Stan Woodward Reportedly Concedes a Duty of Loyalty But Doesn’t Want His Name Used at Trial

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In this post, I pointed out what all the coverage of the Garcia hearing last week missed: The prior briefing had been about whether to hold a Garcia hearing. It wasn’t about what to include in the briefing, which should all stem from ethical conflict rules.

On Monday, Judge Aileen Cannon (while blaming the Special Counsel’s Office) ordered that briefing.

In SCO’s submission in response, they clearly laid out not just that they had established the reason why Stan Woodward couldn’t cross-examine a former client, but that they had laid that out from their initial briefing — over two months ago, they observe — on the Garcia hearing: it arises from the Bar rules in both Florida and DC.

As the Government stated in its initial motion for a Garcia hearing, filed more than two months ago, “[a]n attorney’s cross-examination of a current or former client presents a conflict of interest.” ECF No. 97, at 6. Nor can Mr. Woodward otherwise seek to discredit Trump Employee 4 at trial, including in closing arguments.

And this time around they did what they should have been prepared to do at last week’s hearing: Cite 11th Circuit precedent.

Under the Florida ethics rules, “attorneys generally owe duties of confidentiality and loyalty to former clients.” Med. & Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983, 990 (11th Cir. 2020); see Fla. Bar R. Prof’l Conduct 4-1.9. These duties both come into play when, as here, a former client testifies at trial against a current client in a substantially related matter. During cross-examination, the attorney might “improperly” use the prior client’s confidential information or, alternatively, hold back from “intense probing” to avoid using those confidences. United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994). When the subject matters of the representations are substantially related, “the court will irrebutably presume that relevant confidential information was disclosed during the former period of representation.” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999). And given the duty of loyalty, a lawyer cross-examining a client, including a former client, faces “an impossible choice: [the attorney] can either vigorously cross-examine the client-turned-witness and thereby violate his duty of loyalty to the client on the witness stand, or he can temper his cross-examination and risk violating his duty of loyalty to the client on trial.” United States v. Almeida, 341 F.3d 1318, 1323 & n.17 (11th Cir. 2003). [my emphasis]

In its filing, SCO accuses Woodward of denying his ethical obligations to a former client at the contentious hearing last week, then lays out Florida precedent establishing it.

At the hearing on October 12, 2023, Mr. Woodward disputed that he had a duty of loyalty to his former clients, referring to “my hypothetical duty of loyalty to a former client, which again we dispute that duty even exists.” 10/12/2023 Hearing Tr. at 19. Similarly, when the Government conferred with Mr. Woodward in connection with this filing on October 17, 2023, Mr. Woodward continued to question whether he owes an ongoing duty of loyalty to Trump Employee 4. There is no basis for dispute: “a duty of loyalty exists apart and distinct from the duty to maintain client confidences.” United States v. Culp, 934 F. Supp. 394, 398 (M.D. Fla. 1996). Indeed, although Mr. Woodward and Mr. Irving have agreed to have another attorney conduct the cross-examination of their clients, courts frequently disqualify attorneys even where the attorneys propose that another attorney will conduct the cross-examination of a former client. See, e.g., United States v. Cordoba, No. 12-CR-20157, 2013 WL 5741834, at *12 (S.D. Fla. Oct. 17, 2013); Delorme, 2009 WL 33836, at *7; United States v. Miranda, 936 F. Supp. 945, 952 (S.D. Fla. 1996); United States v. Perez, 694 F. Supp. 854, 858 (S.D. Fla. 1988). Consistent with these authorities, Mr. Woodward acknowledged today that his ethical obligations to Trump Employee 4 and Witness 1 may constrain his ability to discredit those clients at trial, including during closing arguments. [my emphasis]

Importantly, the full context — at the hearing — of Woodward’s suggestion that he does not owe Taveras any duty of loyalty pertained to moving to strike Taveras’ testimony.

I am not certainly prepared to advise Mr. Nauta if he is prepared to proceed with a trial in which he doesn’t know what role his principal choice of counsel can play because, again, in the case law cited by the Government this isn’t limited to summation. The Government used summation as an example, but would I also be precluded from filing a motion to strike Trump Employee 4’s testimony because that potentially implicates his credibility, or my hypothetical duty of loyalty to a former client, which again we dispute that that duty actually exists. [my emphasis]

Those citations SCO provided of instances where courts have disqualified attorneys entirely may be why — at least per SCO’s representation, though we shall see whether he actually says that in his own filing — Woodward conceded he may not be able to close on Taveras. He still seems committed to remaining in this impossible position, largely incapable of defending Nauta against a key charge.

But Woodard is still dug in on one topic: About whether his name can be used in conjunction with Taveras’ testimony.

It is all but certain that Trump Employee 4’s testimony before the grand jury (while represented by Mr. Woodward) and his subsequent retraction and disavowal of that testimony will be subjects of cross-examination and redirect. The questioning may also encompass the fact that Trump Employee 4 was represented by Mr. Woodward at the time of his grand jury testimony, that Mr. Woodward’s legal fees were paid by a PAC controlled by defendant Donald J. Trump, and that Trump Employee 4 procured new counsel and quickly retracted his prior grand jury testimony. All of these facts will be relevant to Trump Employee 4’s testimony and may come out at trial.1

1 When the Government conferred with Mr. Woodward in connection with this filing, he asserted that his name should not come up during examination of Trump Employee 4, but he agreed that the other information referenced above could be relevant. [my emphasis]

I suspect SCO was trying to avoid making all this plain. I also suspect they pulled a great many punches (though that may have arisen from page limits). According to earlier filings, SCO warned Woodward about this conflict in early 2023, and he did nothing about it.

Woodward will file his response today as well. I expect it to be quite contentious.

Stan Woodward Contemplating His Former Client Might “Become Unavailable” for Testimony

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Last week, Judge Aileen Cannon had the much delayed Garcia vote to make sure that Trump’s co-defendants, Walt Nauta and Carlos De Oliveira, had knowingly waived any conflicts their attorneys had. The reporting on the hearing all focused on the scolding Cannon gave the Special Counsel’s Office, because they had brought up a possible risk — that Stan Woodward would impugn Yuscil Taveras during closing arguments — they hadn’t previously briefed.

I do want to admonish the Government for, frankly, wasting the Court’s time because, had you brought up these issues in an appropriate way, we could have done this without circling the wagons and creating confusion that was unnecessary. So, I am disappointed in that.

Immediately after the hearing, journalists presented conflicting stories about the hearing, some reporting that biggest flashpoint was an assertion by the government that Stan Woodward should be categorically excluded from cross-examining his former client Yuscil Taveras at trial, and others reporting the problem to be that SCO’s David Harbach suggested that Woodward should also be prevented from maligning the man he used to represent in closing arguments.

None of the coverage I saw got something very basic right: what the past briefing had been about.

The past briefing was about whether to have a Garcia hearing. It wasn’t about what to include in a Garcia hearing.

David Harbach, arguing for Special Counsel, even pointed that out in the morning session.

MR. HARBACH: Specifically it is our view that a lawyer who suffers under a conflict, that — in that situation the lawyer is precluded from — by his duty of loyalty to his [former] client, from arguing to the jury that his former client lacks credibility or attacking his former client’s character.

And those obligations flow from the lawyer’s duty of loyalty to his or her former client, and do not turn on whether specific confidential information was provided to the lawyer that might or might not facilitate better or worse cross-examination of the witness.

THE COURT: All right. So, did you make this argument about sort of weaker arguments to juries in your papers?

MR. HARBACH: Not in our papers suggesting that we needed to have a hearing because that wasn’t necessary for the Court’s obligation to conduct this hearing.

Harbach pointed out — rather meekly — that previously they had only been arguing that Cannon needed to hold a hearing. She never asked what to include in it.

Don’t believe me? Here’s the tell: After the hearing, Judge Cannon ordered just that briefing.

On or before October 17, 2023, the parties shall meaningfully confer to further clarify the nature, scope, and potential manifestations of the conflicts alleged by the OSC regarding Stanley Woodward’s former representation of Trump Employee 4 and current representation of Witness 1. 1 This conferral should include a comprehensive discussion of the ways in which the OSC believes that Mr. Woodward’s former representation of Trump Employee 4 and current representation of Witness 1 could adversely affect Mr. Woodward’s performance so as to render his assistance of Defendant Nauta ineffective, in violation of the Sixth Amendment.2 The OSC shall disclose to defense counsel all legal authorities in support of its position so that Mr. Woodward may adequately advise Defendant Nauta prior to the continued Garcia hearing.

Sure, she blamed Jack Smith’s team, pretending they brought up new stuff. They did! But they did so only because she had never considered the full scope of the conflict.

She still isn’t. She views the conflict exclusively in terms of Nauta’s rights; she’s ignoring Yuscil Taveras’ right to have his past attorney-client privilege respected.

None of the discussion at the hearing addressed the obligations under the Florida Bar, which SCO included in their original motion.

The Rules Regulating the Florida Bar reflect these concerns, providing that, absent informed consent, a lawyer “must not represent a client” if “there is a substantial risk” that the representation “will be materially limited by the lawyer’s responsibilities to another client” or “a former client.” Fla. Bar R. Prof’l Conduct 4-1.7(a).4 Informed consent requires, among other things, that “each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.” Fla. Bar R. Prof’l Conduct 4-1.7(b)(4). The Rules further provide that “[a] lawyer who has formerly represented a client in a matter must not” either “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent” or “use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known.” Fla. Bar R. Prof’l Conduct 4-1.9(a)-(b). The commentary to the Rule explains that “information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client without the former client’s consent.” Fla. Bar R. Prof’l Conduct 4-1.9 commentary. [my emphasis]

And because journalists were so focused on Cannon blaming prosecutors, forgetting that she has already blamed prosecutors for her own fuck-ups and manufactured problems, they missed two specific things that Woodward said.

First, as ABC noted, Woodward was angriest that he might be be prevented from cross-examining Taveras. As part of his argument, he suggested he didn’t have to address that eventuality because Taveras — still a Trump employee — might instead “become[] unavailable.”

MR. HARBACH: So, that is why we think in this case it is crystal clear that Mr. Nauta should be advised and should be well aware of the possibility, likelihood, eventuality, however your Honor would like to put it, that his lawyer would not be able to cross-examine Trump Employee 4 at trial. That much seems clear, and we don’t, frankly, understand how Mr. Woodward could think that he could cross-examine Mr. — Trump Employee 4 under these circumstances. We are at a loss.

[snip]

MR. WOODWARD: To presume that I am incapable of cross-examining him is a presumption that is unnecessary because, contrary to the Government’s position, we don’t know that he will testify in this trial. There is the potential that the Court could preclude him from testifying. There is the potential that he becomes unavailable.

Woodward’s solution to a conflict is to contemplate that Taveras might become unavailable for testimony. Woodward did this even while arguing that SCO was asking both too early and too late for a conflicts hearing.

Plus, most coverage missed Stanley Woodward’s past claims.

It is absolutely bullshit that cross-examination didn’t come up. In Woodward’s sur-reply, his last bid to prevent this conflict hearing, he stated that of course cross-examination wouldn’t be a problem, because another attorney (Sasha Dadan) was available.

11 The Special Counsel’s Office cites particularly inapt conflict cases which reveal the lack of a sound basis to request the hearing that the Office now seeks. See United States v. Braun, No. 19-80030-CR, 2019 WL 1893113, at *1 (S.D. Fla. Apr. 29, 2019) (hearing as to, ”two defense attorneys from [the same firm, jointly] representing two defendants in this case[.]”); United States v. Schneider, 322 F. Supp. 3d 1294, 1296-97 (S.D. Fla. 2018) (addressing representation of two co-defendants, where counsel represented first defendant in his role as a cooperating government witness, and then thereafter newly took on representation of the second defendant, the target of the cooperation, while still representing the first cooperating defendant). The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale. [my emphasis]

I wrote about Woodward’s comments in a post called, “Stan Woodward Thinks Aileen Cannon Is an Easy Mark.”

We will get SCO’s brief later today about the scope of what Cannon should be asking, with Woodward’s due tomorrow, and the follow-up hearing Friday.

But things are going to get testy. In her order, Cannon finally copped onto how testy they might get. She envisioned the possibility of considering a disqualification motion after the Garcia hearing.

2 To date, the OSC has not moved the Court to disqualify Mr. Woodward as counsel or to impose remedial measures on Mr. Woodward’s ability to perform as counsel for Defendant Nauta [ECF No. 97 p. 9]. Any consideration of disqualification or imposition of other remedial measures will be addressed following the Garcia hearing as part of the Court’s decision to accept or decline any proffered waiver.

Taveras has not waived privilege. It’s not clear how, under Florida Bar rules, Woodward can comment about the conflicting testimony Taveras gave while represented by the DC attorney.

“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

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As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

  • Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

  • Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
  • Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
  • Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

  • Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
  • Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
  • Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
  • Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

After Threats Elicited by Gary Shapley’s Misleading Testimony, Hunter Biden Prosecutors Reneged on the Plea Deal

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In the wake of two news reports on the communications leading up to the aborted Hunter Biden plea, Jim Jordan et al demanded the documents shared with the Politico and NYT from Hunter’s lawyers. In response, Lowell sent the following documents, which Betsy Woodruff Swan published here:

While the letters include a familiar catalog of the Shapley and Ziegler media tour, there are a few details worth noting.

First, the August 14 letter goes to great lengths to distinguish the topic of Gary Shapley and Joseph Ziegler’s purported whistleblowing — prosecutorial misconduct — from the materials released, which focus on investigative material implicating Hunter Biden. That distinction ought be a way for DOJ to rein in the two purported whistleblowers, as Merrick Garland quickly did in the case of Michael Sherwin.

The letter claims, as Abbe Lowell has in the past, that some of the statements Shapley and Ziegler have made are false.

[T]he “facts” disclosed and conclusions reached are either false, legally incorrect, or were otherwise addressed during the various meetings between defense counsel and your Office.

If that’s true, Lowell should ask for a criminal investigation for their false statements before Congress.

It also reveals something that should be obvious but I hadn’t realized: The iCloud warrant which produced a bunch of WhatsApp texts, which Shapley discussed at length in his original testimony, has never been disclosed to Hunter himself, so must be sealed.

On several occasions during their testimony, Mr. Shapley and Mr. Ziegler discussed a sealed search warrant, and showed and discussed with the Committee certain fruits of that sealed search warrant. Because we have never been notified of any such “electronic search warrant for iCloud backup”— nor of any other warrant to search for and seize any property of our client 13—we must presume that Mr. Shapley and Mr. Ziegler were discussing, in violation of a sealing order, a search warrant that has been sealed. Nevertheless, Mr. Shapley purportedly produced WhatsApp messages that are the: fruit of these warrants, and they have now been published.” Moreover, Mr. Ziegler offered to produce to the House Oversight and Accountability Committee additional and more fulsome grand jury materials concerning these messages, with the intent of making such materials public.

So it’s not just that Shapley was violating grand jury secrecy (he was authorized by Ways and Means Chief Counsel to share tax information, but not grand jury information), he was also almost certainly violating a sealing order that remained in effect almost two months after Hunter Biden received a summons in conjunction with the tax charges (conveniently so for the purported whistleblowers, because the warrant affidavit may rely on poisoned fruit from their mistreatment of “the laptop”). Whatever judge authorized that warrant and gag — presumably DE’s Chief Judge, Colm Connolly — might be interested that investigative agents are just blowing off the gag they themselves presumably asked for.

The most alarming thing in the August 14 letter, though, is a claim that Leo Wise — who has taken the lead role in the prosecution — claimed in a July 31 call to be unaware of any grand jury leaks in the investigation, at all!

On a July 31, 2023, call, Assistant United States Attorney Wise stated he was “not aware” of any leak of grand jury information by the Government during the course of the Government’s investigation of our client. Such a statement was surprising given that Mr. Biden’s counsel have discussed such leaks with the Goverment on multiple occasions over the past two years and addressed these leaks in at least four prior letters and countless telephone calls with your Office.

[snip]

Yet, given your Office’s inaction in the face of a torrent of illegal leaks about your investigation of Mr. Biden, and now your reinvented denial that leaks ever happened at all—your Offices assurances are being rendered false.

It’s as if the guy Weiss brought in to salvage the case believes he has to simply deny what everyone watching can plainly see, that Shapely and Ziegler have set off a torrent of prejudicial information that could make it impossible for Hunter to get a fair trial, much less be exonerated if not charged.

In both the August 14 letter and the one from yesterday, Lowell claims that the political pressure Jordan et al have put on Weiss led the newly minted Special Counsel to ratchet up his charges.

The change to a rare misdemeanor failure to file/pay and a felony diversion for possession of a firearm (and now the actual filing of those firearm charges) occurred only after a chain of events starting with the improper disclosures arranged by you and your Committees of the so-called “whistleblowers” claims of prosecutorial misconduct and your, and the right-wing media with whom you coordinate, taking up those claims.

But there’s something that Lowell didn’t mention.

It’s not just political pressure that this media blitz has created.

It’s credible threats of violence.

As Ken Dilanian first reported, after Shapley started representing Lesley Wolf’s adherence to DOJ and FBI guidelines as political interference, she was targeted with credible threats. Thomas Sobicinski told the House Judiciary Committee how Shapley’s testimony had led to the harassment of employees, employees whose parents got calls and children got followed. He specifically agreed that Wolf “has concerns for her own safety.”

It’s not just that Shapley’s testimony has led to political pressure. It has led directly to credible threats of violence against the prosecutor who crafted the original plea deal.

And in the wake of those credible threats of violence, David Weiss decided to ratchet up the charges against the President’s son.

The threats of violence may not have caused Weiss’ subsequent decision to renege on the plea deal (though that is one thing that is likely to be the topic of litigation going forward).  But the public record, at least, makes clear that those threats of violence correlate with a decision to seek more punitive treatment of the President’s son.

And that’s a very chilling prospect: that MAGA right wingers could bully prosecutors into taking punitive action against Hunter Biden.

Gary Shapley’s Notes Show That Gary Shapley Misrepresented David Weiss

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When Gary Shapley wrote down what was said about charging Hunter Biden with tax crimes in California at a contested meeting on October 7, 2022, he quoted Weiss as saying that if the US Attorney declined to prosecute, Weiss, “will request approval to proceed in CA” [my emphasis].

When Shapley relayed what happened in the meeting to his boss around six hours later, he described that Weiss “would have to request permission,” [my emphasis] even while admitting he was “unclear” on what Weiss said about where he’d get that permission.

Shapley’s lawyers shared these handwritten notes, over three months into his media tour with the right wing congressional set, because they think the fact that Shapley wrote down his understanding that Weiss said, “he is not the deciding person” [the latter part of which is redacted in the hand-written notes], that they disprove the testimony of others at the meeting.

The Special Agent in Charge, Thomas Sobocinski, said that both before and after the meeting, he understood Weiss to be the final decision-maker.

But this discrepancy later in his notes — Shapley’s replacement of “will” with “would have to,” his replacement of “approval” with “permission” — instead reveals that Shapley misunderstood what was said in the meeting, and then misrepresented what happened both that same day, with his supervisor, and ever since, with dumb right wingers in Congress.

To be sure, both versions are consistent with what David Weiss and Merrick Garland have been saying all along — including to Jim Jordan in June and to Lindsey Graham in July: that if Weiss decided to bring charges outside Delaware and the local US Attorneys didn’t want to partner on the case, he could ask for Special Attorney authority under 28 USC 515 and Garland would grant it. Both versions are consistent with the process Weiss has laid out. You ask the local US Attorney, and if they say no, you get Special Attorney authority.

But in the notes Shapley took in the meeting, he recorded Weiss committing to taking the steps to charge the later tax years — the ones that had to be charged in Los Angeles, two of the three years that were part of the plea deal. In his email to his supervisor, Shapley transformed that into his panic that, “this case could end up without any charges,” [emphasis and panic Shapley’s], something that was sharply at odds with the commitment Shapley had recorded Weiss making in the meeting — will — to follow the process necessary to charge the case. Plus, Weiss’ description of seeking “approval” rather than “permission” substantially disproves Shapley’s claim that anything said at the meeting was “inconsistent with DOJ public position and Merrick Garland testimony.” Shapley had to reword what he originally recorded Weiss as saying to support that claim.

That he did so — that he rewrote his own notes to match his belief, and then shared the rewritten version rather than the original with Congress — damages his credibility rather than backing it.

To be sure, neither set of notes is reliable.

For example, there is at least one thing missing from Shapley’s hand-written notes that he records in the email to his boss: the substance of his objection to David Weiss’ decision not to charge the 2014 and 2015 tax years.

I stated for the record, that I did not concur with that decision and put on the record that IRS will have a lot of risk associated with this decision that there is still a large amount of unreported income in that year from Burisma that we have no mechanism to recover.

Shapley’s claim may not be (or may no longer be) true: at the plea hearing, AUSA Leo Wise stated that there was no restitution owed. But I have no doubt Shapley did make this objection. If he didn’t record making a statement he thought to be that important, then, what else did Shapley say that he didn’t write down?

More importantly, what did Shapley not say that he didn’t record?

There’s nothing unredacted in Shapley’s notes recording Sobocinski’s question — which Shapley included in his email to his boss — about whether there was any problem on the case with politicization.

FBI SAC asked the room if anyone thought the case had been politicized — we can discuss this [if] you prefer.

That’s important because, at least per Sobocinski’s interview with the Committee, no one raised concerns about politicization at the meeting. “I was asking in a room of leaders on this case to say, ‘Hey, we are working together. We’re moving this thing
forward. Do you think there’s any manipulation from the outside that’s stopping us from what we’re doing?'” Sobocinski told the House Judiciary Committee about the question. And, at least per Sobocinski’s representation, “nobody in that room raised their voice to say anything other.”

So unless the redacted lines at the end of Shapley’s notes record Shapley providing some kind of affirmative answer, then there’s no evidence he took the opportunity to express the wild claims of politicization he was making contemporaneously, but he also didn’t record himself passing up that opportunity. At least per Sobocinski’s memory, the SAC gave him an opportunity to air those concerns and he didn’t take it, an opportunity that might have elicited a very simple explanation about what Shapely was misunderstanding about how the Special Attorney process worked and might have saved us from all the theatricality that threatens all charges against Hunter Biden now.

Indeed, whether or not Shapley said anything in response to Sobocinski’s question, the most suspect part of his email to his boss was an offer to discuss politicization in person: “we can discuss this [if] you prefer.” Both these documents are designed to provide for accountability, but Shapley appears to have declined to write down anywhere what his claims about politicization were, which would have made him accountable to his claims just like he wants to hold Weiss accountable for what he understood him to say.

Shapley reorganized his notes between the hand-written ones and the email in a way that changes their meaning, too.

Per his contemporaneous notes, the first thing discussed after the discussion about the leak was Weiss’ rationale for not charging 2014 and 2015, the two more substantive years that would have to be charged in DC. Once you’ve explained that, then whether or not Weiss got Special Attorney status for DC is significantly moot (2016 was only ever treated as a misdemeanor).

In his email to his boss, though, Shapley moved that discussion to after his argument, covering the DC charges, the LA charges, and the involvement of DOJ Tax Attorney, that Weiss didn’t have authority to charge. If Weiss had already explained his prosecutorial decision about the most problematic Burisma years — something Shapley’s hand-written notes record him has having done — then none of the other complaints about these years (that Weiss or Lesley Wolf let the Statutes of Limitation expire, that Weiss didn’t get Special Attorney authority in DC) matter. Shapely reorders his notes to hide the fact that the DC decision didn’t matter.

The LA decision mattered — the one about which Shapley originally recorded Weiss saying he “will” pursue Special Attorney authority if need be. The DC decision did not.

Just as important a problem for Shapley’s credibility is that for more than three months, Shapley has been claiming the email was his best record of the meeting, without distinguishing what parts of the email were his editorial statements and what parts a record of the meeting. That parts of the email reflected him editorializing should have been clear to anyone smarter than Jim Jordan; Shapley’s use of “I believe” and “in my opinion” are a big tip-off.

But it’s clear that Republicans have nevertheless treated the email, and all its bullet points, as a record of the meeting. That’s most problematic with the way Shapley recorded his understanding that Weiss had asked for permission to file in DC, permission which hadn’t been granted.

Staffers in Congress have been quizzing meeting attendees about things Shapley included in his email, without making clear they were background and not contemporaneous notes. One example that relates to the way Shapley packaged up his notes, at several points Steve Castor quizzed Sobocinski about whether he, “remember[ed] anything in that meeting about the fact that D.C. had declined to bring a case?” Sobocinski didn’t remember that — but likely for good reason. Shapley doesn’t record it as having happened, at all, in this meeting (and Sobocinski did not entirely back Shapley’s claim that that is what did happen). All Shapley recorded in his hand-written notes is that when Weiss asked for Special Attorney status (which Shapley lists as Special Counsel), DOJ — not Matthew Graves — told him to follow the process, which requires first asking if the US Attorney wants to partner on the case.

Even in these hand-written notes, this comment may have been editorializing; after all, Shapley records it after Weiss had already delivered his decision not to charge 2014 and 2015. But his hand-written notes definitely don’t reflect anyone saying that Graves had refused to partner on the case at the meeting.

In Sobocinski’s interview, he talked about how Shapley’s little media tour has created more challenges to actually charge this case, including threats against team members, particularly Lesley Wolf. There is nothing that Shapley has released publicly that helps the case and a great deal that will give Abbe Lowell more ammunition to demonstrate that the people pushing for tax charges against his client were going nuts because they weren’t allowed to violate rules on Sensitive Investigative Matters and because they didn’t understand bureaucratic process.

This is yet another example: Gary Shapley provided his editorialized version of a meeting that, he claims, was his red line to Congress and only months later did he share the underlying notes. Not only do the notes show he misrepresented what Weiss said about Los Angeles, but they raise yet more questions about Shapley’s equivocations about a leak that happened to coincide with a red line that isn’t entirely backed by his own notes. The motivated inconsistencies in the notes are the kind of thing defense attorneys use to discredit entire investigative teams, and Shapley has simply offered it up.

At this rate, Shapley’s media tour will be singularly responsible for making it impossible for Weiss to do the one thing Shapley claimed had to happen: charges against Hunter Biden.

Stan Woodward Thinks Aileen Cannon Is an Easy Mark

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There’s a passage in Stan Woodward’s surreply to DOJ’s motion for a conflicts hearing in the stolen documents case that goes to the core of Woodward’s conduct in his representation of multiple witnesses in Trump investigations.

Woodward claims that because Yuscil Taveras testified in a July 20 grand jury appearance that he had not been coached (by Woodward, presumably) to lie about whether he had any conversation with Carlos De Oliveira, it’s proof that Taveras’ original grand jury testimony that he did not was not perjurious.

[T]he foregoing Surreply is necessary to correct the record with respect to the Special Counsel’s Office’s conduct in this matter. Specifically, defense counsel played no role in Trump Employee 4’s voluntary testimony before the grand jury resulting in the Superseding Indictment in this action.5 Superseding Indictment (July 27, 2023) (ECF No. 85). Moreover, when Trump Employee 4 testified, for the first time, before a Grand Jury in this District, Trump Employee 4 was unequivocal that, with respect to his prior testimony, he, “wasn’t coached,” and that nobody, “suggest[ed] to [him], influence[d] [him to say that th[e] conversation with Carlos De Oliveira didn’t happen.” G.J. Tr. at 50 (July 20, 2023). To that end, Trump Employee 4 did not retract false testimony and provide information that implicated Mr. Nauta, “[i]mmediately after receiving new counsel.” Reply at 4 (Aug. 22, 2023) (ECF No. 129) (emphasis added). Rather, after the Special Counsel’s Office issued a target letter on June 20, 2023, threatening Trump Employee 4 with prosecution, see Reply at 3 (Aug. 22, 2023) (ECF No. 129) (“[O]n June 20, 2023, . . . [a] target letter . . . identified . . . criminal exposure . . . entirely due to [Trump Employee 4’s allegedly] false sworn denial before the grand jury in the District of Columbia that he had information about obstructive acts that would implicate Nauta (and others).” [my emphasis]

Woodward provided no evidence — not one shred — to support his claim that Taveras didn’t change testimony. All he provided was inconclusive evidence that Taveras did not blame Woodward for his original, allegedly false, testimony.

And based off that unsupported claim, Woodward suggested that dealing with alleged perjury delivered in a DC grand jury in DC to support additional charges amounted to abuse of grand jury rules.

The argument of the Special Counsel’s Office, that it did not use the D.C. grand jury for the purpose of adding to the store of witnesses in the instant case, is unpersuasive.10 The theory the Special Counsel’s Office offers, that having called a witness before a distant grand jury to answer questions about events in this District and having nominally created an additional venue in which to claim that the witness was untruthful, should not be condoned. The approach taken by the Special Counsel’s Office – which unquestionably affected the presentation of evidence in the existing Southern District of Florida case – is a tactic inconsistent with precedent barring the use of a grand jury for trial purposes.

All of this is transparent garbage.

But he’s writing for Aileen Cannon, and so his unsubstantiated claim, on which he builds his renewed demand that Cannon exclude Taveras’ testimony altogether, might well work!

Woodward also plays temporal games by using comments Michelle Peterson and James Boasberg made on June 30, in the first conflict hearing, to claim he did nothing wrong.

5 As both the Chief Judge of the United States District Court for the District of Columbia and the First Assistant Federal Public Defender acknowledged:

[First Assistant Federal Public Defender]: Your Honor, one other thing. I did want to say for the record, I should have started with this, have seen no reason to believe that either Mr. Woodward or Mr. Brand or anyone else associated with this has done anything improper. This just came up at this point in time, and based on the status of the record, I’ve given [Trump Employee 4] my best counsel, and he will be making a decision based on everything he knows now.

THE COURT: Right. And thank you. And certainly my reading of the government’s motion for his hearing did not suggest that Mr. Woodward or Mr. Brand had done anything improper either. The government’s was a prophylactic measure to comply with the law as it exists regarding conflicts and to make sure that [Trump Employee 4] is aware of his rights. Hr’g T. at 6 (June 30, 2023) (Attached hereto as Exhibit C).

Those comments were made after just an hour of consultation between Peterson and Taveras. It’s not a comment Peterson made at the second conflicts hearing, on July 5, where Taveras said he wished to have Peterson represent him, much less after Taveras changed his testimony.

And while the exhibits Woodward included purport to support his false claims, they also reveal that the approach to the conflict hearing before Cannon is similar to what he tried — unsuccessfully — to pull before Judge Boasberg.

In an email to Boasberg’s chamber on June 28, Woodward accused the government — which filed this conflict motion with no advance notice to Woodward — of stalling on a conflicts hearing when Taveras testified in March and then played for more time and briefing.

[I]nsisting on a hearing on such short notice prejudices [Taveras] and any appointed conflicts counsel. Although the government alludes to an ex parte submission, neither the Court nor any potential conflics counsel has had the benefit of any submission on behalf of [Taveras]. Effectively, the government would have Mr. [Taveras] through counsel, present his defense to the government’s puported allegation of perjury in just a few days. Of note, the government filed its motion after meeting with us earlier today — a meeting at which we challenged the government’s evidence contesting the veractiy of [Taveras’] testimony. Among other things, government counsel conceded that the government did not believe [Taveras] engaged in obstructive conduct; and, in the heated colloquy that followed, government counsel blurted out that they believed Mr. Nauta had been untruthful to his colleagues concerning certain events related to [Taveras’] testimony, a fact wholly irrelevant to whether [Taveras] had committed perjury and evidencing the government’s clear motive in filing this motion.

Third, although we do not, as a general matter, oppose the appointment of conflicts counsel to consult with and advise [Taveras,] given the serious nature of the matters under investigation by the government, we also believe he deserves — is entitled to the benefit of — a brief responding to the government’s filing in which dozens, perhaps more than a hundred, cases are cited for the Court. Again, more than three months have passed since [Taveras’] testimony with just days’ notice on the Friday before a holiday weekend when travel to and from South Florida is has already proved problematic this week is not just unnecessary, it is unfair.

Again, none of that makes sense — we know DOJ was still obtaining new evidence, including of Nauta’s phone — that would have led to increased certainty that Taveras’ initial testimony conflicted with known evidence.

In June, Woodward tried to buy time and make his own case (and claimed it benefitted Taveras to make that case).

In August, Woodward bought an entire month. In his first response, he equivocally embraced a conflict review three pages in.

Nevertheless, defense counsel does not now – and would not ever – oppose an inquiry of Mr. Nauta by the Court to assure the Court that Mr. Nauta has been advised of all his rights, including the right to conflict-free counsel, so long as such inquiry is conducted ex parte and under seal.

This time around, having spent another month consulting with Nauta, Woodward led with support for a hearing at which Nauta would be asked if he had been advised of his right to conflict-free counsel.

This Court should hold a hearing pursuant to United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), to conduct an ex parte inquiry1 of Defendant Waltine Nauta as to whether he has been apprised of his rights, including the right to conflict-free counsel.

And in spite of the fact that Woodward bought this delay, in part, by claiming that DOJ had raised new information — they hadn’t; It was in a sealed filing — Woodward didn’t address one of the newly public details in DOJ’s filing: that they had raised his payment by Trump’s PAC in the conflict motion.

That said, this whole process likely isn’t for Woodward’s benefit, or Nauta’s. It is for Judge Cannon.

Among the things Woodward’s exhibits revealed is that DOJ had already alerted Judge Cannon to the conflicts twice before they filed their motion for a Garcia hearing.

We would also note that the court is already aware of the conflicts issue given that the government previously called this to the court’s attention – twice.

Cannon was already aware of these potential conflicfts.

And she did nothing.

Update: DOJ filed a reply in the parallel motion with Carlos De Oliveira, insisting on a hearing even if John Irving has gotten the other witnesses new lawyers.

Aileen Cannon Working Hard to Protect Stan Woodward; Doing Nothing to Protect Walt Nauta or Carlos De Oliveira

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In this post, I noted all the things in DOJ’s reply on their motion for a Garcia hearing that had to have come from the grand jury, and assumed that DC Chief Judge James Boasberg must have permitted DOJ to share it.

As described here, yesterday’s reply on the motion for a Garcia hearing in the stolen documents case revealed a good deal of grand jury information about Yuscil Taveras’ testimony.

It revealed:

  • Trump’s IT worker, Taveras, testified (falsely, the government claims) in March
  • DOJ obtained two more subpoenas for surveillance footage, on June 29 and July 11, 2023 (the existence of those subpoenas, but not the date, had already been disclosed in a discovery memo)
  • It included the docket number associated with the conflict review — 23-GJ-46 — and cited Woodward’s response to the proceedings
  • James Boasberg provided Taveras with conflict counsel
  • Taveras changed his testimony after consulting with an independent counsel

Under grand jury secrecy rules, DC Chief Judge Boasberg would have had to approve sharing that information, but the docket itself remains sealed and Boasberg has not unsealed any of the proceedings.

A filing submitted from DOJ shows that I was right.

It also shows that Judge Aileen Cannon and Walt Nauta attorney Stan Woodward are engaged in a game that is doing nothing to ensure that Nauta’s getting unconflicted legal representation, but it is protecting Trump’s protection racket.

Let’s review the timeline.

On August 2, DOJ filed their original motion for a Garcia hearing, describing, generally, that Yuscil Taveras had testified against Nauta, which presented a conflict for Woodward, even before you consider the three other possible trial witnesses — of seven remaining witnesses — he also represents. DOJ submitted a sealed supplement with information on those three as well as other information, “to facilitate the Court’s inquiry.” Five days later, Cannon ordered that filing stricken, stating that, the government had, “fail[ed] to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.” In her drawn out briefing schedule on the question, she instructed Stan Woodward to address, “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.”

On August 17, Woodward responded. He contended that Garcia hearings only covered when an attorney represented two defendants, but ultimately argued that, rather than adopt a more traditional method of resolving such a conflict (such as replacing Woodward), Judge Cannon should exclude Taveras’ testimony.

The government’s reply — filed on August 22 — is the one that made public more, damning, information on what went down in June and July.

Three more days passed before Woodward submitted a furious motion requesting opportunity to file a sur-reply. In it, filed 23 days after DOJ’s original submission and sealed filing, he accused DOJ of contravening, “a sealing order issued by the United States District Court for the District of Columbia,1” though in a rambling footnote, he admitted maybe DOJ had requested to unseal this ex parte.

1. Defense counsel is not currently aware of any application by the government to unseal defense counsel’s submission. To have done so ex parte is arguably less professional than deliberately violating the Court’s sealing order. The government did not solicit defense counsel’s position on the unsealing of defense counsel’s own submission, but appears to have deliberately misled both the District Court for the District of Columbia and this Court. Of course, if they did seek such an application ex parte, this would be the second time in as many weeks that the government has done so – a particularly ironic approach given the Special Counsel’s objection to the Court conducting any ex parte inquiry of Mr. Nauta.

In a fit of Trumpist projection, Woodward also complained that DOJ was doing things that might lead to tampering with witnesses.

2 In the time since the government’s submission, defense counsel has received several threatening and/or disparaging emails and phone calls. This is the result of the Special Counsel’s callous disregard for how their unnecessary actions affect and influence the public and the lives of the individuals involved in this matter. It defies credulity to suggest that it is coincidental that mere minutes after the government’s submission, at least one media outlet was reporting previously undisclosed details that were disclosed needlessly by the government.

Projection, projection, projection.

Well, it worked. Judge Cannon granted Woodward’s motion, even giving him one more day than he asked, until August 31 instead of August 30 (remember that she scheduled a sealed hearing sometime in this timeframe). Which will mean that because of actions taken and inaction by Aileen Cannon, Walt Nauta will go the entire month of August without getting a conflict review.

Meanwhile, on August 16, DOJ filed a motion for a Garcia hearing to discuss the three witnesses represented by Carlos De Oliveira’s attorney who may testify against him. Best as I can tell, Cannon is simply ignoring that one. Fuck De Oliveira, I guess.

After Cannon assented to yet more delay before she addressed the potentially conflicted representation of two of three defendants before her (someday, Cannon may even have to deal with conflicts Todd Blanche has, since he also represents Boris Epshteyn), DOJ submitted notice sharing a filing they submitted before the DC grand jury, assenting to Woodward’s request, filed just yesterday morning (that is, three days after their reply), asking to unseal stuff that was already unsealed.

It includes the Woodward filing, from which DOJ’s reply quoted, that Woodward claims DOJ cited out of context.

The full filing doesn’t help Woodward.

Indeed, Woodward’s own filing suggests that if Taveras wanted to cooperate with the government, that would entail seeking a new attorney.

Ultimately, this is little more than a last-ditch effort to pressure [Taveras] with vague (and likely nonexistent) criminal conduct in the hopes that [Taveras] will agree to become a witness cooperating with the government in other matters. See Government Filing, p. 10 (“A conflict may arise during an investigation if a lawyer’s ‘responsibility to his other clients prevents the lawyer from exploring with the prosecutor whether it might be in the interest of one witness to cooperate with the grand jury or to seek immunity if the witness’s cooperation or testimony would be detrimental to the lawyer’s other client.’ [] ‘Professional ethics prevent [an attorney] from advising a witness to seek immunity or leniency when the quid pro quo is testimony damning to his other clients, to whom he also owes a duty of undivided fidelity[.] [] In many cases, however, that advice is precisely what the client needs to hear, even, or perhaps especially, when it ‘is unwelcome’ advice that ‘the client, as a personal matter, does not want to hear or follow.’ [] (internal citations omitted)). Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government. However, [Taveras] has not signified any such desire and that means counsel for [Taveras] can continue to represent [Taveras] both diligently and competently. [my emphasis]

And the filing makes clear that DOJ addressed at more length the conflict presented because Woodward was being paid by Save America PAC; while I’m uncertain about the local rules in SDFL, in DC there is a specific rule 1.8(e), requiring informed consent when an attorney is paid by someone else. While Woodward addressed it (see below), Woodward’s own description that Taveras could get another lawyer if he wanted to cooperate would seem to conflict with that rule’s independence of representation, and when he addresses the rule, Woodward doesn’t address confidentiality.

Furthermore, when Woodward addresses why being paid by Save America PAC is only natural for Taveras because Taveras worked for Trump, he makes an argument that wouldn’t explain the entirety of his representation for Nauta — or, for that matter, Kash Patel, a known Woodward client who testified in the stolen documents case.

While the government has often sought to imply an illicit purpose for the Save America PAC covering the legal costs of certain grand jury witnesses, the truth has always been very simple and legitimate: many of the grand jury witnesses, including [Taveras], are only subject to this investigation by virtue of their employment with entities related to or owned by Donald Trump. Save America PAC has placed no conditions on the provision of legal services to their employees. Ultimately and in compliance with Rule 1.8, [Taveras] was advised that Save America PAC would pay his legal fees, that [Taveras] could pursue other counsel than Mr. Woodward if he so desired, that Save America PAC was not Mr. Woodward’s client, that [Taveras] was Mr. Woodward’s client, and that [Taveras] could always make the decisions relating to the trajectory of [Taveras]’s grand jury testimony. [my emphasis]

Taveras is only a witness because Trump paid him to do IT work. But for much of the conduct about which Kash must have given testimony, represented by Woodward, he was the Acting Chief of Staff at the Pentagon. That’s the period when, per Kash, Trump conducted a wild declassification spree in his last days as President before packing up boxes to move to Mar-a-Lago.

And while most of Nauta’s exposure as a witness (and now defendant) arises from things Nauta did as Trump’s valet after both left the White House, ¶25 of the superseding indictment, describing the process by which Trump and Nauta packed up to leave, entails conduct from before Nauta left government employ.

If Trump were to be charged with 18 USC 2071, Nauta would be a witness to that.

In other words, brushing off the financial conflict with Taveras is one thing, but this conflict is also about Nauta. And Nauta is now being prosecuted for conduct that may have begun when American taxpayers were paying him, not Donald Trump. One of the things Nauta may be hiding by not cooperating are details about Trump’s overt intentions as they both packed up boxes.

And that’s not even the most damning part of the filing DOJ submitted yesterday.

DOJ also submitted its initial motion to unseal grand jury materials, submitted on July 30, in advance of the Garcia motion.

That motion reveals, first of all, that DOJ informed Judge Cannon of the conflict hearing on June 27.

On June 27, 2023, the government filed a sealed motion asking the Court to conduct an inquiry into potential conflicts of interests arising from attorney Stanley Woodward, Jr.’s simultaneous representation of [Taveras] and Waltine Nauta (“conflicts hearing motion”); and a separate sealed motion seeking Court authorization to disclose the conflicts hearing motion by, among other things, attaching a copy of the motion to a sealed notice to be filed in United States v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira, No. 23-cr-80101 (S.D. Fla.) (“Florida case”). The Court granted both motions, and the government filed the sealed notice, with a copy of the conflicts hearing motion attached, the same day.

As DOJ noted in its reply, that’s what the sealed docket entries 45 and 46 are.

That is, Aileen Cannon knew this was happening in real time. DOJ wasn’t hiding anything from her.

That motion to unseal also describes that DOJ intended to file “all information related to the conflicts hearing,” including the appointment of Michelle Peterson to represent Taveras, in a sealed supplement to its motion for a Garcia hearing.

The government therefore moves for an order permitting it to disclose to the court in the Florida case all information related to the conflicts hearing, including the fact and dates of the hearing, the resulting appointment of AFPD to represent [Taveras], and, if necessary, any filings, orders, or transcripts associated with the conflicts hearing. The government initially intends to include such information only in a sealed supplement to its motion for a Garcia hearing.

In other words, these two docket entries that Judge Cannon ordered be stricken, five days after they were posted and therefore made available to both Cannon and Woodward?

They include the material that, Woodward claims, he had never seen before DOJ’s reply.

Judge Cannon just gave Woodward another bite at the apple, as well as another six days before his client gets a Garcia hearing, based off Woodward’s claim that he had never seen information DOJ had shared (and which would have been available to Woodward for five days) but then Cannon herself had removed from the record. DOJ did provide this information in its initial motion. But because of actions Cannon took — the judicial equivalent of flushing that information down the toilet — Woodward (after waiting three days himself before first asking Judge Boasberg to share the information) claimed that he had never seen it before.

DOJ may have had a sense of where this was going, because back on July 30, in the same paragraph where they asked for permission to submit this information as part of a sealed supplement, DOJ also asked for permission to share it in unsealed form if things came to that.

[T]o ensure that it does not need to return to the Court for further disclosure orders, the government also seeks authorization to disclose information related to the conflicts hearing more broadly in the Florida case, as the need arises, including in briefing and in-court statements related to the Garcia hearing.

Things did, indeed, come to that.

And Woodward may have gotten notice of all that from Judge Boasberg’s order on July 31.

Things are going to get really testy going forward (if they haven’t already under seal) because, in a filing that DOJ did not first ask permission to file (but which I suspect would be authorized by a sealed order elsewhere in the docket, not to mention general ethical obligations requiring DOJ to inform her of everything going on in DC), DOJ just revealed that Judge Cannon threw out precisely the information that she’s now using to grant Woodward’s request for a sur-reply and — between the three days he waited to ask and the six she granted him to respond — nine more days to delay such time before Walt Nauta might be told about the significance of all the conflicted representation Woodward has taken on.

But I also expect that this will escalate quickly in one or another forum. Aileen Cannon was informed weeks ago of two significant conflicts in the representation of defendants before her, and rather than attend to those conflicts (or decide, simply, that she was going to blow them off, which in some forms might be an appealable decision), she has helped Woodward simply stall any resolution to the potential conflict.

Remember how I’ve promised I would start yelling if I believed that Cannon was doing something clearly problematic to help Trump? I’d say we’re there.

Update: Corrected my own math on the delay, which I said was 11 days but is 9. Ignoring that Cannon asked for lengthy briefing on a topic that most judges would just issue an order on, the key delays are:

  • 5 days before Cannon flushed the sealed supplement down the judicial toilet
  • 3 days between the DOJ reply and Woodward’s panicked demand for a sur-reply based on a claim that DOJ hadn’t previously raised the things Cannon flushed
  • 6 days of delay before Woodward will submit his sur-reply

The Secrets within Donald Trump’s Stolen Secrets Docket

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As described here, yesterday’s reply on the motion for a Garcia hearing in the stolen documents case revealed a good deal of grand jury information about Yuscil Taveras’ testimony.

It revealed:

  • Trump’s IT worker, Taveras, testified (falsely, the government claims) in March
  • DOJ obtained two more subpoenas for surveillance footage, on June 29 and July 11, 2023 (the existence of those subpoenas, but not the date, had already been disclosed in a discovery memo)
  • It included the docket number associated with the conflict review — 23-GJ-46 — and cited Woodward’s response to the proceedings
  • James Boasberg provided Taveras with conflict counsel
  • Taveras changed his testimony after consulting with an independent counsel

Under grand jury secrecy rules, DC Chief Judge Boasberg would have had to approve sharing that information, but the docket itself remains sealed and Boasberg has not unsealed any of the proceedings.

The filing also explains two sealed entries in Judge Cannon’s docket: dockets 45 and 46.

DOJ informed Cannon of the grand jury proceedings in those two docket entries.

The Government notified this Court on the same day, by sealed notice, of the filing in the District of Columbia. See ECF Nos. 45, 46.

That explains, then, two of the multiple sealed entries on the docket. But those weren’t the only sealed dockets.

There was one before DOJ’s notice.

And one after.

Both of those may be orders from Cannon, since she wouldn’t have to ask for permission to file something under seal.

There’s the twin entry on August 2, in which DOJ asked to seal what was probably a description of the potential conflict involving Stan Woodward’s representation of three other witnesses who may testify against Walt Nauta.

Judge Cannon ordered those to be stricken.

Then there were five more — or more likely, two, and then three — on August 11 and 14.

All those sealed docket entries took place before — yesterday’s filing disclosed — the grand jury “completed its term” on August 17.

The Government notes that the grand jury in the District of Columbia completed its term on August 17, 2023.

DC grand juries generally sit for 18 months, but if this was a special grand jury focused only on this investigation (which has always been the assumption), it would have been convened (again, per the filing), in April, 2022, two months shy of that.

There’s no guarantee those other docket entries pertain to the DC grand jury. But it’s one possible explanation for the sealed entries.

Certainly, DOJ afforded itself of the opportunity presented by Cannon’s order to brief what she called “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertienent to the instant indicted matter in this district.

Waltine Nauta shall file a response to the Motion for a Garcia hearing [ECF No. 97] on or before August 17, 2023. Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. The Special Counsel shall respond to that discussion in a Reply in Support of the Motion [ECF No. 97], due on or before August 22, 2023.

As DOJ’s reply noted, this wasn’t post-indictment investigation. Rather, it was pre-indictment investigation for the indictment adding Carlos De Oliveira and adding new charges against Trump and Nauta. And DOJ had to deal with all that in DC, because that’s where Taveras’ gave his original false testimony.

Following the indictment in this district, it was appropriate to use the grand jury in the District of Columbia to investigate false statements by Trump Employee 4 and De Oliveira. Neither individual was named in the indictment against Nauta and Trump, and venue for charges based upon their false statements in the District of Columbia would lie only in that district. It therefore necessarily follows that the grand jury was not used “for the primary purpose of strengthening its case on a pending indictment or as a substitute for discovery,” even if that “may be an incidental benefit.” United States v. Beasley, 550 F.2d 261, 266 (5th Cir. 1977).

[snip]

A claim of improper use of the grand jury here is even further afield than in Beasley. Whereas the recanted testimony in Beasley was relevant only to the charges pending in the indictment, as described above, Trump Employee 4’s corrected testimony is probative of “crimes not covered in the indictment.” US Infrastructure, Inc., 576 F.3d at 1214.

Not only was it appropriate to use the grand jury to investigate false statements by Trump Employee 4 and De Oliveira, it was appropriate to use the grand jury in the District of Columbia, where the statements were made and where venue for any false-statement charges would be proper. See United States v. John, 477 F. App’x 570, 572 (11th Cir. 2012) (unpublished) (concluding that venue for a violation of 18 U.S.C. § 1001 is “proper only in the district or districts where the defendant made the false statement”); United States v. Paxson, 861 F.2d 730, 733-34 (D.C. Cir. 1988) (upholding conviction for perjurious grand jury testimony in the District of Columbia material to antitrust charges subsequently brought in the Northern District of Georgia). And it was necessary to bring to the attention of the Chief Judge in that district the potential conflict that arose from Mr. Woodward’s representation of Trump Employee 4 in those proceedings. As “an incident of [its] supervisory power, a court has jurisdiction” to consider potential conflicts of interest that “relate[] to a grand jury proceeding within that court’s control,” and when the Government discerns such a potential conflict of interest, it “is not only authorized but is in fact obligated to bring the problem to that court’s attention.” In re Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976).

Nauta is therefore incorrect when he claims (ECF No. 126 at 8) that the Government was “attempt[ing] to diminish the Court’s authority over the proceedings in this case and to undermine attorney-client relationships.” When a conflict arose in the context of Trump Employee 4’s status as a putative defendant in the District of Columbia, the Government raised the conflicts issue there; now that a conflict arises from potential cross-examination of Trump Employee 4 in the case against Nauta in this district, the Government has raised the conflicts issue here. Nauta makes no showing of improper use of the grand jury, let alone the strong showing that is required to rebut the presumption of regularity in grand jury proceedings.

There’s far more secrecy than there should be, for the prosecution of the former President, even accounting for the highly sensitive documents involved.

Not only has Cannon made it prohibitively difficult for the media to cover the proceedings, but she canceled an open hearing scheduled for August 25 in lieu of a sealed hearing — secret time, secret place — to discuss the classified protective order. She did that while refusing to let DOJ protect the secrecy of the grand jury in DC.

It’s her courtroom, and if she wants to pick and choose which proceedings against the former President become public, to some degree that’s her prerogative.

Having been forced to unseal these matters by Cannon’s order, though, this filing (and in the Garcia motion pertaining to John Irving), DOJ laid out how damning the alternative can be.

DOJ Invites Aileen Cannon to Avoid Another Reversible Error

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Nine pages into the twelve page reply regarding DOJ’s request that Judge Aileen Cannon hold a Garcia hearing to explain to Walt Nauta the potential hazards of Stan Woodward’s conflicts in the stolen document case, DOJ warns Judge Cannon that if she does what Woodward wants her to do, it will be (reversible) error.

In his response, Woodward had suggested that rather than hold a hearing to explain to Nauta the potential conflict and hazards to his defense, Judge Cannon should just exclude the testimony of Yuscil Taveras, the IT guy who testified against Nauta and Carlos De Oliveira.

To do that, DOJ argued, would be unprecedented, particularly given that Woodward had advance notice of this conflict.

III. It Would Be Error to Suppress Trump Employee 4’s Testimony

Nauta contends (ECF No. 126 at 4-5) that if the Court finds a conflict, it should preclude Trump Employee 4 from testifying at trial, rather than employ more routine remedies. That proposed remedy is contrary to precedent and—except for the district court ruling reversed in United States v. Messino, 181 F.3d 826 (7th Cir. 1999)—would appear to be unprecedented.

Courts have rejected exclusion of evidence as a remedy to avoid a conflict of interest, concluding that evidence that is “relevant to the Government’s case” should not “be excluded to accommodate a defendant’s choice of counsel.” United States v. Urbana, 770 F. Supp. 1552, 1559 n.17 (S.D. Fla. 1991); see Messino, 181 F.3d at 830; United States v. Lech, 895 F. Supp. 586, 592- 93 (S.D.N.Y. 1995). Exclusion of probative testimony “is an extreme sanction and would only harm the interests of justice.” Lech, 895 F. Supp. at 592. A “defendant’s choice of counsel” should not “take precedence over the Government’s discretion in deciding what charges to prosecute and how to present its case.” United States v. Pungitore, 910 F.2d 1084, 1142-43 (3d Cir. 1990).

[snip]

Nauta has not identified any case, and the Government is unaware of one, in which a court has excluded evidence to avoid a conflict on facts remotely similar to this case, where the Government put Mr. Woodward on notice long ago about potential conflicts, and he is now seeking to affirmatively use those conflicts to gain a tactical advantage at trial by excluding highly incriminating evidence to the benefit of not only his own client but also a co-defendant (Trump) whose PAC is paying his legal fees. The Court should not countenance this maneuver. [my emphasis]

Before they provided this implicit warning that if she makes such a decision, DOJ laid out how and why Taveras testified in DC, after the original indictment obtained in Florida. As I predicted, it’s because he had made false claims in an earlier appearance before the grand jury — one Woodward (who was still representing him) knew about.

In March, DOJ claims, Taveras gave false testimony to the grand jury about this, denying all knowledge of an attempt to destroy surveillance footage.

Before that, DOJ raised Woodward’s conflict, but he said he was not aware of one.

Then, after the June 8 indictment in Florida, DOJ warned Taveras, through Woodward, he was a target, and served two more subpoenas for surveillance footage. After serving the target letter, DOJ got DC Chief Judge James Boasberg involved and told Judge Cannon about it. Woodward raised no objection to a review of the conflict in DC. And that’s when Judge Boasberg assigned a public defender to advise Taveras, which led him to revise his testimony against Nauta and De Oliveira.

The target letter to Trump Employee 4 crystallized a conflict of interest arising from Mr. Woodward’s concurrent representation of Trump Employee 4 and Nauta. Advising Trump Employee 4 to correct his sworn testimony would result in testimony incriminating Mr. Woodward’s other client, Nauta; but permitting Trump Employee 4’s false testimony to stand uncorrected would leave Trump Employee 4 exposed to criminal charges for perjury. Moreover, an attorney for Trump had put Trump Employee 4 in contact with Mr. Woodward, and his fees were being paid by Trump’s political action committee (PAC). See In re Grand Jury Investigation, 447 F. Supp. 2d 453, 460 (E.D. Pa. 2006) (explaining that potential conflicts can be “further heightened by the financial dynamics of the joint representation,” where, for example, a client “did not independently select the” attorney but instead had the attorney “pre-selected for them by the attorney to the [person] who is the central focus of the grand jury proceedings”).

On June 27, 2023, consistent with its responsibility to promptly notify courts of potential conflicts, and given the prospective charges Trump Employee 4 faced in the District of Columbia, the Government filed a motion for a conflicts hearing with the Chief Judge of the United States District Court for District of Columbia (Boasberg, C.J.), who presides over grand jury matters in that district. The Government notified this Court on the same day, by sealed notice, of the filing in the District of Columbia. See ECF Nos. 45, 46. Mr. Woodward raised no objection to proceeding in the District of Columbia regarding Trump Employee 4. In fact, he responded that he “welcome[d] the Court’s inquiry into [his] representation of” Trump Employee 4, Response at 1, In re Grand Jury Subpoena, No. 23-GJ-46 (D.D.C. June 30, 2023), but asserted that he had no “information to support the Government’s claim that [Trump Employee 4] has provided false testimony to the grand jury,” and that “even if [Trump Employee 4] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the Government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him.” Id. at 3. According to Mr. Woodward, if Trump Employee 4 “wishes to become a cooperating Government witness, he has already been advised that he may do so at any time.” Id.

Chief Judge Boasberg made available independent counsel (the First Assistant in the Federal Public Defender’s Office for the District of Columbia) to provide advice to Trump Employee 4 regarding potential conflicts. On July 5, 2023, Trump Employee 4 informed Chief Judge Boasberg that he no longer wished to be represented by Mr. Woodward and that, going forward, he wished to be represented by the First Assistant Federal Defender. Immediately after receiving new counsel, Trump Employee 4 retracted his prior false testimony and provided information that implicated Nauta, De Oliveira, and Trump in efforts to delete security camera footage, as set forth in the superseding indictment. [my emphasis]

Because Taveras’ false statements to the grand jury were in DC, venue would have been DC.

Not only was it appropriate to use the grand jury to investigate false statements by Trump Employee 4 and De Oliveira, it was appropriate to use the grand jury in the District of Columbia, where the statements were made and where venue for any false-statement charges would be proper. See United States v. John, 477 F. App’x 570, 572 (11th Cir. 2012) (unpublished) (concluding that venue for a violation of 18 U.S.C. § 1001 is “proper only in the district or districts where the defendant made the false statement”); United States v. Paxson, 861 F.2d 730, 733-34 (D.C. Cir. 1988) (upholding conviction for perjurious grand jury testimony in the District of Columbia material to antitrust charges subsequently brought in the Northern District of Georgia). And it was necessary to bring to the attention of the Chief Judge in that district the potential conflict that arose from Mr. Woodward’s representation of Trump Employee 4 in those proceedings. As “an incident of [its] supervisory power, a court has jurisdiction” to consider potential conflicts of interest that “relate[] to a grand jury proceeding within that court’s control,” and when the Government discerns such a potential conflict of interest, it “is not only authorized but is in fact obligated to bring the problem to that court’s attention.” In re Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976)

The term of that grand jury ended on August 17.

Judge Cannon has already been reversed by the 11th Circuit in humiliating fashion on this matter once.

DOJ is trying to help her avoid a second reversal.

Meanwhile, twice in this filing (bolded above), DOJ notes that Woodward is being paid by Trump’s PAC. DOJ is inching closer to raising that as a separate conflict in his representation of Nauta.

Trump Changed the Lock in His Residence before Changing the Lock on the Storage Room

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In another motion for a Garcia hearing in the Trump stolen documents case, DOJ revealed that Trump changed a lock on a storage closet in his own residence on June 2, before changing the lock on the storage closet where his classified documents had been stored for months.

At issue is one of three clients of Carlos De Oliveira’s attorney, John Irving, that DOJ says may testify at trial.

Recall that Stan Woodward represents seven clients interviewed in this matter, and did represent Yuscil Taveras before he got a new lawyer and cooperated against Woodward client Walt Nauta. DOJ tried to describe those conflicts under seal, which Judge Aileen Cannon refused, which may be why DOJ has laid out these conflicts in an unsealed court filing.

The three witnesses whom Irving represents include a Trump Employee 3 — the person who told Nauta that Trump wanted to see him before Nauta flew to Mar-a-Lago and allegedly tried to delete surveillance video, a former Trump assistant (possibly Chamberlain Harris?) who knew of movements of boxes to Mar-a-Lago, and the head maintenance worker at MAL whom De Oliveira replaced, referred to as Witness 1 in the filing.

The most damning testimony the Witness 1 provided debunked the excuse De Oliveira made to explain why he was taking pictures of surveillance cameras at MAL.

Witness 1 was a maintenance worker at Mar-a-Lago who served as head of maintenance before De Oliveira took over that position in January 2022. Witness 1 has information demonstrating the falsity of statements De Oliveira has made to the Government. In addition to the false statements De Oliveira made to the FBI that are the basis for the false-statements charge in Count 42 of the superseding indictment, he also made false statements in an April 2023 interview with the FBI and members of the Special Counsel’s Office in Washington, D.C. In particular, when confronted with video footage appearing to show him photographing surveillance cameras in the tunnel at Mar-a-Lago near the storage room where the FBI recovered some of the classified records, De Oliveira claimed he was (1) looking for a shutoff valve because a water pipe had ruptured on the grounds of Mar-a-Lago, and (2) documenting a broken door below one of the cameras. Witness 1 has information about when the pipe broke and the door needed repairs that is inconsistent with De Oliveira’s statements.

But the more interesting testimony is that De Oliveira changed the lock on “a closet inside Trump’s residence … on June 2, 2022” after moving boxes with Walt Nauta.

Witness 1 also has information about De Oliveira’s loyalty to Trump and about De Oliveira’s involvement in the replacement of a lock—at the direction of Trump—on a closet inside Trump’s residence at Mar-a-Lago on June 2, 2022, the day Nauta and De Oliveira moved boxes as described in paragraphs 62-63 of the superseding indictment.

De Oliveira’s the guy who changed the lock on the storage room after Jay Bratt instructed Evan Corcoran to secure it, then gave away the key to some whose identity he claimed to forget when the FBI showed up on August 8 last year.

Agents had another concern: The lock on the door to the storage room was flimsy. The officials urged staff to put a better lock on the door, which De Oliveira did — using a hasp and a padlock to keep it secure, the people said. If there were still highly sensitive classified documents in the room, such a lock was far from sufficient, but it was better than nothing.

[snip]

When FBI agents arrived at Mar-a-Lago the morning of Aug. 8 with a court-issued search warrant, De Oliveira was one of the first people they turned to. They asked him to unlock a storage room where boxes of documents were kept, people familiar with what happened said. De Oliveira said he wasn’t sure where the key was, because he’d given it to either the Secret Service agents guarding the former president or staffers for Trump’s post-presidency office, the people said.

Frustrated, the agents simply cut the lock on the gold-colored door. The incident became part of what investigators would see as a troubling pattern with the answers De Oliveira gave them as they investigated Trump, the people said.

But apparently, sometime before that, De Oliveira added a lock to a closet within Trump’s residence, one that may have stored some subset of the roughly 35 boxes that didn’t get moved back into the storage closet so Corcoran could search them.

Perhaps that lock was designed to ensure that Evan Corcoran didn’t accidentally find the other 35 boxes full of classified documents.

The fact that he changed that lock makes his paltry efforts to secure the main storage closet all the more damning.