Published by The Lawfare Institute
in Cooperation With
Monday afternoon around 12:00 p.m. finds me outside the entrance to the Wilkie D. Ferguson, Jr. federal courthouse in Miami–where Donald J. Trump is scheduled to be arraigned Tuesday at 3:00 pm. Like a lot of journalists, I am there scouting out a courthouse I have never seen before so that I know my way around on a day that’s sure to be chaotic.
It is raining, and I take cover under an overhang of the modern court building. A couple of young people come by and stand near me, chatting; I later learn they are interns for NBC, assigned to get into any line that may form near the entrance—and stay there. Some other folks, who turn out to work for ABC and the Washington Post, come over as well.
Before I know it or realize what’s going on, a media line for the hearing has begun to form around me, behind me to be precise, because other news organizations have determined that I am waiting in line. I try to explain that I am not in the line, much less starting the line. I suggest that we all agree that there is no line. But the line, having now decided that it is The Line, refuses to break up. And that means I can’t leave either. I am, after all, first in The Line—and nobody gives up a position at the head of The Line.
It is a very long night.
When I finally enter courtroom 13-3, 27 hours later, Trump is already seated at a table on the right-hand side of the room. Overhead, a warm white light appears to shine directly on the former president, casting his orange-blonde hair in a golden hue. He is, both literally and metaphorically, in the limelight. Yet it strikes me that Trump—the man who positioned bigness as a central issue of American politics (“hugely,” “bigly,” “little Marco”)—looks unmistakably small.
The courtroom is large, almost cavernous, adorned with slabs of creamy marble and caramel wood. Across the room, the judge’s bench towers over the rest of us.
Trump, for his part, sits hunched between his attorneys, his trademark grandiosity exchanged for something like solemnity or melancholy.
A murmur travels down the row in which I am seated as members of the media spot the man who has played a role in bringing the famously braggadocious former president to this courtroom: Special Counsel Jack Smith. He is perched in the front row of the gallery on the left side of the room, behind the table where his colleagues from the Justice Department are seated for the arraignment. Sporting a characteristically steely expression, Smith appears to be pointedly staring at Trump as we await the judge’s entrance.
At approximately 2:55 p.m., Judge Jonathan Goodman sweeps into the room as a court officer shouts, “All rise!” Goodman, a magistrate judge, will handle today’s arraignment, though Judge Aileen Cannon—who last year made a name for herself by ruling with flamboyant error in favor of the former president who appointed her to the bench—will preside over the case.
“Please be seated, make yourselves comfortable,” Judge Goodman begins. He then proceeds to introduce the case that brings us all to the Miami federal courthouse—or, rather, that brought us here 27 hours ago: The United States of America v. Donald J. Trump and Waltine Nauta.
The parties, for their parts, introduce themselves. On Smith’s side of the courtroom, for the Justice Department, it’s David Harbach of the special counsel’s office. He is joined by his colleagues in the National Security Division, Jay Bratt and Julie Edelstein. For Trump, it’s Chris Kise, the former Florida solicitor general to whom Trump reportedly shelled out $3 million to hire last year, and Todd Blanche, a white collar defense attorney who is also on the former president’s criminal defense team in the case brought by Manhattan district attorney Alvin Bragg. For Waltine Nauta, Trump’s “body man” turned co-defendant, it’s D.C.-based attorney Stanley Woodward, who recently made headlines after he reportedly alleged prosecutorial misconduct on the part of Bratt.
With introductions done, the judge is ready to arraign the former president of the United States on 37 felony counts related to unlawful retention of classified documents and obstruction of justice.
Trump’s counsel enters a plea on his behalf: “Your honor, we most certainly enter a plea of not guilty,” Blanche declares.
Judge Goodman proceeds to move through the customary steps of a federal arraignment proceeding. He first announces that he will be issuing a “Brady order”—basically, a court order requiring the government to provide Trump and Nauta with exculpatory evidence under the Supreme Court’s decision in Brady v. Maryland.
Then Judge Goodman turns to whether Trump will be released or held in custodial detention pending trial—the latter of which would be a near-certain outcome if this were any other defendant.
But Trump is not any other defendant, and the Justice Department has apparently recommended several extraordinarily lenient conditions of pretrial release. Judge Goodman notes that a bond recommendation from the government was attached to the summons Trump received on the day of his indictment on June 8, 2023. The government’s recommendation, he says, is that Trump should be released on a “personal surety bond with no financial conditions.” In other words: The Justice Department wants Trump released without requiring the payment of bail.
What’s more, Goodman continues, the government recommends only two of the five standard conditions of release that typically apply to defendants awaiting trial: First, that Trump will not commit any new state, federal, or local criminal offenses and, second, that Trump will appear in court as may be required. While most defendants in Trump’s position would be slapped with restrictions that, for example, prohibit travel outside of Florida without permission from the court, the Justice Department has declined to pursue such restrictions. The government does not, Goodman notes, view either Trump or Nauta as a flight risk or a danger to the community. For that reason, the government has similarly declined to pursue any special conditions of release for Nauta.
Goodman addresses Blanche: I assume, he says, that the former president does not have “any problem” with the condition that he must refrain from violating any federal, state, or local law while on release?
“I assure you he does not,” Blanche replies.
Then Goodman announces that he has “some questions” about the Justice Department’s recommendations. “Is the prosecution asking former President Trump to surrender his passport?” he queries. Harbach, speaking on behalf of the Justice Department, confirms that the government is not asking Trump to surrender his passport or any restrictions related to international travel. Further, Harbach continues, the prosecution is not seeking a restriction requiring Trump to avoid contact with his co-defendant, witnesses, or victims.
Now Goodman is ready to make a ruling. As to Trump’s release, he agrees with the government’s recommendation: “I’m going to authorize a personal surety bond with no financial component,” he announces.
But Goodman isn’t willing to be as lenient as the government is with respect to the special conditions of that release. “Despite the parties recommendations,” he says, “I’m going to impose special conditions.” Specifically, Goodman wants Trump to avoid contact with witnesses and victims in the case except through counsel. He asks the government to submit a list of witnesses and victims so that Trump would know whom to avoid by way of abiding by the restriction.
Continuing to enumerate the special conditions of Trump’s release, Goodman further says that Trump should avoid talking to Nauta about the case. He emphasizes that he customarily would require no contact whatsoever between co-defendants. But here he recognizes that Nauta works for Trump, and it would thus be “impossible” for the usual condition to apply in this case. For that reason, Goodman says the restriction will only apply to Trump and Nauta’s communications about the case itself.
Here Blanche interjects: “Your honor,” he asks, “may I be heard on the special conditions?”
After receiving permission to continue, Blanche says that the “problem” with the conditions enumerated by the judge is that many of the likely witnesses in the case are part of Trump’s protective detail or long-time employees. “For him not to be allowed to have contact with them would in our view be inappropriate,” he stresses. To emphasize this point, he notes that the same challenges that exist in restricting Trump’s communications with Nauta similarly apply to Trump’s communications with his security detail and employees. “As one example,” he continues, a “key witness” is the President’s lawyer. For those reasons, Blanche urges the court to reconsider its restriction on communications with witnesses.
Then Harbach, rising at the judge’s request for a response, offers the government’s view. Noting that the government is “cognizant” of the issues raised by Blanche, Harbach suggests that the prosecution come up with a non-exhaustive, narrowed list of witnesses that could “accommodate” Blanche’s concerns. After producing the list, he advises, the government could confer with Trump’s legal team to work through any practical difficulties. Further, he says, the government would suggest that—as with Nauta—the restriction could be limited to communications with these witnesses about the case.
Responding to these representations, Judge Goodman momentarily toys with the idea of requiring the government to make up a two-category list of witnesses: a category of witnesses with whom there should be no contact at all, and a category of witnesses with whom there should be no contact about the case. For example, he says, members of Trump’s protective detail would fall within the second category.
Blanche, however, remains unsatisfied with this proposed arrangement. He suggests that it would be “unfair” to people who rely on Trump for their livelihoods if the government were to place them on the “no contact” list. Moreover, he says, these restrictions on communications with witnesses are not necessary because “all of these witnesses” have their own counsel, which Blanche seems to consider sufficient to guard against any improper communications with Trump.
Harbach, whom I suspect is keen to let the court impose this restriction now that it has been proffered by someone other than him, jumps in. He wants to “reiterate,” he says, that the magistrate’s special conditions are “workable.”
Judge Goodman agrees. Discarding the idea of the two-tiered list of no-contact witnesses that he had considered moments ago, he decides on a simpler course of action: The government should produce of list of witnesses, but the “no contact” restriction will be limited to no communications “about the facts of the case other than through counsel.”
“So that will be a special condition,” he declares with an air of finality.
Now, after just over 30 minutes—and 27 hours of waiting in line—the Trump portion of this typically brief proceeding is almost done. Chris Kise, finally with something to do, rises from his seat next to Trump to retrieve the form that lists Trump’s conditions of release. The court falls silent as Trump and his attorneys review the document, Blanche speaking in Trump’s ear in hushed tones as he rifles through the papers.
“Anything further?” Judge Goodman asks after Trump’s counsel returns the form to the clerk.
“Nothing, your honor,” Blanche replies.
“Let’s turn now to Waltine Nauta,” Judge Goodman announces.
Now, on behalf of Nauta, Woodward rises to inform the judge that he cannot enter an appearance in the Southern District of florida without sponsorship from local counsel. For that reason, he asks the magistrate to delay Nauta’s arraignment–though he suggests that Judge Goodman proceed with the portion of the proceeding related to the question of Nauta’s release. The special counsel’s office, for its part, notes that it does not oppose Woodward’s request.
Granting Woodward’s request, Judge Goodman orders Nauta’s arraignment continued until June 27, 2023 at 9:45 a.m. He notes that the hearing will be before another magistrate judge, Chief Magistrate Judge Edwin G. Torres. And, acknowledging that Nauta lives out of state, he advises Woodward that Nauta does not have to appear in person if he signs a form entering his plea for submission at arraignment. However, he says, Woodward and local counsel filing a pro hac vice motion would have to appear in-person at the Miami courthouse.
Moving on to the conditions of Nauta’s release, Judge Goodman notes that the government’s position with respect to Nauta’s release and recommended conditions are exactly the same as what the government recommended as to Trump. With that in mind, Judge Goodman quickly surmises that the same conditions that bind Trump should apply to Nauta.
Then, as with Trump, the court offers Nauta’s counsel a form to sign to memorialize the conditions of release. The court again falls quiet for several minutes as Woodward confers with his client. Then the marshal takes the form, returning it to Judge Goodman on the bench. As he does so, Blanche leans over toward Trump, cupping his hand to Trump’s ear as he whispers something inaudible.
“Anything further?” Judge Goodman asks. The parties respond in the negative.
“We’ll be adjourned,” Judge Goodman responds. “Take care.”
Then we all rise, and Judge Goodman swoops from the room.
Trump, rising slowly to his feet, briefly looks back toward the members of the public and media assembled behind him. Across the room, Smith keeps his eyes trained on Trump.
They exit through separate doors.