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The Zombie Case against Trump’s Indicted Co-Conspirators

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Jack Smith signed the motion to dismiss the January 6 case against Trump, but his appellate lawyer, James Pearce, (digitally) signed the parallel request before the 11th Circuit.

Who knows whether that means anything.

But now that Smith has committed to sustaining the appeal of Judge Aileen Cannon’s decision as it applies to Walt Nauta and Carlos De Oliveira, someone needs to take over the case and write the reply, which is due on December 2. Pearce has done the primary work for all Jack Smith’s appeals and so could do so here — or, perhaps Jack Smith will close up shop, along with Pearce, and let Solicitor General Elizabeth Prelogar take over before she’s replaced by John Sauer in January.

One way or another, there’s likely to be a transfer of the Zombie case back to DOJ, where it will be suffocated with pillows never to be heard from again.

The decision to sustain the Nauta and De Oliveira case just long enough for Trump to shut down next year has certain ramifications I only touched in passing in this discussion with Harry Litman about what we might get in a report from Jack Smith, which is probably more accessible than this post about what declination decisions we might see (transcript here).

First, they’ve got due process rights. Meaning, you can’t say anything in a report that might endanger their ability to get a fair trial (a trial they’ll never face, of course). That may lead to redactions of the sort we saw in the original Mueller Report but which were re-released under FOIA. Or it may lead prosecutors to gloss certain things — such as the obstruction — in the report. In the chat with Litman, I noted that ABC reported that Walt Nauta and Trump went back to Mar-a-Lago after hiding documents from the FBI, which might make the report. But if it appears in there, it would need to be presented in such a way to protect Nauta’s due process rights.

It’s possible, even, that until the appeal, DOJ would avoid describing the investigative steps taken in the documents case after Smith was appointed in November 2022. The logic of Cannon’s opinion basically wiped out all that investigative work. Poof. Though it’s possible that Julie Edelstein and David Raskin — who left Smith’s team in October — have done something to recreate some of the work, such as the declassification that had happened in advance of an imagined Florida trial.

Meanwhile, sustaining the case against Nauta and De Oliveira creates an interesting dilemma for DOJ that may have repercussions for others and Trump’s DOJ going forward: how to get rid of the appeal. He would pay least political capital by just dismissing the appeal. But that would reflect a DOJ stance that Jack Smith was unconstitutionally appointed — something that might bind DOJ going forward (as if Pam Bondi won’t just pick Trumpy US Attorneys to do her dirty work like Bill Barr did) — though that may be unavoidable if Trump’s Solicitor General and Deputy Attorney General had both argued that Smith was unconstitutionally appointed, as they have.

But that would go some way to arguing that David Weiss’ appointment as Special Counsel is unconstitutional as well. It might give Hunter Biden, if his father doesn’t pardon him (and Alexander Smirnov, if he is convicted next month and not pardoned) cause to enjoin Weiss’ prosecutors from publishing a report; it would also make Hunter’s appeal of his charges far easier, especially in Los Angeles, where Weiss is not the confirmed US Attorney.

Which may be why (as both Litman and I suggested) Trump might want to pardon Hunter — to give the air of magnanimity to unintended consequences of his efforts to kill the case against him. To say nothing of the transparency into Trump’s first term that Hunter might get if he succeeds with his other appeals.

The case against Nauta and De Oliveira will be dead, one way or another, in two months. But until then, it’ll exist as a Zombie, having potentially unanticipated consequences.

Update: The full Jack Smith team has submitted its reply brief.

The Nuclear Weapons Document Trump Stashed under Bubble Wrap and a Christmas Pillow

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As noted, Jack Smith has filed his response to Trump’s bid to throw out his stolen document indictment because the order of certain boxes was not retained.

A key part of Smith’s response argues that document order within boxes hasn’t been central to any of Trump’s defenses to date, but in any case, his complaint about document order is a ruse (though Aileen Cannon likely won’t treat it as such). That’s partly because of the sheer variety of things found in boxes with classified documents, including “newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others,” making it far more difficult to retain document order.

And that’s partly because Trump kept moving items within boxes and boxes themselves around. The government included a Molly Michael interview, for example, where she described that some of the contents of boxes that she and Walt Nauta brought to Trump for sorting in advance of him returning 15 boxes to NARA in January 2021 got consolidated.

And pictures included as exhibits show that the spill of boxes Nauta discovered in the storage room was more extensive than previously disclosed — involving at least four boxes. Other exhibits show how the classified document exposed as part of that spill was found in the storage closet in box A-35 over a year later.

As the response and previous filings describe, that document — a Five Eyes document dated October 4, 2019 — was charged as Count 8.

A table included in the filing describes where all the charged documents were found.

So three of the charged documents were found in this box, the blue leatherbound box found next to Diet Coke bottles and some weird cult painting of Trump, in a closet off his office.

Those three documents, all classified Top Secret and at least two of which date to May 2018 (Matt Tait speculated after the search that one was a PDB pertaining to Trump’s withdrawal from the Iran deal), would be among the items included in this evidence picture.

This box is actually one of the only ones where the filter agent didn’t retain document order at all, so if Judge Cannon were to throw out charges because of document order (which would itself be unprecedented), it would implicate as few as three of the charges.

Side note: The narrative on this box confirms that Julie Kelly is a dumbass propagandist. It confirms that some of the documents in the box had cover sheets on them, and there were other loose cover sheets in the box.

After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. [my emphasis]

Julie the Propagandist is nevertheless reading a different part of the filing — which described cover sheets that are not in this picture — and claiming she was right.

Seven of the documents were found among these boxes in the storage room (the box with the rectangle is where the FVEY document caught in Nauta’s December 2021 picture ended up).

And fully ten of the documents charged were found under some bubble wrap and a Christmas pillow in this box, which would have been found in the storage room, perhaps on the opposing wall to the picture above.

 

That means that one of the documents stashed under the bubble wrap and the Christmas pillow, charged as Count 19, was classified Formerly Restricted under the Atomic Energy Act, meaning it pertains to US nuclear weapons.

Just about the only interesting treatment of document cover sheets happens to pertain to this box, which also happens to be the one that Stan Woodward started this whole stink about.

 

As Smith’s filing explains, the box included 32 documents with classification markings (of which 11 were confidential), all in one binder (could this be the Crossfire Hurricane binder?!?!). Because everything in the binder was related, it was impossible to reconstruct which placeholder went with which document.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

But as described, none of them are charged.

To sum up, then. Of the boxes from which charged documents were found, only one — the blue leatherbound box found in Trump’s office — clearly lost document order (but partly that would derive from there being so many classified documents found). The one box where document order was a problem — the one that Stan Woodward made a stink out of — has no charged documents.

But thanks for helping us clarifying, Stan, that Trump stored his document about nuclear weapons under a Christmas pillow.

Links

Jack Smith Response

Exhibit 1: Search warrant and affidavit

Exhibit 2: Interview report with person 81 describing how obsessive Trump was about his boxes at the White House

Exhibit 3: Additional copies of 2021 spill of four boxes

Exhibit 4: Evidence photo showing boxes stacked in storage room at beginning of search

Exhibit 5: 230322 interview with Molly Michael describing how Trump consolidated some of the boxes she and Walt Nauta brought Trump in 2021

Exhibit 6: 220817 302 documenting search of Mar-a-Lago

Exhibit 7: Interview transcript with Person 29 (Trump Organization official) describing how they turned off the CCTV server, but then had it turned back on directly at Mar-a-Lago during the search

Exhibit 8: Showing evidence picture of items 14 and 23, with classified docs pulled out

Exhibit 9: Photo log describing photos documenting search, including Trump’s office

Exhibit 10: Evidence photo of item 2

Exhibit 11: 302 from June 20, 2024 phone call with filter agent FBI 13 regarding the search of the leatherbound box

Exhibit 12: Showing how item 2 — the blue leatherbound box in Trump’s office closet with the most sensitive documents — was found next to coke bottles and a cult painting of him

Exhibit 13: Showing where classified documents were found

Exhibit 14: Documenting belated discovery of Top Secret document in box 57

Exhibit 15: Instructions for document handling for Special Master scan

Exhibit 16: Showing what random things were found in boxes 10, 19, and 28

Exhibit 17: 302 describing picking up additional classified documents from Molly Michael on August 9

Trump Motion to Dismiss

Exhibit 1: 220926 After Action Report on search, describing filter teams

Exhibit 2: Version of search warrant return

Exhibit 3: 220809 email documenting meeting with Molly Michael to collect more classified documents, which Trump misrepresented

Exhibit 4: 230605 documentation of scan process

Exhibit 5: 220928 email describing scan process, including replacement of cover sheets

Exhibit 6: 231128 memorialization of 230711 meetings with filter team to discuss search

Exhibit 7: 220806 hand-written notes memorializing planning for search

Exhibit 8: 231009 Todd Blanche discovery request

Exhibit 9: 231016 DOJ response

Exhibit 10: 240521 memorialization of May 2024 meetings between FBI and Special Counsel about search

Exhibit 11: 240324 hand-written notes of interview with privilege team

Exhibit 12: 2405?? hand-written notes of interview with privilege team

Exhibit 13: 240523 discovery letter turning over filter team materials

Exhibit 14: 240305 memorialization of item split

Exhibit 15: Notes showing Stan Woodward looking in Box A-14 (of which he took a picture), A-15, A-16, A-45, A-71, and A-73

Exhibit 16: 220830 documentation of evidence split

 

Stan Woodward’s Manufactured Scandal about Box A-15

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As I have noted, the FBI agents who searched Joe Biden’s garage rearranged the contents of the single box which Robert Hur attempted to prove Joe Biden had deliberately curated when they moved the contents from the beat-up box found in the garage to a new one.

When FBI agents repackaged the contents of the ripped garage box into a new box on December 21, 2022, it appears the order of a few of the materials changed slightly. This chapter discusses in detail below two folders that contained marked classified documents about Afghanistan: the manila “Afganastan” folder and the red “Facts First” folder. It appears the “Afganastan” folder was near the “Facts First” folder in the garage box when agents recovered the box, but the precise original location of the “Afganastan” folder at that time is unknown.

Had Hur been able to prove that the contents of this box had been in Biden’s Virginia home when he mentioned classified records to his ghost writer in 2017, and had Hur been able to disprove that that reference wasn’t to other documents Biden had recently returned to the White House or to the letter Biden sent Obama about Afghanistan, and had Hur been able to rule out Biden simply losing track of those files, and had Hur been able to prove that Biden himself and not staffers had been packing and repacking the box, then the order of the box would have been crucial to proving a case against Biden.

Hur hung much of his theory of willful retention on the other documents found with two folders containing classified Afghan documents.

Which is to say, the FBI’s sloppiness would have doomed the case if there were ever a case to bring.

Now, Walt Nauta attorney Stan Woodward is trying to claim the same with regards to the documents seized from Mar-a-Lago, to great effect among right wing propagandists.

He made the claim in a bid to get a delay in filing his CIPA 5 notices (which describe what classified information he’d need to release at trial).

Following defense counsel’s review of the physical boxes, the unclassified scans of the contents of the boxes, and the documents produced in classified discovery, defense counsel has learned that the cross-reference provided by the Special Counsel’s Office does not contain accurate information. For example, Box A-15 is a box seized from the Storage Room and is identified by the FBI as Item 10. The FBI Index indicates that the classified documents removed from the box (and where a cover sheet was inserted in its place) appear in the order listed below. The contents of the unclassified discovery pertaining to Box A-15 begins at USA-00340924, with the first inserted at the second page of the scan, or Bates labeled USA-00340925:

Per the FBI Index, the first purportedly classified document removed from box A-15 was assigned FBI Index code “ccc,” its classified bates begins at 0079, is one page, and bears the classification marking of “CONFIDENTIAL.” For reference, the physical cover sheet from the actual box for document “ccc” appears as depicted in the below image:

To state the obvious, a “Secret” document is not the same as a “Confidential” document. To be sure, a slip sheet in in Box A-15 does match the one scanned as part of unclassified discovery (at USA-00340925):

However, there is no way for defense counsel to know that the slip sheet depicted above actually corresponds with USA-00340925. And the slipsheet labeled “ccc” does not appear for several hundreds of pages later than the FBI Index indicated it would. Defense counsel’s review of these materials calls into question the likelihood that the contents of the physical boxes remains the same as when they were seized by the FBI on August 8, 2022.

Although the Special Counsel’s Office has indicated it will work with defense counsel to accurately produce an index cross-referencing the purported documents with classification markings produced in classified discovery as against the slip sheets now in the physical boxes, that process will take time. Until that process is complete, however, defense counsel cannot know for certain which documents produced in classified discovery were recovered from boxes in the Storage Room nor where those documents were found in the boxes. Accordingly, defense counsel cannot meaningfully identify, pursuant to CIPA § 5(a), the classified information it anticipates being disclosed at trial.

Jack Smith claims this is all a delay tactic invented because Woodward’s other recent delay tactics fell through.

But he concedes, first of all, that after the search team ran out of cover sheets because there were far more classified documents than they imagined, they used hand-written papers to mark where classified records had been found.

The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized. The investigative team seized any box that was found to contain documents with classification markings or presidential records.

And then they made sure that each box was handled separately, to ensure that the contents of each individual box remained separate. They failed, however, to keep all the boxes in the same order.

The Government has taken steps to ensure that documents and placeholders remained within the same box as when they were seized, i.e., to prevent any movement of documents from one box to another. The FBI was present when an outside vendor scanned the documents in connection with the now-closed civil case (see, e.g., Trump v. United States, Case No. 22-81294- CIV-CANNON, ECF No. 91 at 2 (requiring the Government to inventory the property seized from Mar-a-Lago); id. at ECF No. 125 at 3 (requiring the Government to “make available to Plaintiff and the Special Master copies of all Seized Materials” in electronic format by October 13, 2022)), and the boxes were kept separate during that process. When the FBI created the inventories, each inventory team worked on a single box at a time, separated from other teams. And during defense counsel’s review, any boxes open at the same time (and any personnel reviewing those boxes) were kept separate from one another. In other words, there is a clear record of which boxes contained classified documents when seized, and this information has long been in the defense’s possession, as discussed infra at 9

4. Location of Classified Documents Within Each Box

Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants’ review of the boxes. The inventories and scans created during the civil proceedings were later produced in discovery in this criminal case. Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.3 There are several possible explanations, including the above-described instances in which the boxes were accessed, as well as the size and shape of certain items in the boxes possibly leading to movement of items. For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried, especially because many of the boxes are not full. Regardless of the explanation, as discussed below, where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice.

3 The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court. See, e.g., 4/12/24 Hearing Tr. at 65 (Government responding to the Court’s question of whether the boxes were “in their original, intact form as seized” by stating “[t]hey are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents”).

While I think it ridiculous that the FBI hasn’t managed to keep boxes straight from either Trump or Biden, Smith’s argument — that this is entirely pointless to Nauta’s defense — should be sufficient. Unlike Biden and Trump, Nauta is not alleged to have curated any boxes. He is not accused of willfully retaining classified documents at all.

So the order of documents within the particular boxes is meaningless to his defense (though Trump, who has asked to file a sur-reply piling on, might make great use of this argument if this ever goes to trial).

Plus, it’s worth noting which box Woodward is focused on, A-15. That box happens to have, easily, the biggest number of classified documents in it, 32; a third of the items originally in the box were marked classified. And probably 11 of them, those marked Confidential, have since been declassified and provided in unclassified discovery.

In total, the FBI seized 77 documents with classification markings from the 12 boxes that were seized from the Storage Room, but of those 77 documents, 26 have now been produced in unclassified discovery.

No documents already declassified would be pertinent to a CIPA filing.

In other words, Woodward has selected a box that includes both official and handwritten slip sheets, had no Top Secret documents, but a lot of less classified documents.

Something (he knows from his Jan 6 crime scene cases) a shameless propagandist will wail about.

But not something substantive to Nauta’s case.

Walt Nauta Claimed Trump Hoarded Hairspray Cans in His Storage Rooms

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The transcript from Walt Nauta’s May 26, 2022 FBI interview, at which he allegedly lied about his knowledge of Trump’s boxes of classified documents, has been released.

Several times, Nauta comes off as a skilled liar. For example, when the FBI asked reiterated that they wanted to know where the boxes that were sent to NARA in January 2022 had been stored and if there were more, Nauta changed the subject to the Embassy in Madrid.

But when the FBI asked Nauta what was in Trump’s storage rooms, he claimed that Trump hoarded hair spray.

He later went on to claim that Trump had so many golf shoes, but the FBI noted those wouldn’t be in bankers boxes.

Ultimately, Nauta came off like a guy who was wildly impressed with his own stature.

It is like, wow. Now how do I transition from a guy who used to scramble eggs to now I’m working for a former President?

It’s not surprising he was unwilling to give that up. I mean, if Trump regains the Presidency it will all have been worth it.

NYT’s Limited Understanding of Trump’s “Tactics for Avoiding a Crisis Like the One He Now Faces”

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There’s a funny passage in the 2,800-word NYT piece contrasting how Trump has managed Michael Cohen and Allen Weisselberg.

Initially sympathetic, Mr. Trump called Mr. Cohen a “good man” and the search “a disgraceful situation.” He also called Mr. Cohen with a message — stay strong — and the Trump Organization paid for Mr. Cohen’s main lawyer.

But Mr. Trump’s advisers were concerned about witness tampering accusations and he stopped reaching out. Their relationship soon soured.

NYT claims — apparently intending this to be a serious explanation — that Trump stopped trying to buy Cohen’s silence with a pardon and payments for a lawyer because of concerns about witness tampering.

I mean, I’m sure some of NYT’s sources claimed that. But given the amount of witness tampering Trump continued to engage in — publicly and privately — after leaving Cohen to fend for himself, the explanation is not remotely credible.

A far, far more likely explanation — one that is also more consistent with other aspects of NYT’s story — is that Trump and his attorneys intervened in the privilege review of phone content seized from Michael Cohen to conduct a risk assessment. (NYT says it relied on court records to tell this story, but they don’t mention that Trump abandoned Cohen only after getting access to what had been seized and why.) What Trump’s team saw before them in both the seized materials and the warrants used to seize Cohen’s devices may have led Trump to conclude, first, that Cohen had already showed signs of betrayal, by secretly recording the phone call over which they planned the hush payments to Karen McDougal.

Mr. Cohen’s lawyers discovered the recording as part of their review of the seized materials and shared it with Mr. Trump’s lawyers, according to the three people briefed on the matter.

“Obviously, there is an ongoing investigation, and we are sensitive to that,” Mr. Cohen’s lawyer, Lanny J. Davis, said in a statement. “But suffice it to say that when the recording is heard, it will not hurt Mr. Cohen. Any attempt at spin cannot change what is on the tape.”

NYT (including Maggie Haberman, who was also part of this story) was the first to break that story, and did so in the days after Cohen hired Lanny Davis, but it is not mentioned here.

Perhaps more importantly, Trump would have gotten a misleading sense from reviewing seized materials that Cohen was only being actively investigated for the taxi medallions and the hush payment.

That warrant may have led Trump to sincerely believe that prosecutors were only looking at the hush payment and business-related crimes, as he claimed on Fox News.

When Mr. Trump called into one of his favorite television shows, “Fox & Friends,” a few weeks after the search, he distanced himself from Mr. Cohen, who he said had handled just “a tiny, tiny little fraction” of his legal work, adding: “From what I understand, they’re looking at his businesses.”

“I’m not involved,” Mr. Trump added three times.

The warrants against Cohen built on each other and so built on the Mueller investigation, as I laid out here and here. But the warrant overtly tied to the April 2018 seizure didn’t mention other aspects of the investigation that might have made Trump more cautious about hanging Cohen out to dry, had he seen them.

Trump would not have known that Robert Mueller had succeeded in doing something SDNY does not seem to have done: accessed Cohen’s Trump Organization emails from Microsoft, thereby discovering documents regarding Trump’s ties to Russia that Trump Org had withheld from subpoena responses. Trump would not have known, then, that Mueller had established that Cohen told Congress a false story to cover up Trump’s own lies about Russia. That led to the first damning testimony from Cohen about Trump: That on his behalf, Cohen had contacted the Kremlin during the 2016 election and then lied to cover it up.

Plus, if Trump used the privilege review as a means to assess risk, it was based on a faulty assumption, an assumption mirrored in the NYT story.

NYT ties Cohen’s import as a witness to the crimes for which Cohen was investigated personally, even focusing exclusively on the hush payment and ignoring the lies about Russia. In a description of the damage Cohen’s congressional testimony did to Trump, NYT suggests that damage was limited to the hush payment, the thing that Trump allegedly engaged in financial fraud to cover up (predictably, NYT doesn’t mention the financial fraud alleged in the cover-up, just the cover-up).

When he pleaded guilty to federal charges that August, Mr. Cohen pointed the finger at Mr. Trump, saying he had paid the hush money “at the direction of” his former boss — an accusation he is expected to repeat on the witness stand in the Manhattan trial. A spokeswoman for Alvin L. Bragg, the Manhattan district attorney, declined to comment.

Before going to prison, Mr. Cohen also appeared before Congress, where he was asked who else had worked on the hush-money deal. His answer: Mr. Weisselberg.

The far more damaging thing Cohen did in that congressional testimony, though, was to tee up the way Trump adjusted his own business valuations he used for his business to maximize his profits. That was the basis for the fraud trial against Trump Org, and if the verdict sticks, it may cost Trump a half billion dollars and, unless he finds a way to cash in on Truth Social, may create follow-on financial problems.

In other words, Trump seems to have imagined Cohen would not find another way of avenging being hung out like he was, and NYT doesn’t include that other way — predicating investigations that threaten Trump Org itself and led to Weisselberg’s twin prosecutions — in their story.

Ultimately, NYT is still telling this story as if the newsworthy bit is Trump’s continued success at cheating the law, what they describe as, “the power and peril of Mr. Trump’s tactics for avoiding a crisis like the one he now faces.”

This “power and peril” pitch makes Trump the hero of the story and Cohen and Weisselberg contestants in a reality show, with Cohen inflating that contest with his wildly premature boast that “the biggest mistake” Trump ever made was not paying for Cohen’s defense and his claim, “I was the first lamb led to the slaughterhouse.”

If NYT weren’t making this a reality show, it might take away different lessons:

  • Trump has invested a great deal in using associates and co-conspirators to learn of the criminal investigation into him, with a Joint Defense Agreement incorporating 37 people during the Mueller investigation and $50 million of Republican campaign funds invested instead in paying attorneys who will at a minimum report back on investigative developments. Even with that $50 million investment (and the potential damage it’ll do to GOP fortunes in November), Trump has fewer tools to discover the status of ongoing investigations than he had when Republicans on both Intelligence Communities were using the committee to spy on investigations for him. Yet even with far more access to information than he currently has about ongoing investigations (the two federal cases against Trump are different, because Jack Smith has overproduced discovery), Trump miscalculated with Cohen.
  • The risk Cohen posed was not just — as NYT portrays — that he’ll testify against Trump at trial, at this trial. It was that he would disclose information that implicated Trump (and Weisselberg) in new investigations, as he did. As such, one lesson to take away from this, at least for those who don’t have an incentive to make Trump the protagonist of all stories, is that those spurned by Trump know a whole lot of shit about him, and that shit could turn into investigations that implicate the fraud that lies at the core of his persona. John Bolton, Mike Esper, and Mike Pence are all people whom Trump accused of disloyalty who thus far have only shared shit about Trump when prosecutors came asking. That could change.
  • As noted, NYT didn’t mention that Trump only turned on Cohen after discovering that prosecutors had obtained a damning recording from his phone. But he’s not the only Trump associate whose own blackmail on Trump was implicated in a criminal investigation. Mueller’s prosecutors were seeking Stone’s notes of all the calls he had with Trump during the 2016 election when they searched his homes (it’s not clear whether they ever found it), the existence to which Steve Bannon was also a witness. Both Stone and Bannon got their pardons, perhaps because they were better able at leveraging dirt on Trump for legal impunity than Cohen was.
  • NYT describes the injury to Trump here as, “his long-held fear that prosecutors would flip trusted aides into dangerous witnesses.” That’s just weird. It’s as if NYT hasn’t considered that the real danger is that he’ll do prison time for his crimes. The focus on loyalty rather than truthful testimony is especially odd in a piece that describes that Hope Hicks is likely to testify in Alvin Bragg’s case, who’ll testify with less of the circus and more credibility than Cohen. After all, even Jason Miller, still a top campaign manager for Trump, would be a key witness against Trump in a January 6 trial if he repeated the true description of how the campaign started refusing to support the Big Lie after a period in 2020. Bannon provided damaging testimony in the Roger Stone trial by being held to his prior grand jury testimony, and he remains a MAGAt in good standing.

Sometimes, it’s not disloyalty that can sustain a conviction, it’s truth, even truth from still-loyal associates.

Not for NYT, I guess. In a piece trying to extend this analogy to Walt Nauta and Carlos De Oliveira (the latter of whom, who really does have a colorable claim he didn’t know he was obstructing an investigation, is not similarly situated in my opinion), NYT describes that they were charged for their loyalty, not claims that sound pretty obviously false in the indictment.

Like Mr. Weisselberg, Mr. Nauta and Mr. De Oliveira remained loyal, and they are now paying the price: Mr. Smith charged both men not only with obstruction of justice, but also with lying to investigators.

Nauta and De Oliveira got charged, in part, because prosecutors believe they lied to protect Trump because that is a crime, just like it was a crime when Cohen and Stone and Mike Flynn and George Papadopoulos and Paul Manafort did it (Manafort was punished but not charged for those lies). But Nauta, especially, almost certainly got charged because prosecutors still haven’t been able to account for how much Trump intended to steal classified documents when he left the White House and still haven’t been able to account for the stolen classified documents that got flown to Bedminster in 2022. Nauta probably figures it’s a good bet to hope that Trump wins the presidency, ends his prosecution (or pardons him) and rewards him with a sinecure. That’s how having dirt on Trump works! But the prosecution is not over yet, and especially given the likelihood that this won’t go to trial before the election, he may change his mind.

Trump has absolutely succeeded in bolloxing all his criminal cases and may well succeed in delaying all the rest until he can pardon his way out of most of them. But if that effort fails, basic rules of gravity are likely to kick in and Trump will no more be a protagonist than all the other suspected criminals investigated by state and federal authorities.

Stan Woodward Claims He Doesn’t Know Where the Missing Beautiful Mind Boxes Went

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Perhaps the most amazing detail in the stolen documents transcript of last week’s hearing before Judge Aileen Cannon is that until the summer, Trump still had a Q clearance.

There is a category of documents that it — actually in unclassified discovery, we learned a week or two ago that there is a certain category of documents that require what is called a “Q clearance” and it includes one of the charged documents, and we learned that it’s a Department of Energy program. We learned that President Trump continued to have an active security clearance, even after he was indicted in this case, with the Department of Energy. Now that, in our view, is the definition of Brady. It was — I’m not going to say it was buried, but it was provided to us in discovery as part of miscellaneous materials at some point in the third or fourth production. I mean, it is literally a memo from the Department of Energy dated June — dated late June of this year, June 28th of this year, saying that, oh, we should remove Donald J. Trump from the person who has an active security clearance. He has been charged with possessing a document in violation of federal law, when he has an active security clearance with the holder of that document.

The detail doesn’t help as much as Trump’s attorney, Todd Blanche, would have you think. Whatever clearance Presidents get under the Atomic Energy Act (especially since presidents don’t get clearance; on Bluesky, Cheryl Rofer suggests he may have gotten DOE clearance while still a candidate) obliges them to follow document handling rules that might not have been as meticulously spelled out for Trump under his access to other classified documents. That he still had access when he was found with nuclear documents in August 2022 only means he was affirmatively violating the terms of his Q clearance, not that he could legally store nuclear documents in his gaudy bathroom.

Most people who get charged under the Espionage Act have or had clearances; those clearances actually make it easier to prosecute them.

Though Trump finally added someone appropriate to an Espionage Act trial last month, former SDNY National Security AUSA  Emil Bove, Blanche still seems to have a woefully inadequate understanding of how 18 USC 793 elements of the offense get proven at trial.

And Jay Bratt seems to be unable to conceive that his counterparts (and, probably, Judge Cannon) fail to understand that.

Bratt’s attempt to explain all this — something that makes a lot of sense to me from covering so many of these trials — was just one of two times where (in the transcript at least) Cannon abruptly cut off Bratt, as she often does when she risks embarrassment.

BRATT: I do not — we do not believe that the motion to compel litigation needs to be complete before they can file with the Court their theory of defense with respect to the 793 charges, and it kind of strains credulity that they say they can’t do that. You know, the elements of 793 are unauthorized possession of a document containing national defense information, possessing it willfully, that is with knowledge that what you are doing is unlawful, and failing to return it to a proper person. All that information they can flesh that out for the Court, and there is really — they may have legal — separate legal challenges to the 793 charges, but if you look at the elements, those are the defenses: Either he didn’t possess it, or he was authorized to possess it, or the information doesn’t contain national defense information, or he wasn’t acting willfully, or he returned it before he was being asked to return it. Those are the defenses, and they may have other color they want —

THE COURT: But to some extent, of course, one would have to review the relevant classified discovery in order to formulate a meaningful response, even if maybe not entirely complete, it would be difficult to just sketch out a skeleton, so to speak, of your theory without really doing so rooted in the documents themselves.

MR. BRATT: So I’m not sure that you do need to be able to say, no, we know this doesn’t contain NDI for the Court to rule on whether or not what we are presenting in Section 4 is relevant and helpful to the Defense, I don’t think so. I understand that, you know, they have said in their pleadings that they are going to strongly contest whether or not the information was national defense information, strongly contest whether it was closely held. Our burden is to prove that it was, and we embrace that burden; but these documents, you know, I —

THE COURT: That’s fine. We don’t need to talk about the actual contents of the documents, obviously, given this is a public hearing.

Blanche was pretty obsessed with the classification determinations, marveling over the fact that prosecutors had to talk to the Intelligence Community before deciding what documents to charge, what documents they could charge.

We have seen communications between NARA and the Department of Justice and the White House and the Special Counsel that started way before what has been publicly disclosed and extensive meetings, extensive communications; and so we feel very strongly and expect that we will win on that, when we file the motion that NARA is absolutely part of this prosecution team and that the intelligence communities that they worked very closely with in determining the — well, from what we can tell, the particular documents that they chose to charge, so there is purportedly a tranche of documents that have classified headings on them, and then 32 that they decided to charge. That wasn’t just done in a vacuum. They didn’t just, you know, pick 32 documents out of a hat and say, “We will go with these.” There was a lot of coordination that we can tell from the materials we do have with the intelligence community that ultimately led them to proceed the way they did.

So yes, we have an answer with them. They say very strongly that they view the prosecution team as being limited to the Special Counsel’s Office and the FBI, and we very strongly believe that’s wrong.

That may have been a cynical ploy to treat the IC as part of the prosecution team, which in turn may be an attempt at graymail.

Blanche also claimed that the defense had not yet received all the classification reviews for these documents, and had yet to receive Jencks production for people he imagines will sit on the stand and attest to the classification of each document, in a trial where the standard is National Defense Authorization, not classification.

THE COURT: What about classification reviews, have you received all of those?

MR. BLANCHE: No, Your Honor, we have not received all of them. That is one of the things that we are continuing to ask about. We have received them for — I believe for the charge documents; but as what should be obvious from the volume compared to the 32 counts, there is a tremendous number of documents that are extraordinarily important to our defense that are purportedly classified that we don’t have any information about at this time.

[snip]

A little bit about the classified Jencks material, as was discussed. The issue of whether a particular document is classified or not is something for the jury. And what we are looking for in discovery and what we don’t have is that has to be from a witness. There has to be a witness that is testifying about why a particular document is classified; and as part of that, like any witness, we are entitled to 3500 and Jencks material and we don’t have that. We don’t have that for all the witnesses, and our concern is that there is this class or category of Giglio and Jencks material that we are going to get at some later date which we are then going to — it’s another Section 4 litigation, at that point, because we are going to then ask the Court what we can use to impeach the witness, what information we are allowed to cross-examine him or her on.

Bratt did correct Blanche to say that Trump had already gotten all the classification determinations for all the classified documents retrieved from Mar-a-Lago.

THE COURT: Now, I went through some of these categories with Mr. Blanche, but classification reviews, are those included in the 5,500 and/or the disks?

MR. BRATT: Yes. And just to respond to something Mr. Blanche said, and it may have been oversight, it is not just for the 32 documents. It is for all 340-some documents that were at Mar-A-Lago.

But I just think that Blanche doesn’t get how easy it’ll be to convince jurors that you can’t put nuclear documents in a beach resort shower (and that’s all before the smoke and mirrors that the government uses in all Espionage Act trials, which will be epically contentious here).

I don’t think he understands any of this.

This all brings me to something I’ve been wondering: what the government has been withholding anticipating its CIPA 4 filing, which has been delayed by various Trump games about CIPA. CIPA 4 covers stuff they’ll share with Judge Cannon to have her rule whether the material needs to be turned over to the defense (the standard is whether the material is relevant and helpful to the defense), and if so, whether DOJ can use substitutions for some of the information.

This is my updated track of the universe of classified discovery.

Pretty much everything that should obviously be there is there:

  • The stolen documents themselves
  • All the witness testimony about the documents
  • The discussions about classification reviews of the documents (which Brian Greer has suggested were likely somewhat limited in anticipation of trial)

But there’s one thing not mentioned — at least not obviously — that always proves contentious in 793 cases: The damage assessment.

One way defendants always attempt to prove that things aren’t National Defense Information is by pointing to a report — if they get one — that nothing blew up after they released a document or left it in their beach resort shower.

Often defendants don’t get them.

I’m particularly interested in what kind of damage assessment the Intelligence Community did here because of a footnote included in the 11th Circuit appeal last year, which I wrote about here:

A footnote modifying a discussion about the damage assessment the Intelligence Community is currently doing referenced a letter then-NSA Director Mike Rogers wrote in support of Nghia Pho’s sentencing in 2018. [This letter remains sealed in the docket but Josh Gerstein liberated it at the time.]

[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised. 4

4 Departments and agencies in the IC would then consider this information to determine whether they need to treat certain sources and methods as compromised. See, e.g., Exhibit A to Sentencing Memorandum, United States v. Pho, No. 1:17-cr-631 (D. Md. Sept. 18, 2018), D.E. 20-1 (letter from Adm. Michael S. Rogers, Director, National Security Agency) (“Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances.”).

Even on its face, the comment suggests the possibility that the Intelligence Community is shutting down collection programs because Trump took documents home.

You can’t very well do nothing after you learn some of the most sensitive government documents were parked on a stage in a room hosting weddings attended by all manner of foreigner and grifter. You can’t do nothing after learning that Trump freely blabbed about the content of his stolen documents to anyone who bought access to him. You can’t do nothing after a Five Eyes document gets dumped out of a box in a storage closet that musicians and other resort personnel have accessed. You’ve got to go to your Five Eyes allies and explain that America’s former President is a dumbass and so the allies should take measures assuming that some drunken guest got a look at that document.

You might not even be able to charge documents as sensitive as these if the underlying programs hadn’t had to be rolled up. The spooks are going to prefer to protect the programs over vengeance against the dumbass former President.

Which brings me to the most intriguing claim made at the hearing.

Stan Woodward — Walt Nauta’s attorney — claims that neither he nor the government have figured out where all the missing boxes have gone.

[T]he Special Counsel has directed us to certain portions of the CCTV footage that they view as the most relevant, but there is — from what we know and from our defense, there is a tremendous amount of CCTV footage that we believe has been produced that is not what they have identified that is extremely relevant to us. For example, to the extent that boxes were moved on occasions other than what is delineated in the indictment, that is certainly something that matters to us.

[snip]

We have, of course, the benefit of consultation with our clients and are able to talk about what video we should be looking at and what video we should not be looking at. And the entire nature of the allegations, of the charges in this case are about missing boxes, right? The indictment is charging Mr. Nauta — and I’ll just stick with my client, with Mr. Nauta — with having moved boxes. Some number of boxes come out of a storage room, a lesser number of boxes go into the storage room, and Mr. Nauta is charged with hiding those boxes from whether it is Trump’s then counsel or whether it is the Government. And obviously, we are interested in knowing where those boxes are if they are, in fact, missing. The CCTV footage is what is going to help us understand that riddle.

Now, the Government does not know where those boxes went. As far as I can tell, to this day, the Government does not know where the boxes they allege were hidden ended up.

[snip]

I have a whole separate computer that I’m using just to do these extractions so that I can go in and start watching this days of video so that we can make an assessment of what this case is all about and whether it is about missing boxes or about boxes that just weren’t found when the FBI conducted its search of the property.

Now, Woodward has a habit of saying things that I find … shall I say, unpersuasive?

This certainly feels like one of those instances, coming as it did amid a schtick whereby Woodward repeatedly referred to the government, then corrected himself to say Special Counsel, something that seems to mirror Judge Cannon’s own preferences for calling Jack Smith’s office the OSC (John Durham used this abbreviation but no one else does).

Woodward is attempting to claim that he needs to delay the trial past the election because he needs to review all of ten years worth of surveillance video to defend his client. I’ve seen him make similar claims in January 6 trials.

More importantly, this is not a remotely fair representation of the charges against Nauta, which have to do with Nauta claiming to know nothing about moving boxes within days of being caught on surveillance video moving boxes, then allegedly attempting to destroy the video that captured him moving those boxes. Importantly, even if someone else moved a bunch of boxes that aren’t otherwise included in the indictment, it doesn’t exonerate Nauta. It could even inculpate him: if boxes were at Mar-a-Lago for someone else to move because Nauta had taken steps to withhold them from the government, it means his alleged obstruction would have made those other movements possible.

Plus, one big reason why the government charged Nauta, I believe, is because they believe he knows what happened to the missing boxes, including the ones he packed up to go to Bedminster where they disappeared forever.

I don’t doubt that the government hasn’t accounted for all the missing boxes; certainly Bratt did not correct Woodward on this point.

But one reason the government would have had to get ten years of video is to attempt to see who else entered that closet, to see who was in the closet when a Five Eyes document tumbled out, to see whether any of the foreign visitors to Mar-a-Lago seemed to know to look in the closet.

That’s not something that would show up in the indictment, not without proof that Trump willfully told visitors where the documents were.

But if Woodward is telling the truth about needing to see who else was moving boxes around, rather than just using the volume of video to stall, it might suggest he’s trying to find out what you might otherwise learn from a damage assessment. It might suggest that either Nauta hasn’t been entirely forthcoming with Woodward or Trump isn’t being forthcoming with his lawyers or his trusted valet.

Learning what the government saw in the surveillance video about moving boxes is not remotely necessary for defending Nauta against the charges against him. It might have a lot to do with understanding how ugly the story prosecutors will tell at trial will be.

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.

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.