Here’s some interesting analysis on the co-conspirators and Trump’s chances of a successful defense (spoiler: it’s none) by Robert Katzberg, a former federal prosecutor and high-profile white-collar defense attorney.
He takes exception to some media analyses that suggest that by not indicting the co-conspirators, Smith intends to put them on notice that they should consider cooperating. Katzberg argues that the time for that is long past. Time is the enemy of someone considering flipping, because every day provides the opportunity for someone else to step forward, and for your potential deal to get worse. Pence and Meadows apparently already took the government up on the offer, so while it might be a bonus if another flipped, it isn’t the reason they weren’t indicted.
Instead, in addition to simplifying and speeding up the trial, the biggest reason to not include them was to avoid having them testify at the trial.
Jack Smith’s choice not to charge the six was made so that they will not be defending themselves at the Trump trial, and thus will not provide a jury with some sort of rational explanation for certain of the events at issue. If Trump were to call them at his trial now, each, as an unindicted co-conspirator, would be mad not to invoke his or her Fifth Amendment privilege against self-incrimination.
As for Trump’s possible defense, the “free speech” defense is for media consumption, it won’t see the light of day in the courtroom. Trump’s only real defense is that he was acting on the advice of experts, namely the co-conspirators. According to Katzberg, this has two problems:
First, except for cases involving a trial defendant’s confession, the evidence establishing Donald Trump’s criminal intent is as overwhelming as I have seen in my 40-plus years in the courtroom. Second, as pointed out before, none of the six “experts” he allegedly relied upon are likely to be available to so testify. Thus, the only way the former president can rebut the mountain of evidence establishing he knew he lost the election and that his attempts to overturn the result were illegal is to testify in his own defense and somehow convince a jury it was all an innocent mistake.
Even if the case against him were less overwhelming, as I have argued previously, Donald Trump is incapable of successfully testifying on his own behalf. He possesses no real and exculpatory facts to present to a jury and lacks the emotional and intellectual self-control to get through a direct examination, let alone a hostile cross-examination loaded with the legal equivalent of nuclear weapons.