court statements are considered hearsay. But under the federal rules of evidence, a statement is not hearsay if it is made "by a coconspirator of a party during the course and in furtherance of the conspiracy" (one of several hearsay exceptions). In order for a judge to admit that kind of statement into evidence, the prosecution must prove by a preponderance of the evidence that the person making the statement was a member of the conspiracy. (That burden of proof—"a preponderance of the evidence"—is lower than the "beyond a reasonable doubt" standard that a jury needs to convict someone.) There's no requirement that the unindicted co-conspirators be named in the formal indictment to get co-conspirator statements into evidence, but doing so may increase the likelihood that a judge will admit the testimony.

edited: to add second paragraph

[paulthompson]

7. Aha!

Bingo. That was very informative. Thanks.