Published by The Lawfare Institute
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Last Thursday afternoon, U.S. District Judge Aileen Cannon of the Southern District of Florida had scheduled two hearings in United States v. Trump—the case alleging that Donald Trump mishandled classified documents and obstructed justice—to apprise two co-defendants of potential conflicts their attorneys might be laboring under.
It had been clear from the outset that the issues surrounding co-defendant Waltine Nauta’s attorney, Stanley Woodward, Jr., were far thornier than those concerning co-defendant Carlos De Oliveira’s lawyer, John S. Irving. Still, few expected the afternoon to play out the way it did—with Nauta’s hearing being abruptly aborted after Assistant Special Counsel David Harbach raised weighty issues that hadn’t been laid out in the government’s briefs. Woodward protested that he had not had a chance to discuss the issues with Nauta, that the government’s position was wrong on the law, and that he could not properly advise his client until Judge Cannon ruled on whether she accepted the government’s theories.
Visibly and audibly irritated, Cannon curtly adjourned Nauta’s hearing, promising to issue a scheduling order calling for more briefing and another hearing. “I admonish the government for wasting the court’s time,” she said.
The hearings, which had been requested by the government, were what are known in the Eleventh Circuit, which includes Florida, as Garcia hearings. These are proceedings at which a judge engages in a lengthy dialogue with a defendant to make sure he or she understands his attorney’s potential or actual conflicts. The judge then obtains the defendant’s commitment to either waive those conflicts or seek new counsel. If the conflicts are too grave to waive, the judge may disqualify the attorney.
Generally, when the government perceives that a defendant’s attorney has potential conflicts, it seeks a Garcia hearing to make sure that any conviction obtained will not be subject to attack on appeal or in post-conviction habeas corpus proceedings on the basis that the conflicts deprived the defendant of the Sixth Amendment right to effective assistance of counsel.
The potential conflicts here, which will be explored in depth below, stem from the fact that each of Trump’s co-defendants’ attorneys had also represented witnesses whom the government says it may call at trial. In Woodward’s case, he still represents two of the witnesses in question. Also, though not mentioned at Thursday’s hearing, attorneys Irving and Woodward are both being paid by the Trump-aligned Save America PAC, according to the government and independent reporting. The government argued in its prehearing brief relating to Woodward that this factor—being represented by a third party aligned with the lead defendant—can “heighten” the dangers of other conflicts of interest an attorney may have.
The hearings were held at the Alto Lee Adams, Sr., U.S. Courthouse in Fort Pierce, Florida, a beach community that serves the northernmost division of the Southern District of Florida.
The courthouse is a white, four-story, concrete structure built around 2011 that—like many recent vintage federal courthouses—is designed to withstand a bombing attack. Nevertheless, it’s a handsome building. Once past the metal detectors, visitors pass into a large, airy, column-less atrium topped with steel gable trusses.
Courtroom 4008, Judge Cannon’s home courtroom on the fourth floor, is also handsome, if small. There are just two rows of pew-style benches for spectators, one of which is reserved for attorneys or parties to the case. The walls are paneled with rectangular blocks of louvered, blond wood, and the floors covered in royal blue carpeting. It has high ceilings and is bathed with natural light filtering through shaded windows on the right wall near the ceiling.
The defense counsel table is at the left, from the visitor’s perspective—the side furthest from the jury box. Gathered there are—from left to right, wrapping around the left and back edges of the table—Woodward; his local counsel, Sasha Dadan; their client, defendant Nauta; Todd Blanche, representing defendant Trump; Larry Donald (“Donnie”) Murrell, Jr., Irving’s co-counsel; defendant De Oliveira; and Irving. Although Judge Cannon scheduled De Oliveira’s hearing to go first, at 1 p.m., with Nauta’s starting at 3 p.m., all defendants and counsel (except Trump) have chosen to show up from the start.
The prosecution team, facing the bench in a line at the table to the right, includes Counselor to the Special Counsel Jay Bratt, on leave from the Justice Department’s national security division; and Assistant Special Counsels David Harbach, Michael Thakur, and John Pellettieri.
Cannon takes the bench punctually at around 1 p.m. She begins by reminding those assembled that there will be no use of electronic equipment or recording of any kind. (It would be hard for reporters to violate that instruction because, since July—a month after the Trump case was assigned to this division—anyone not serving as a lawyer in this case has been barred from bringing electronic devices of any kind into this courthouse.)
Cannon then addresses a question of acute concern to the reporters who, in most cases, traveled hundreds of miles to get here. Attorneys Woodward and Irving had originally asked, over government objection, that the entire hearing be held ex parte and under seal—meaning without even the prosecutors present. Though Cannon denied that proposal prior to the hearing, she left open the possibility that portions of the hearing might yet have to be conducted that way.
Luckily, Cannon announces that this will be a public hearing, and her intent is to keep it that way. If an attorney asks her to close the courtroom, she’ll give a lawyer present on behalf of the Press Coalition—a group of media organizations—an opportunity to be heard first.
She then explains what a Garcia hearing is. A 1975 ruling by the U.S. Court of Appeals for the Fifth Circuit teaches us, she says, that judges must conduct a “fulsome colloquy” to advise defendants of the potential dangers of potential conflicts of interest their attorneys have, and to ensure that any waivers of such conflicts are given knowingly, voluntarily, and intelligently.
(In its prehearing briefs, the government had asked Cannon to have an independent counsel present at the hearing, so the defendants could consult one if they wanted. Additionally, it asked that the witnesses represented by Woodward also be present, to be advised of his potential conflicts. She denied those requests “without prejudice,” meaning that she could theoretically revisit them if the hearing suggested that such measures were necessary.)
Cannon then begins the hearing for De Oliveira, who is and was, during the period of the superseding indictment, the property manager at Mar-a-Lago. She asks De Oliveira to pull his microphone nearer to himself, explaining that much of the hearing will be a dialogue “between me and you.” She then swears him in.
As we’ll see, a Garcia hearing has much the feel of a guilty plea proceeding. The judge is making sure the defendant is aware of the rights he is waiving. Many of the judge’s questions appear to be scripted, as they are at guilty pleas, to ensure that waivers are bulletproof against postconviction challenges.
“What is your name,” she begins.
“Carlos De Oliveira.”
She asks him his date of birth and then quickly amends her question to ask for the year only.
De Oliveira gives the month, day, and year anyway. The year is 1966.
“How far did you get in school?”
“I never finished. I left Portugal when I was 17 years old,” he says. “I started school when I was 12. I arrived in Massachusetts. I took a few night schools. Never finished.”
“Do you read and write English?”
“I read better than I write. I can write, but not good.”
“Do you fully understand everything so far?”
“If you want to speak to your attorney, don’t hesitate to let me know. Are you currently under the influence of drugs, medication, or alcohol?”
After a few more questions of this nature, Cannon turns to apprising De Oliveira of the nature of the conflicts, which were laid out largely in the government motion seeking this hearing.
She explains that we aren’t going to use in court the names of the three witnesses in question—the ones attorney Irving formerly represented and who the government says it now may call in the case against De Oliveira. One will be referred to here as Trump Employee 3—the term used for that person in the indictment—and the other two will be referred to as Witness 1 and Witness 2.
“Perhaps you know who they are,” Cannon notes. “I ask you not to use their real names.”
“I don’t know who those people are by names,” De Oliveira says.
Irving then leans over and has a whispering conversation with De Oliveira. But De Oliveira does not change his answer.
Next, Cannon advises De Oliveira that he has a constitutional right to effective assistance of counsel. That means he has both a right to be represented by an attorney who is free of conflicts, she says, and a right to choose the attorney he wants.
“The special counsel brought to my attention Mr. Irving’s former representation of three witnesses it may call at trial,” she continues. “Are you with me this far?”
“Yes, I understand.”
“I’m not required to accept any waiver you make. If I determine there’s a conflict so serious I may elect to disqualify your counsel. But that’s disfavored. You have a right to proceed to trial with a different lawyer. You’re not required to make a decision today. Just tell me. Also, you have time to hire another attorney to help you make this decision if you want.”
Cannon then summarizes what each of the witnesses Irving formerly represented might allegedly say at trial, according to the government’s motion for the Garcia hearing. Trump Employee 3, she explains, worked as a personal aide to former President Trump. This person has information about a June 24, 2022, phone conversation with Trump. After Trump had spoken with his lawyer about a grand jury subpoena seeking Mar-a-Lago security footage, Trump Employee 3 told Nauta that Trump wanted to speak with him. Nauta altered his travel plans and traveled to Mar-a-Lago. There, Nauta allegedly coordinated with De Oliveira to have Trump Employee 4 delete the footage. (Though Cannon doesn’t mention it, Trump Employee 4 was the information technology director at Mar-a-Lago, according to the indictment. Multiple media outlets have identified him as Yuscil Taveras.)
Next, Cannon turns to Witness 1. Witness 1 “served as head of maintenance at Mar-a-Lago before you took over in 2022,” Cannon explains. This person allegedly has information showing the falsity of De Oliveira’s statements to the government in an April 2023 interview. “You were allegedly confronted with footage of you,” Cannon continues. The footage allegedly shows De Oliveira photographing surveillance cameras in a tunnel near the Mar-a-Lago storage room, she says. “It’s alleged that you explained the footage by indicating you were looking for a shutoff valve [because a water pipe had ruptured] and documenting a broken door. The witness has information inconsistent with your explanation. The witness also has information about your loyalty to the president.” In addition, Cannon continues, the witness also has information about De Oliveira’s involvement in the replacement of a lock at Trump’s direction inside a closet at Trump’s Mar-a-Lago residence on June 2, 2022, the day De Oliveira and Nauta allegedly moved boxes.
Then Cannon discusses Witness 2. This witness worked as a receptionist for Trump before and after his presidency, Cannon says. Witness 2 has information about the movement of boxes from the White House to Mar-a-Lago. This witness also identified De Oliveira in security footage as moving boxes with Nauta on June 2, 2022, she recounts.
Now Cannon explains the crux of the potential conflict. These witnesses were formerly represented by Irving, she says. If the government calls any of these witnesses, she continues, Irving will be given an opportunity to do cross-examination—to ask questions. The government suggests a dynamic in which Irving may experience “divided loyalty,” Cannon continues. “On the one hand, Mr. Irving has a duty to zealously advocate on your behalf. But he has a duty to maintain the confidentiality of communications with former clients. If he acquired information [that way], it’s still privileged, and he can’t use it even if it would be in your best interests. Mr. Irving might take it easy on this witness—do less vigorous cross than he otherwise would’ve done. See how it could be problematic?”
“Yes, I understand,” says De Oliveira.
Now Cannon turns to a second issue: what will happen on appeal if De Oliveira is ultimately convicted. “Imagine this scenario,” she tells De Oliveira. “You waive the potential conflicts today and continue with Mr. Irving. If it turns out that Mr. Irving does possess [confidential] information [about a witness] and was unable to conduct thorough cross and you are found guilty, you’d not be able to say on appeal, ‘Wait a minute, I had an attorney with a conflict.’”
“I understand,” De Oliveira says.
Now Cannon invites the special counsel’s office to supplement or correct her summary.
Assistant Special Counsel David Harbach goes to the dais. After making a very minor factual correction in Cannon’s recitation—for which Cannon thanks him—he throws an unanticipated curveball.
He says that the impact of the conflict is not necessarily limited to Irving’s cross-examination of witnesses he represented. “In the government’s view,” he says, “Mr. Irving is faced with the same predicament when it comes time to make [final] arguments. A lawyer who suffers under a conflict is precluded by loyalty from arguing that a former client lacks credibility and from attacking a former client’s character. It flows from the duty of loyalty. It’s not specific to confidential information” that he may possess.
Cannon immediately turns brittle and sounds alarmed. “Did you make this argument in your papers?”
“Not in our papers,” Harbach admits. He says the arguments made in the papers were sufficient to show that a hearing was required. He’s now pointing out an additional issue. (It’s not a great answer.)
At first, it is not clear why Cannon seems so upset. Why doesn’t she just ask De Oliveira to waive this other potential conflict, which he seems certain to do? But it turns out that Cannon is on to something. While Harbach’s curveball won’t have any impact on De Oliveira’s hearing, it will, in about an hour and a half, completely derail Nauta’s.
Cannon also seems skeptical of whether the newly described conflict really exists.
“This is a more amorphous, more generalized, conflict writ-large,” she says. “I’m not still understanding fully what you mean. Independent of confidential information, Mr. Irving would have a stand-alone disability?”
“Well, it’s a false dichotomy,” parries Harbach. He suggests that the duty of confidentiality and duty of loyalty are inextricably intertwined.
With the issue unresolved, Cannon moves on, asking if Harbach has any additional comments.
Harbach adds one minor factual detail about Witness 1. Witness 1 would say that De Oliveira was actually present at the time the lock was changed.
Then Cannon asks Harbach if he agrees that the government is suggesting only that “potential conflicts” exist—not “actual conflicts.”
“I want to be careful not to get too wrapped around the axle about nomenclature,” Harbach responds. He says that court rulings are fuzzy in their use of those terms—“potential” and “actual.” It doesn’t really matter, he adds, for purposes of what the court is undertaking today in terms of advising De Oliveira.
Then Harbach makes one final point that actually favors Irving’s position, but which needs to be made for fairness’s sake. He notes that Irving has indicated that his co-counsel, Murrell, would do the cross-examination of these witnesses and that Irving has represented to the court that he has not shared client confidences with Murrell. (That could go a long way to solving any conflict issue—at least as it relates to cross-examination.)
Cannon then checks a few other boxes in terms of signing off on a waiver. “Am I correct that the government is not seeking to disqualify [Mr. Irving] at this time?” she asks.
“Correct,” says Harbach.
“And you’re not alleging inappropriate behavior by Mr. Irving?”
Would Murrell’s handling of the cross-examination “remove the actual conflict”? she asks.
“That’s ultimately up to the court,” Harbach responds. But then he re-raises the curveball he mentioned earlier, by reminding her that cross-examination isn’t the only issue. “I would add that in our view the ethical obligation would extend to not impugning former clients’ credibility in [closing arguments].”
Cannon now turns to De Oliveira.
“Were you able to fully understand what Mr. Harbach was saying?”
“To the best of my knowledge.”
“He says there’s not only a risk of pulling punches in cross, but a risk he can’t attack the credibility of witnesses.”
Now Cannon gives attorney Irving a chance to comment. Irving initially suggests that the curveball question—about attacking a former client’s credibility—is likely moot, because he doesn’t anticipate having to do that.
“This new aspect of it,” he says, “seems to be a solution in search of a problem. ... What [these witnesses] have to say isn’t particularly harmful to De Oliveira in the first place.” Irving suggests that, while he might argue that the witnesses are mistaken, or that the government misunderstands what these witnesses are saying, he doesn’t anticipate arguing that they’re lying.
By way of example, Irving says that one witness says De Oliveira was one of the people in the tunnel moving boxes. “We’ll stipulate to that,” Irving says. Then he reminds the court that his co-counsel, Murrell, will do the cross.
Cannon asks when Irving stopped representing these three witnesses. Irving says it was around the time he filed his opposition to the Garcia motion—Aug. 30.
Cannon now has Irving commit “definitively” that Murrell will be the one doing cross. Irving confirms.
Cannon turns back to De Oliveira.
“Are you comfortable with Mr. Murrell conducting cross?”
Now Irving returns to the curveball question. Even though he doesn’t anticipate having to impugn any of his former clients’ credibility, he wants to make clear that he’s not conceding any ethical prohibition against his doing so “if it came to that.” Still, he says, “I can’t see a world where I’m attacking their credibility or saying they’re lying.”
Cannon addresses De Oliveira again. She asks him, “in your own words,” to describe the conflicts everyone’s been discussing up till now.
“I discussed with my lawyers—” De Oliveira begins.
“Don’t tell me what you discussed with the attorneys,” Cannon interrupts. She repeats that she just wants him, in his own words, to describe the conflicts.
“I don’t have a problem with cross or not crossing him. ... I don’t know, ma’am. I don’t understand. If Mr. Murrell represents me, I’m fine. I don’t have a problem with that.”
“Are you comfortable even if he’d be a weak attorney in that sense?”
“Do you want a different attorney to help you make this decision?”
“You could. The court could appoint you one if you are eligible.”
Cannon asks if he’s had an opportunity to speak with any other attorney about these issues.
“I didn’t. I don’t want that.”
After Cannon secures from Irving his own opinion that De Oliveira has been adequately counseled on the conflict, Harbach rises to add one more point. Again, he adds something that actually helps Irving’s case, but which it’s important for the record to reflect accurately. Harbach says he’s spoken with the new lawyer now representing the three witnesses in question. That lawyer has informed the government that each of Irving’s former clients has waived whatever rights they have to assert conflicts because of Irving’s representation of De Oliveira.
At this point, Harbach also tells the judge that he now has some citations to back up his view that an attorney’s duty of loyalty would hamper him or her from impugning the credibility of a former client.
Cannon, being reminded of the curveball issue, becomes angry all over again.
“Why are you raising this argument for the first time now?” she asks. “You filed a voluminous brief. It’s odd to raise what appears to be a valid concern for the first time now. It presents some problems. it should be done in the procedurally proper way. It deprives the other side of an opportunity to respond.”
In any case, Harbach dictates for her the three citations, which include United States v. Yanotti, a 2004 case from the Southern District of New York; United States v. Spataro, an unpublished decision from the Eastern District of New York, citing Yannotti with approval (2005 WestLaw 3775954); and United States v. Rahman, a 1994 ruling by Judge (and later U.S. Attorney General) Michael Mukasey of the Southern District of New York (at page 277).
Cannon then resumes her dialogue with De Oliveira, listing the key rights he is about to waive. He says he understands.
“You can take more time.”
“I’m okay. I discussed it with the lawyers.”
“What would you like to do? Would you like to continue to move forward with Mr. Irving?”
Is anyone forcing him to make this decision? Coercing him? Pressuring him?
No. No. No.
“Do you wish to waive the right to conflict-free counsel and proceed?”
“Based on this colloquy, I’m going to find Mr. De Oliveira has made a knowing, intelligent, voluntary waiver of any potential or actual conflict.”
Cannon then calls for a recess before Nauta’s hearing begins. We’ll reconvene at 3 p.m., which is in about 40 minutes.
At this point, before I describe Nauta’s hearing, I’m going to interrupt the progression to inform the reader on my own of what’s known about the three potential government witnesses who are to be the subject of discussion starting at 3 p.m. All of them were or are represented by Nauta’s counsel, Woodward. Although Judge Cannon undoubtedly planned to explain these facts on the record, just as she did at De Oliveira’s hearing, Nauta’s hearing—as we’ll see—imploded before she could do so. But this information is necessary to understand why it imploded.
According to the indictment, Nauta has served Trump, both before and after the presidency, as a “valet,” “executive assistant,” “personal aide,” and “body man.” In its motion and supplemental motion for a Garcia hearing as to Nauta, the government indicated that Nauta’s main counsel, Woodward, has represented three witnesses that the government may call to testify against Nauta.
The first is Trump Employee 4 (reportedly Taveras). In March 2023, this witness, while represented by Woodward, allegedly testified falsely before the grand jury in Washington, D.C., that was then investigating Trump’s mishandling of classified documents. The government then told Trump Employee 4 that he would be indicted for perjury if he didn’t correct his testimony. In June, at a hearing that was the equivalent of a Garcia hearing, Chief Judge James Boasberg of the U.S. District Court for the District of Columbia appointed an independent attorney to discuss with Trump Employee 4 Woodward’s potential conflicts. On July 5, Trump Employee 4 chose to terminate Woodward’s engagement in favor of representation by the independent attorney. The government says that Trump Employee 4 will now testify about attempts by De Oliveira to persuade him, at Trump’s and Nauta’s behest, to delete security footage that had been subpoenaed by the grand jury, as laid out in paragraphs 74-87 and 91 of the superseding indictment.
Woodward also represented—and still represents—two other witnesses the government may call. They are referred to in the government’s Garcia motion (as to Woodward’s representation of Nauta) as Witness 1 and Witness 2, though they are different individuals from the “Witness 1 and Witness 2” referred to in De Oliveira’s hearing. According to that motion, Witness 1 worked at the Trump White House and then at his post-presidential office in Florida. Witness 2 worked for Trump’s reelection campaign and then, later, for his political action committee.
Cannon resumes punctually at 3 p.m. First, she wants clarity on which witnesses Woodward does and does not represent at this point. He confirms that he no longer represents Trump Employee 4 but does still represent Witnesses 1 and 2.
But then, with urgency in his voice, Woodward adds, “I want to flag a concern.” He then expresses vehement disagreement with the premises of Harbach’s curveball from the previous hearing: the notion, as Woodward puts it, that he “would be precluded from arguing in summation anything that would challenge the credibility of a former or even a current client.” He disagrees, he says, that the three cases cited by the government stand for that position.
It can’t be, he argues, that he’d be precluded from challenging the credibility of a witness if, “God forbid, he has a stroke. The government’s position would be we can’t question his credibility based on that medical condition?”
The government’s broad theory, if accepted, might act not just to curb his summation, Woodward adds, but also to bar his even asking for additional discovery from a witness. “This is not what the rules require,” he protests. “The continuing obligation of loyalty is limited to [protecting] confidences. I don’t see how Mr. Nauta can make a knowing and voluntary waiver [about this] because I haven’t discussed it with him. It was never raised before. I’d be precluded from challenging the credibility of present or current clients that has nothing to do with confidences? This issue needs to be resolved.”
Cannon asks Woodward if he’s aware of any Eleventh Circuit authority on this question.
“They cite twenty-year-old cases from districts in faraway New York,” Woodward responds.
Cannon turns to Harbach. She’s had a chance to look at his cases over the break. She says she’s not sure they support the broad position he’s taking.
“Our view,” Harbach responds, “is that this is not some arcane proposition that came out of thin air.” There are twin duties, he says: The first is confidentiality, and the second is loyalty.
Cannon is dubious. “A free-standing limitation on the ability to question the credibility of your former client? Do you have any Eleventh Circuit authority?”
“As phrased, no,” Harbach concedes.
In Rahman, Cannon says, one of the attorneys asked to be relieved—a circumstance we don’t have here.
Harbach interjects that he’s not saying the facts of those cases are identical. “We’re offering them for the unremarkable proposition—"
Cannon interrupts sharply. “It’s striking you wouldn’t make this obvious point [in your briefs]. It makes the waiver discussion broader than contemplated.” The fact the prosecutors didn’t raise this issue in their briefs “makes it difficult to decide on the fly,” she says.
Now Harbach goes on the offensive. He stresses how much more serious Woodward’s conflicts are than Irving’s conflicts. “Unlike Mr. Irving, we need not discuss this theoretically. We can talk very specifically. [Woodward] cannot cross his former client.”
This, too, surprises Cannon. “I did not understand your papers to ask to preclude cross.”
“Let me clarify that,” Harbach responds. He explains that, with De Oliveira, we were talking about potential conflicts stemming from the fact that the government might call certain witnesses against him. But now he says: “The government will be calling Trump Employee 4. There’s no question about that. I would think that would have been clear from the indictment” (emphasis added).
Then Harbach emphasizes a second circumstance contrasting with Irving’s situation. “Trump Employee 4 has not waived his client confidences with Mr. Woodward.” (Irving’s former clients, through their new attorney, have waived any such conflicts.)
Harbach resumes: “Those are two very important distinctions relating not only to what [Woodward] should be permitted to do, but what current clients should be advised. Without question, Mr. Woodward should be foreclosed from cross examining Trump Employee 4.”
This irritates Cannon anew. “Prohibition is a new request,” she says. “Where in your papers do you say that?”
“Our position is Mr. Nauta should be so advised. ... The best way to advise is that there’s a possibility that the court could conclude that Woodward cannot cross Trump Employee 4. It’s possible the court might preclude him from arguing that he was not credible.”
Harbach is not done highlighting the seriousness of Woodward’s alleged conflicts.
“There’s one more thing that makes this unusual,” he says. “Trump Employee 4 was represented by Woodward when he testified one way [before the grand jury]. Later, after he ceases to be represented by Woodward, he changed his testimony. My point is, when Trump Employee 4 takes the stand, not only is it foreseeable, it’s inevitable that he will be—and should be—crossed by Nauta’s lawyer about his changed testimony. As concerns the court’s decision about how to advise Nauta, it’s foreseeable that the fact of Woodward’s prior representation of Trump Employee 4 could well be before the jury in answers to the questions the witness may have occasion to make either on cross or reexamination.”
Harbach is saying that if Woodward continues to represent Nauta, it’s possible the jury may learn distracting issues that no one wants them to be speculating about. If the jury finds out, for instance, that Woodward once represented both Trump Employee 4 and Nauta, it may start wondering why that was. It might also wonder why Woodward no longer represents Trump Employee 4. It could even start speculating about how it came to pass that Trump Employee 4 gave allegedly false testimony before a grand jury while represented by Woodward. Those issues are extraneous to the case.
Cannon is now openly hostile to Harbach. She is angry that this argument—“this new flavor you’re spinning now,” she calls it—is being spelled out for the first time, and she’s skeptical of its legal basis.
Nevertheless, she moves on, asking Harbach to discuss Witnesses 1 and 2.
“Witness 2 we no longer have the intention to call,” Harbach says, “so that witness is off the table.” (This is a new development since the briefing.)
“Witness 1,” Harbach continues, “is a current client of Mr. Woodward, unlike the former client situation we had with Mr. Irving.”
Cannon asks if Harbach is saying that, for that reason alone, Woodward should be prohibited from challenging Witness 1’s credibility. “There’s no authority from the Eleventh Circuit,” she protests.
“Not as phrased,” Harbach replies.
Cannon remains dubious. Unless there’s some evidence that Woodward is compromising a witness’s confidential communications, she doubts there’s an “amorphous” principle that renders Woodward “intrinsically unable to attack [a client’s] credibility.”
Harbach says the ethical problem with attorneys cross-examining clients follows from both duties—the duty of confidentiality and the duty of loyalty.
Cannon now observes—perhaps to herself—the immediate problem facing her: “There was no objection from Mr. Irving [to Harbach’s claim that Irving could not impugn his former clients’ credibility in summation], but the circumstances are not the same with Mr. Woodward.”
“Agreed,” Harbach says. “The circumstances are vastly different. It’s unnecessary—borderline silly—to entertain the possibility that Mr. Woodward is not in possession of valuable client confidences that would be useful to cross examine. He has to be privy to client confidences that would inform his cross at trial. We think ... it’s crystal clear that Nauta should be advised to be aware of the probability, or likelihood, that his lawyer would not be able to cross-examine Trump Employee 4 at trial. ... We don’t understand how Mr. Woodward could think he could under these circumstances. We’re at a loss.”
Woodward heads to the dais to defend himself. “I don’t know why they have any opinion about my representation of Trump Employee 4 at all. We’re filling the sky with hypos. Maybe the answer is, I didn’t talk to him before he went to the grand jury. We don’t [even] know [if] he’ll testify. The court could preclude his testimony. Or he could become unavailable to testify.” (This last possibility confuses and even shocks me. Is Woodward suggesting that there’s no conflict because Trump Employee 4 might die or become incapacitated?)
But assuming he testifies, Cannon says to Woodward, that could present a conflict. Would it prohibit you from arguing about his credibility?
“We’re not prepared to answer,” Woodward responds. “The first time this was raised was at colloquy with Mr. De Oliveira. I’m not prepared to advise [Nauta]. At trial, he doesn’t know what role his principal choice of counsel will play. Would I be precluded from filing a motion to strike [the witness’s testimony]? We dispute that duty exists. ... They’re objecting that they’re going to seek a bar on my crossing Trump Employee 4. That’s not the way they framed it in their papers. I’m shocked they’d do it.”
At this point, Cannon lashes out again at the government’s “last minute introduction of issues” that weren’t briefed. “Regrettably, I will have to postpone this. It may require briefing. I admonish the government for wasting the court’s time. I’m disappointed in that. The court is recessed.”
With some breaking news to report, the journalists rapidly file out and begin fast-walking down four flights, through the atrium, and out the doors. Then, like ink-stained wretches of yesteryear sprinting for pay phones, they race to wherever they stashed their electronic devices.
Editor’s Note: All quotations in this article are from the author’s notes, not a transcript.