Michael Cohen thinks indictment suggests Jared Kushner is a "cooperating witness"

The six unindicted co-conspirators listed in former President Donald Trump's latest 45-page indictment, which accuses him and his associates of scheming to overturn the 2020 election, "are in the honeymoon stage" where they believe they might not be indicted, former Trump lawyer Michael Cohen claimed Wednesday.

"That is a foolish way to think. The government, especially Jack Smith, is not allowing anybody to escape," Cohen said during an appearance on "CNN Tonight," where he discussed the co-conspirators' possible hope to skirt prosecution. He added that he believes "Rudy Giuliani has already spoken."

"Rudy has no interest in spending his remaining days on this planet behind bars for Donald Trump," Cohen said of Giuliani, who is clearly identifiable as "Co-Conspirator 1" from the description in the indictment and met with prosecutors for a two-day proffer session in June.

Cohen also pointed out that it's important to note who is missing from the charging document.

"In fact, I think the more important thing in this indictment to look at, are not who the six co-conspirators are, but rather who is missing from this indictment. For example, you don't see any mention of Mark Meadows," he said before turning his attention to the former president's son-in-law. "You see nothing of Jared Kushner. Jared Kushner was the secretary of everything. How is it possible that he is not listed here? He was there, on Donald's lap, the entire time, from the day Donald entered the white house to the day that he left."

As for how he explains that absence, Cohen said he believes Kushner "is probably a cooperating witness."

The indictment also dredges up another mystery, according to The Daily Beast: Who did federal investigators tap in order to write the conspicuously unsourced passage about Trump's phone call on Jan. 6, 2021, with House Speaker Kevin McCarthy?

"At 3:00 p.m., the defendant had a phone call with the Minority Leader of the United States House of Representatives. The defendant told the Minority Leader that the crowd at the Capitol was more upset about the election than the Minority Leader was," the charging document read.

Federal prosecutors' lack of citation has fueled speculation about the origins of the information with questions swirling about whether there is a recording of the call, if Trump chief of staff, Meadows — who some believe was present in the room with Trump at the time — provided an account to investigators, or if McCarthy did.

At the time of the phone call, members of the House and Senate had just vacated their respective chambers minutes earlier, while the pro-Trump mob was continuing to storm the Capitol. 

Then-Rep. Jaime Herrera Beutler, R-Wash., came forward about a month after the Capitol attack with her version of the call, which she said McCarthy recounted to her. She reported that Trump sided with the rioters with no remorse, allegedly telling McCarthy that members of the mob were just "more upset about the election than you are."

"While it's possible Special Counsel Jack Smith is basing his description of the phone call off Herrera Beutler's public account, that would be a sharp departure from his normal tactics," The Daily Beast's Jose Pagliery wrote. "Indeed, paragraph 115 appears to be one of the very few instances in the indictment where Smith doesn't lay out his sourcing for a claim."

Meadows has remained silent about the matter, and McCarthy has not given any indication that he spoke with the special counsel's office. Both Meadows and McCarthy's office declined The Daily Beast's request for comment.

Shortly after the charging document was released to the public Tuesday, McCarthy posted a statement online about Hunter Biden's current legal battles and called the indictment the "DOJ's attempt to distract from the news and attack the frontrunner for the Republican nomination, President Trump."

Notably, McCarthy said a week after Jan. 6 that Trump "bears responsibility" for the insurrection, and according to Herrera Beutler during a February 2021 podcast appearance, McCarthy immediately blamed Trump for the attack. 

"He called the president and said, 'Hey, you basically need to get on TV, you need to call these people off,'" she said on the podcast. "And the president's response to him was, 'These aren't my people, these are Antifa.'"

"Kevin, to his credit, responded, 'No, they just came through my window, my staff are running, these are your people, they have MAGA hats on,'" she continued.

"And the president's response to him was, 'Well, Kevin, I guess they are just more concerned about this election than you are,'" Herrera Beutler concluded, painting a picture that now matches closely with the call's description in Tuesday's indictment.

The House Jan. 6 committee also described the phone conversation after their probe into it and the events of that day. 

"Multiple witnesses told the Select Committee that Minority Leader Kevin McCarthy contacted the President and others around him, desperately trying to get him to act. McCarthy's entreaties led nowhere. 'I guess they're just more upset about the election theft than you are,' President Trump told McCarthy," the committee wrote in its report. 

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McCarthy, however, sported a different version of the phone call and the events on Jan. 6, changing his story when discussing the matter with Michael Fanone, who defended the Capitol and resigned from the Metropolitan Police Department after suffering injuries during the riot. Fanone confronted McCarthy about the call in a private meeting that Fanone secretly recorded and was later aired on CNN. 

"While you were on the phone with him, I was getting the shit kicked out of me, almost losing my life," Fanone is heard telling McCarthy.

"I'm just telling you from my phone call, that, I don't know that he did know that," McCarthy responded.

A spokesperson for the special counsel's office would not clarify to The Daily Beast whether prosecutors relied on public reporting or an inside source. 

Former Justice Department attorneys did note, however, that federal prosecutors have more freedom than one might think when crafting an indictment.

"It's quite common for indictments to reference conversations without giving a source. The only reason this passage may stand out is that this particular indictment alludes to sourcing far more than usual," Columbia law professor Daniel Richman, who is also a former federal prosecutor, told The Daily Beast.

Richman added that the special counsel could have also received the details about the call from another person present in the room who was just told about the conversation, whom the government would not need to identify at this point.

"Even though it is unsourced in the indictment, there is a record of presidential phone calls. There is a presidential call log and a presidential diary which documents the nature of the call, even though the call itself is not recorded. McCarthy could have cooperated with prosecutors or testified before the grand jury. But it's more likely that this conversation was documented by a Trump or McCarthy staffer," former federal prosecutor Neama Rahmani told The Daily Beast.

Another former federal prosecutor, Scott Tenley, pondered if the information could have come from Meadows.   

"What about Meadows? What is he doing? Why is he quiet?" Tenley asked. "Is there an agreement with Meadows that we aren't going to expressly source him in a charging document? Maybe that's what his counsel demanded to keep the heat off of him over the next six or eight months."

"It would be abnormal, but this is an abnormal case. Mark Meadows is an abnormal witness," he added.

Former Rep. Denver Riggleman, R-Va., also questioned Meadows' role and level of cooperation in the investigation at-large during an appearance on MSNBC Thursday morning, Mediate reports. 

"When you're looking at the text messages from Mark Meadows, you know, alternate electors and state legislators were texting with Mark Meadows. Not only that, the people that were doing the crappy studies [in] Michigan … all that stuff runs through those text messages," he said. "So to come full circle, when you look at it, the amount of money that was coming in. The other thing is absolutely fascinating is that Mark Meadows, at this point, you're right, Joe, at this point was not as far as the definition, not on the descriptors for the co-conspirators.

"And I think to have the chief of staff who was involved with every single person on that co-conspirators list, think about it, every single person Mark Meadows was actually dealing with, every person. For him not to be on there is just a massive indicator to me," Riggleman concluded before signing off.

Scarborough continued the train of thought afterward, noting that Meadows had turned over a lot of evidence to investigations, including messages that likely "not only embarrassed a lot of [Trump's] allies at Fox News, but also provided a roadmap, a roadmap that Jack Smith walked down all the way to this 45-page indictment."

Geist went on to suggest that Meadows could possibly be seeking "redemption."

"In effect, he said, 'That's my testimony. Take it, take it. I want to help you along here. I'm just not going to show up and be seen on camera testifying.' And then more recently, of course, two weeks ago, we saw him walk into a federal courthouse offering no comment on January 6 because it's an ongoing matter," Geist said.

"So you can see where Mark Meadows, despite what we learned during those January 6 hearings, his extreme cowardice on that day, and it was, he said, 'There's nothing I can do about this. The big guy wants this and it's just going to happen,' that he is now perhaps trying to seek some form of redemption by helping Jack Smith make his case," he concluded.

"Or 'I just don't want to go to jail,'" Brzezinski quipped.

Former U.S. attorney Joyce Vance, however, argued online that the suggestions that Meadows flipped on Trump "feels a bit strong."

"Answering questions, truthfully under oath because he has no other choice? Since he's not an unindicted co-conspirator, that seems more possible," she wrote on X, the platform formerly known as Twitter.