Will Congress Members Face Jack Smith Indictment? Experts Weigh in

Mention of six alleged co-conspirators in Donald Trump's latest federal indictment has sparked speculation about who else might be targeted by Special Counsel Jack Smith's prosecutors investigating attempts to overturn the 2020 presidential election result.

One viral thread posted on X, formerly Twitter, following the indictment that has been viewed nearly 1 million times in five days suggested that could include congress members.

PoliticsVideoChannel posted on August 3: "Looks like special counsel Jack smith may indict the GOP members of congress who assisted Trump in conspiring 'to overturn the presidential election and overthrow the government.'"

It continued "Jack Smith's decision to charge only Trump and list a half dozen co-conspirators may be an indication that this is just the initial indictment and that Smith is going to try and put pressure on the other six to move over to become cooperating witnesses."

Among those named were Republican Texas Senator Ted Cruz and Republican South Carolina Senator Lindsey Graham.

Little is known about PoliticsVideoChannel, an account on X that links to a website that carries a small number of mostly sensational stories.

Cruz, the thread stated, was connected by "ties to [former Trump attorney] John Eastman" and Graham by "phone calls" he reportedly made to a "Georgia official about the 2020 election."

Asked about the viral thread, a spokesperson for Graham told Newsweek that people should "tread very, very carefully about putting stock in anything some random twitter account is spewing."

Representatives for Cruz have been contacted for comment. Newsweek has also contacted a media representative at the Department of Justice for comment.

Former President Trump pleaded not guilty last Thursday to four felony counts arising from the Jan. 6 probe, including conspiracy against rights, conspiracy to defraud the United States, obstruction of and the attempt to obstruct an official proceeding and conspiracy to obstruct an official proceeding.

Congress Members Indicted for Jan. 6?

The order appointing Smith states that the special counsel "is authorized to conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021."

Sen. Graham was among a number of Donald Trump's inner circle subpoenaed to testify to a special grand jury in Georgia as part of a criminal investigation into alleged interference around the 2020 election.

Graham allegedly made at least two telephone calls to Georgia Secretary of State Brad Raffensperger and his staff in the weeks after the November 2020 election to raise the possibility of discarding some mail-in ballots in Georgia. Graham denied that the phone call amounted to him trying to have absentee ballots thrown out so the results favored Trump over Joe Biden.

Cruz voted against the certification of Trump's electoral college defeat in Arizona and Pennsylvania following the 2020 election.

However, these matters have been public knowledge for years now and there is no notion suggesting these actions, or others mentioned, amount to indictable charges.

Indeed, it is not explained how the claims around Graham's phone call and Cruz's link to Eastman could lead to an indictment.

It is not known whether or not Smith plans to indict anyone else over January 6. However, former federal prosecutors who spoke to Newsweek suggested while it was not impossible Smith would indict Congress members, doing so would require a mountain of evidence.

David Weinstein, a partner at Jones Walker LLP, said the order appointing Smith as special counsel suggested "that if he has collected the appropriate evidence he could indict other individuals for their involvement in Trump's alleged plot to overturn the 2020 election.

"Those other persons could include other Congressional members.

"But to do that he would have to collect reliable credible evidence showing criminal intent and their involvement in Trump's alleged conspiracy or another conspiracy.

"At this time I am not sure that is something he has the bandwidth to undertake."

Robert Fisher, a partner at law firm Nixon Peabody, told Newsweek the unnamed co-conspirators in the indictment were likelier to face charges but that it wasn't "a requirement prior to indicting additional defendants."

Fisher added: "I think he [Jack Smith] would need significant and overwhelming evidence before adding sitting U.S. Senators to this indictment."

Scott Fredericksen, a partner at Foley & Lardner LLP, said that while Smith has the remit to do so, he does not expect him to indict members of Congress.

"That just isn't going to happen," he said. "I think it would be more likely the moon is made of blue cheese."

The attorney general's order gives Smith scope to investigate "any person" that violated the law "in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021."

However, it may be some time before any such charges are brought. As it stands, there appears to be little to no evidence to support such a decision.