I'm glad I didn't comment on this aspect of the Revolver story about the January 6 Event. Of course there's plenty to be concerned about as regards the role of federal law enforcement, and of the FBI in particular. However, the claim that the use of the term "unindicted co-conspirators" is intended to conceal government agents and informants is, on the authority of experienced prosecutors and defense attorneys, flatly wrong: "Agents & informants are not included in the definition of unindicted co-conspirators ..."
This 👇🏻is how actual practitioners of federal criminal law (left & right) will see it. Agents & informants are not included in the definition of unindicted co-conspirators & it would be improper for prosecutors to try to “hide” them in that category. https://t.co/w4ojUgJeB8— Leslie McAdoo Gordon (@McAdooGordon) June 17, 2021
SWC weighs in on this, too, against Robert Barnes. However, I believe that McAdoo Gordon and McCarthy express this better. SWC seems to suggest--probably in a moment of keyboard carelessness--that government agents and informants are ipso facto unable to be part of the conspiracy
A "co-conspirator" must be part of the agreement to commit the criminal object of the conspiracy.
Someone informing the FBI about the conspiracy-- unless it is entirely after the fact--is actually working AGAINST the conspiratorial agreement.
That, of course, is how it's supposed to work. However, UC agents and informants have been known to go overboard and--contrary to instructions--actually cross the line into advancing the conspiracy in ways that would not have occurred but for their actions. That type of conduct will get the case dismissed. This can get factually very complicated, so I'll leave it at that. That issue may very well come up at trial--if trials are held. But the important issue for purposes of the Revolver article is addressed in the tweet above. The UC agents or informants may or may not have behaved improperly--that's a factual issue that will have to be hashed out later based on what is discovered about their participation. However, we can take it as given that no one labeled as an "unindicted co-conspirator" is in fact a government agent or informant. They will be witnesses.