DOJ Invites Aileen Cannon to Avoid Another Reversible Error

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

The term of that grand jury ended on August 17.

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

DOJ is trying to help her avoid a second reversal.

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

119 replies
  1. CPtight617 says:

    What are the chances that she plows ahead anyway bc she is that bad and biased, DOJ appeals and the 11th Circuit says “We’ve seen enough” and not only reverses her, but gives the case to someone with more experience, citing her 3 strikes?

    • Tech Support says:

      It’s not clear to me that there is such a thing as a “three strikes” rule regarding judicial performance. Web searches on appellate courts removing judges from cases seems to suggest that sort of thing is limited to the facts and circumstances surrounding a specificcase. Even with the special master review pertaining to events that have led up to the indictment, that was still a separate court proceeding.

      Also… even if three strikes is a thing… if the reversal was “strike one” then what is/was strike two?

      • CPtight617 says:

        I didn’t suggest it was court policy. I meant the term informally — thought that was pretty clear.

        The circuit apparently does have a strong history of allowing the chief judge to opt to pull a case from a judge if s/he believes justice is best served by doing so. Reasons include a judge’s incapacity or incompetence, the appearance of a conflict of interest or an actual conflict, among (presumably) others.

        Cannon’s two prior fuckups were on matters involving these same exact parties on the

    • Mikenmar says:

      If she does exclude Taveras’s testimony, it wouldn’t be an appealable order. The govt would have to petition for mandamus.

      But the Seventh Circuit in Messino actually granted mandamus in that case, which tells you just how out-of-bounds it was for the court to exclude the witness’s testimony.

    • paul lukasiak says:

      I think Smith is sitting on a mountain of DC based sealed indictments pertaining to this case — note that Olivera’s perjury to the DC grand jury is not mentioned, let alone charged, in the superseding indictment.

      And the moment that Cannon makes a significant reversible error, Smith will drop those indictments then move to have both cases consolidated in DC because

      1) its where the entire criminal enterprise originated.
      2) DC circuit judges, and the DC Court of Appeals, have far more experience dealing with classified materials cases than does Cannon and the 11th District Court

      In other words, Smith will try and finesse the Cannon problem, rather than attack it head on, and the 11th District would probably go along, rather than deal with their Cannon problem…

      • KittyRehn says:

        If that were the case, why file in Florida at all? I understand Smith’s decision to file in SDFL is a bit of a hot topic, but what point would there be to filing in Florida if the end goal was to get the case consolidated in DC? Obligatory IANAL, but that seems like it would not only be a waste of time, but introduce unnecessary risk and the potential for delay.

  2. Bad Boris says:

    I believe Cannon could care less as long as she provides the infinite delay Trump desires.

    Else we’re back to her being promoted beyond her ken.

    • BobBobCon says:

      Trump wants delay now, but he could easily flip 180 degrees and turn on her for delaying if it suits him. If he feels trapped in other cases, he may wish a plague on everyone’s house and not care what she did in the past if she’s useless to stop other problems.

      I hope she has good advice on the pitfalls of leaning too far his way, because there are a lot.

      • Shadowalker says:

        Canon is in a no win situation, if she delays the trial past the election and he loses then he will blame her for the loss because she didn’t dismiss the charges, and if he goes to trial before the election and doesn’t get a jury acquittal on all the charges and also loses the election, she gets the same blame.

        • earlofhuntingdon says:

          Neither Cannon nor anyone else should be surprised by that dynamic. It’s the position Trump eventually puts everyone in who supports him.

        • DaBunny says:

          If Trump blames her for his misfortune, they might turn on her. Or at least not rush as a bloc to her defense.

          [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. “DaBunny” is your second user name; you commented 15 minutes earlier as “DaBunny42.” Please give me a break and stick with the same username on every comment. Thanks. /~Rayne]

        • surfer2099 says:

          Still looking for the like button. If it were here, i’d be checking it now. Agree, when the 1st conviction comes in, everyone in the justice dept will be a Trump target.

        • SilverWolf501 says:

          I like the fact that this site has no “like button”, it avoids the ‘popularity contest’ that most sites engage one with.

  3. Rugger_9 says:

    We’ll find out just how in the tank Judge Cannon is for her apparent Svengali. SC Smith’s team is doing her a huge favor by pointing this out now, before they proceed to have the 11th Circuit and SCOTUS unload on her flouting of multiple precedents as well as common sense.

    Unfortunately, because she is a federal judge with a lifetime appointment for good behavior (as defined by Congress via impeachment and removal proceedings) it looks more like DoJ is going to try to reform her first to get some useful service eventually. Good luck with that.

    One of the things to remember between SC Smith and Willis is that it appears more likely that Defendant-1 gets his days in their respective courts before Judge Cannon can help him with all of the delays she seems willing to grant. If Defendant-1 gets convicted and sentenced, anything Judge Cannon can do would be moot IIRC.

    • Peterr says:

      Not moot at all.

      These are different crimes that are charged, completely separate from January 6 or the 2020 election. Cannon could drag these proceedings out, but that would have no impact on what’s going on in Atlanta, DC, or NY, and Trump would still have to answer for these charges in her court eventually.

      • earlofhuntingdon says:

        Plus, any delays in Florida free up Trump’s schedule to deal with those other cases. Not much room left between that rock and the hard place.

        • Rugger_9 says:

          I was thinking it’s hard to throw someone in federal prison that is already serving time there. That’s why I was thinking moot, contingent upon conviction and sentencing.

        • Ginevra diBenci says:

          My thoughts exactly. Meaning, I’m guessing, Judge Chutkan’s. And Jack Smith’s. Especially given that jury selection in another Willis RICO case has been going on now for…almost ever.

  4. Peterr says:

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

    DOJ is trying to help her avoid a second reversal.

    Read another way, DOJ is offering the 11th Circuit an early look at some of what would appear their appellate brief should Cannon take Woodward’s path, so as to help the 11th Circuit in crafting their second reversal in a more leisurely manner.

    • eyesoars says:

      Cynical? Yes, but likely as well.
      They’ve got what ought to be an “open and shut case”, as much as there are such things, and making their wants and expectations clear within the confines of the law is good strategy. And, hopefully, educational.

  5. BirdGardener says:

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

    These two sentences confused me.

    I kept looking for a “then” clause to follow “that if” in the first sentence—made more sense to my possibly-fatigue-befuddled brain when I ignored “that if she makes such a decision” entirely. Is it just me or did a clause from an earlier draft get left in?

    In the second sentence, I wasn’t sure what “it’s” refers to—DOJ’s warning, the DOJ’s reason for laying out how & why he testified, or maybe the testimony itself?

    The rest of the article was as clear and as fascinating to me as usual. Thanks!

    • Shadowalker says:

      The “it’s” refers to why the DC grand jury was involved in the investigation post indictment. This filing seems to be close to instructing a first year law student on how Federal grand juries work and not a Federal Judge.

      • bloopie2 says:

        Spot on. Maybe we should pitch in and get Judge Cannon a subscription to Practical Law (from Thomson Reuters), or something similar.

      • farmfresh says:

        I think DOJ also explicitly mentions the DC grand jury not to educate Cannon on how grand juries work but to preempt whatever arguments Woodward makes in his filings to Canon on the “impropriety”of using two grand juries. Remember that earlier this month she invited him to make these arguments; probably fishing for a path to dismissal.

        • jecojeco says:

          A flat out dismissal might be too brazen , even for Cannon but I’m sure she’s constantly searching for ways to exercise maximum control over the investigation and delay it, of course. Being overruled is acceptable if it creates delays.

          The revised testimony of employee #4 after shedding his trump provided atty is going to focus attention on the problems inherent in trump provided attys for dozens of co-conspirators. It’s a joke pretending this type of arrangement isn’t inherently flawed.

        • Howard Appel says:

          IMO, a reverse-able decision really won’t delay things. I am sure Mr. Smith and his team have the appellate briefs already drafted and I suspect that the 11th Circuit, just as they have already done in this matter, will expeditiously rule on any appeal. I also suspect that they would use that as a vehicle to assign to another judge, i.e., “this matter is remanded to the trial court, subject to this matter being immediately assigned to a new judge.’ Maybe Cannon wants to get rid of the case — easy way to do so. Stupid, but easy.

    • Alan Charbonneau says:

      That first sentence is poorly structured. Marcy is brilliant but she might occasionally benefit from an editor.

  6. WB_19AUG2013_1845h says:

    This is really interesting. Thanks for spotlighting it.

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  7. jdmckay8 says:

    In fact, he responded that he “welcome[d] the Court’s inquiry into [his] representation of” Trump Employee 4, Response at 1, In re Grand Jury Subpoena, No. 23-GJ-46 (D.D.C. June 30, 2023), but asserted that he had no “information to support the Government’s claim that [Trump Employee 4] has provided false testimony to the grand jury,”

    Easy to understand how Woodward could make such an oopsy-lack-of-attention-to-detail when he’s representing so many people with orders to protect the boss at all costs primero uno. Practicing law in court tough enough, must really suck to have additional burden of having to operate with covert and fundamentally dishonest practice. Hope the boss foots bill for their sleeping pills and blood pressure medication.

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

    Really appreciate your attention to detail. :)

  8. timbozone says:

    If Smith gets one more former client of Woodward to correct false statements…

    Attorney-client privilege can be waved by the client/former client whenever, correct?

        • JonathanW says:

          Sorry if this is a silly clarification, but in this particular case, is there any suspicion that the lawyer (Woodward) advised Trump Employee 4 to lie, and now that he has a new lawyer he can testify about that? Maybe I’m too naive, or I respect lawyers too much, but I never really thought a lawyer would ever give such advice.

          And if that’s the case, timbozone, earlofhuntingdon and bmaz, are you saying that all they need to do is to get Taveras to testify that he was given this advice?

          Or am I just getting this all confused and there’s some more obvious reason that A-C privilege needs to be waived? Wouldn’t Woodward be disbarred if he actually did that?

        • Engprof733 says:

          I think you are circling around what is known as the crime fraud exemption from attorney client privilege.

        • Ginevra diBenci says:

          No. Crime/fraud is notoriously rare because it’s notoriously hard to prove. Lawyers, especially of Woodward’s caliber and reputation, know how to keep their hands clean.

          Remember that our recent exception, John Eastman, had been gripped by rabid zealotry and blinded (seemingly) by the attention of a US president. Very few share his circumstances or personality flaws.

        • pseudonymous in nc says:

          Crime-fraud is how Evan Corcoran was compelled to testify to the DC grand jury. It might be rare but it’s already been proved once in this case. It’s hard to keep your hands clean if you’re working for the former guy and his stooges.

          Anyway, let’s assume that Taveras has already told investigators and perhaps the GJ why he lied first time around. Let’s assume that Woodward knows that the veil of A-C privilege has already been lifted to some degree. That’d go a long way towards explaining why he hit the panic button to get Taveras excluded as a witness.

        • earlofhuntingdon says:

          Woodward would be a remarkably bad lawyer – and a criminal – if he directly told Taveras to lie to the DC grand jury. It’s more likely he encouraged him not to remember, to narrow his comments, to be loyal, any number of euphemisms. The problem is getting beyond a he said-she said argument to proof beyond a reasonable doubt.

          That said, this aspect could become a big issue for Woodward. If he were to become a fact witness or defendant, he would be forced to recuse himself from all his representations in this matter. But it would be time consuming to get past privilege reviews, etc., in Cannon’s courtroom.

        • Operandi says:

          We already known at least one Trump lawyer has given such advice. Cassidy Hutchinson quite famously testified during the J6 Committee hearings that her Trump-provided lawyer, Passantino, pressured her to state she couldn’t recall events she could, in fact, recall. Even when she confronted him directly during a recess and said she felt she was lying to the committee, he did not desist. Like Taveras, her memory returned and her testimony became significantly more vivid once she procured independent counsel.

          Now, to be exactingly fair, Woodward is a distinct lawyer from Passantino. The former might not share the latter’s methods. We haven’t (yet) seen any direct evidence of how he might’ve instructed Taveras, or even how Taveras phrased his testimony. But notice how DoJ summarized Taveras’ testimony, bolded for emphasis.

          When Trump Employee 4 testified before the grand jury in the District of Columbia in March 2023, he repeatedly denied or claimed not to recall any contacts or conversations about the security footage at Mar-a-Lago.

          Any claim that Woodward suborned Taveras’ perjury would technically be conjecture given the current publicly known information (though, good chance Smith already has the full story from Taveras if there’s one and he’s willing to tell it), but the parallels between Hutchinson and Taveras seem unmistakable.

        • Yargelsnogger says:

          As a non-lawyer, the whole “paying for someone else’s lawyer”, when that person is a possible witness against you and co-conspirator sure smells like bribery and witness tampering to me. I mean, I know it is legal, but it stinks about as much as “prosecutorial immunity”. They sound more like shields that the legal profession has created for itself, behind which they get to hide all sorts of wrongdoing.

        • Shadowalker says:

          Woodward didn’t help with his tough it out advice.

          “ Namely, he can go to trial with the presumption of innocence and fight the charges as against him.”

          I would imagine he didn’t relish the idea of being tried in a DC court.

        • earlofhuntingdon says:

          If Woodward directly advised Taveras to lie to a grand jury, he committed a felony. He would also be disbarred. It’s unlikely Woodward did that; there are less risky euphemisms. (And see Marcy’s comment, below.)

          A-C privilege belongs to the client. There’s no “need” for it to be disclosed; it’s always the client’s choice whether to disclose it. He would do so to protect himself. Here, it would be because it’s useful to the prosecution and might secure him a better plea deal.

          As a witness, Taveras’s testimony would be subject to vigorous cross examination. To be useful, it would have to be solid, the underlying facts provable beyond a reasonable doubt, and be persuasive to the prosecution and jury.

        • Kent says:

          Marcy may know something about the phone and messaging searches by DOJ that reveal contrary evidence against the “I don’t know nothing” defenses of Trump’s employees.

          Being shown your own contemporaneous communications that contradict your grand jury testimony is a great way to “refresh” a witness’ memory.

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        • Howard Appel says:

          Next you are going to tell that there is gambling going on in Rick’s Cafe. Quelle surpise!

        • Troutwaxer says:

          Stop me if I’m being too cynical,* but it strikes me that the “I’m an officer of the court so don’t tell me anything you don’t want the judge to hear” speech can be phrased so many ways…

          * “That was a joke, son.”

  9. pseudonymous in nc says:

    DOJ seems less than impressed by Woodward’s willingness to let Taveras perjure himself on Nauta’s behalf, and by the entire PAC-funded multi-client arrangement. I liked the little aside on pp. 8-9:

    While it may be appropriate to conduct portions of the hearing ex parte
    —for example if the Court were to find it necessary to inquire into attorney-client
    communications between Mr. Woodward and Nauta…

    DOJ has already successfully invoked the crime-fraud exception to get Corcoran to testify. It will absolutely take the same route — and appeal it upwards — if it thinks Woodward and Nauta conspired to leave Taveras in the shit. This is not an empty threat and Woodward knows it.

    • jdmckay8 says:

      This is not an empty threat and Woodward knows it.

      I was thinking same thing, or at least if Woodward could face sanction or reprimand if caught in a lie on this one. Also seems to me after reading excerpts Marcy posted from Smith’s filing that Smith’s conclusion should be pretty easy one for Corcoran to arrive at w/out Smith’s filing.

      Marcy promised to let us know if/when it was time to “panic” wrt Corcoran going off the farm. What she said recently, saying Smith having ongoing GJ activities seemed “suspicious” (overlooking Smith had explained that in earlier filings) suggests to me she is fully capable of foolishness based on impulsive, ideologically constructed free associations.

      Got’a keep an eye on this one, me thinks.

      • pseudonymous in nc says:

        The whole “propriety of using an out-of-district grand jury” thing felt plucked out of the sky by Cannon — because it wasn’t directly connected to Woodward’s conflicts of interest — and an ungenerous observer might ask whether someone nudged her to raise the issue.

        • John Paul Jones says:

          Adam Unikowsky wrote a piece on just how deeply weird Cannon’s decision was. This is his concluding remark:

          “Again, right now, Judge Cannon is merely requesting briefing. No biggie. But well … she’s inviting briefing on a frivolous argument from not only Nauta but also Trump, who has already said he doesn’t care about this motion, while simultaneously striking the filing with the information necessary to decide the motion intelligently.

          I’m stoked for what comes next.”

          It was on his substack, but it was re-published by Lawfare:

          I think also Cannon didn’t pluck it totally out of thin air. Can’t recall exactly where, but I remember hearing that Woodward himself raised the issue (I think I saw it in a transcript?) and I guess Cannon decided to run with it.

          In any event the whole business gave Woodward excellent insight into how far Cannon would let him mess around.

        • earlofhuntingdon says:

          Yes, it looks like a distraction from Woodward’s unavoidable actual conflict of interest. The DoJ says it can’t find a precedent where the remedy for a lawyer’s conflict is to preclude witness testimony.

          DoJ deals nicely with the two other issues. One, the self-evidently false claim that conflicts can arise only between defendants, and not between a defendant and a witness. Two, that the DoJ allegedly improperly used a DC grand jury to effect proceedings before Cannon. Rather, it used a DC grand jury to investigate alleged crimes that took place in DC – via witness testimony to that very grand jury.

          Woodward was obviously grabbing at straws and they wilted.

        • 2Cats2Furious says:

          Not only was that specific request for additional briefing about the “legal propriety” of using 2 grand juries “plucked out of the sky,” but the additional comment in her order that such briefing wouldn’t impact any 12(b) [motions to dismiss] was weird and extraneous. Of course defendants can file 12(b) motions as allowed. The inclusion of this language seemed like Cannon was trying to steer defendants towards filing motions to dismiss based on improprieties in the grand jury process. It is decidedly NOT Cannon’s job to suggest possible defenses.

        • Ginevra diBenci says:

          Plucked also, possibly, from Fox News. One of their legal eagles brought it up on air the day before Cannon did.

        • CPtight617 says:

          Not a Fox “legal eagle” but James Trusty, an attorney who represented Trump on this case as recently as mid-June before withdrawing abruptly citing “irreconcilable differences.” He also represented Trump in his bid to sue CNN for defamation but also withdrew in June. Some posited Trusty pulled out of Mar-A-Lago suit over $ and power struggle with Boris Epshteyn.

        • Ginevra diBenci says:

          Thanks for the correction. I didn’t see the original, just heard a clip on MSNBC that didn’t identify the speaker. Couldn’t see him because I was doing yoga.

          I’m a little surprised Trusty would run that up the flagpole. Maybe he was hoping for/expecting exactly such an outcome.

    • pseudonymous in nc says:

      The other interesting part of that filing its its willingness to quote Woodward’s motions to the DC grand jury — which aren’t, I think, on the public docket. (At very least, they don’t make it to RECAP.) That feels like another shot across the bow.

    • Engprof733 says:

      Does it even matter though if woodward doesn’t have to raise the arguments because Eileen does it for him?

  10. my2cnz says:

    Oliveira’s Initial Speedy Trial Report: “Mr. De Oliveira has not filed any motions in this case. He does not concede that the interests of justice require a delay in his trial, and he asserts his right to a speedy trial within 70 days of his first appearance on July 31, 2023. By undersigned counsel’s calculations, that would be October 9, 2023.”
    Dated: August 22, 2023

      • Konny_2022 says:

        That’s really an interesting question. Obviously De Oliviera is insisting on his right to a speedy trial. That means, as I read the filing by his representation, that he doesn’t want to wait to the date Cannon has set for Trump and Nauta: May 20, 2024.

        Cannon had subjected De Oliveira to the schedule set for Trump and Nauta by paperless order of Aug. 21, 2023 (ESF 128, referring to her order of July 21, 2023, ESF 83). But De Oliveira’s Initial Speedy Trial Report, from which your quote is taken, has to say this about Cannon’s Aug. 21 order:

        However, the Court’s July 21, 2023, Order predated the superseding indictment in this case, which the Government filed on July 27, 2023 (ECF No. 85). Mr. De Oliveira initially appeared on July 31, 2023 (ECF No. 89), and he was arraigned on August 10, 2023 (ECF No. 109).

        It seems impossible to grant De Oliveira’s right to a speedy trial and follow the schedule set for his co-defendants at the same time.

        So the question is how this conflict will be solved.

  11. jdmckay8 says:

    A rare and funny quip in this saga, from Chuck Rosenburg this morning wrt the $200k bond for Trump and other defendants. (I don’t have a transcript: best part is in 1st minute).

    • matt fischer says:

      The real problem with that particular defendant was not that he was a risk of flight but that he was a risk of non-flight. That he just wouldn’t go away.

  12. hollywood says:

    So if Woodward can’t woodshed all the witnesses he has been “representing,” how’s that going to play?
    More popcorn please. And maybe a tequila shooter.

    • pseudonymous in nc says:

      Taveras already put a crack in the joint-defense omerta. Let’s assume that he’s told investigators (and possibly the GJ) why he lied first time round. Let’s assume that he’s formally waived A-C privilege on his comms with Woodward, which is the kind of thing one might do if one’s lawyer talked you to the very edge of a perjury indictment. DoJ now knows all kinds of things about the defense strategy that Woodward would prefer it didn’t know.

  13. Rapier says:

    If she’s a stiver, and at his point what conservative isn’t making bank or hoping to cash in, she has nothing to lose. It could be in a year or ten but displays of loyalty are tickets to possible future success.

  14. Ebenezer Scrooge says:

    I don’t know much about criminal procedure. Is an interlocutory appeal feasible, short of mandamus?

    • says:

      i think this may answer your Question (see link below). Depends on issue, and ‘finality’ of it, but easiest way to think of what’s appealable before final judgement in context of a criminal case (under Collateral Order Doctrine) is if a ruling made by judge during pretrial or trial irreparably impedes a recognized RIGHT held by (usually) the defendant. Potentially relevant here, for example, would be denial of motion to sever that would lead to one D being forced to essentially forfeit 5th amendment right to not incriminate self. I haven’t read the filings yet, though. This is just a hypothetical. ‘Sever’ motion in my hypo means one D asks to be tried seperately from Co-defendants, fyi.

  15. StevenL_29MAR2019_1137h says:

    From the Florida Rules of Professional Conduct for lawyers (

    “CONFLICT OF INTEREST; CURRENT CLIENTS (a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer must not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Informed Consent. Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; RRTFB June 1, 2023 (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.”

    Mr. Woodward appears to be begging for an ethics complaint.

    [Welcome back to emptywheel. THIRD REQUEST: Please choose and use a ** unique ** username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You’ve commented as “StevenL” in the past; “MoreThan8!” which you used on this comment is not unique enough (as if others haven’t tried similar/same half-assed names). Use some creativity and pick a memorable UNIQUE name. In the mean time your username has been edited to reflect your first username and date/time of first known comment. ~Rayne]

    • Half-Assed_Steven says:

      I hope this one passes muster, Rayne.

      [There may be more than one Steven/Stephen half-assed but you’re the only one willing to own it? Okay, it’s yours. /~Rayne]

  16. engprof733 says:

    I doubt I’m smart enough to be an AUSA…but there is a part of me that thinks the beauty of her feigning concern about the outside of district grand jury resulting in clear documentation in support of the original problem she ignored sort of feels like she walked into a trap. Whether or not she is in the tank for Trump (I’m on team ‘she’s MAGA but not actively collaborating with them’) this is just setting up to make her look impossibly stupid.

    She KNEW about a prior conflict hearing involving the same people BECAUSE the conflict went from theoretical to real, and did so outside of her jurisdiction in a jurisdiction of serious people. She then tried to (again) reach beyond her jurisdiction and bury it. She refused to let the government re-explain this to her under seal. When it is all revealed…she’s left holding the same bag – the same attorney having the same conflict of interest with the same client and the same witness that she ignored has already proven itself to be a problem somewhere else. Her demanding attempt to ignore a simple request and generate controversy ends up explicitly proving the governments original point. This is about as close to walking into a screen door as I can imagine for a professional. The more she tries the more it self-refutes.

    I’m curious to see if lawfare updates their article ( about this procedural oddities with these new facts but wow. I doubt she will back down, because she doesn’t seem to possess that level of a theory of mind or self preservation. But from what all the law talking people I learn from tell me – getting her removed requires her to not just be wrong, but be egregiously and loudly wrong and look stupid doing it. This is a pretty damning foundation for that argument to my non-lawyer brain – ‘we’re not arguing a motion, we’re literally telling you this already happened and that seems to be beyond your understanding.’

    • Just Some Guy says:

      Just going to note, once again, that Judge Cannon was an AUSA for 7 years before being appointed to the bench.

    • Purple Martin says:

      Yes, that’s what Marcy said in this post, quoting todays Special Counsel Reply:

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

      As you observe, CNN & MSNBC also read and reported on the SC Reply. Not as well as Marcy though.

      • Ed Seedhouse says:

        I missed that. Ain’t as sharp as I used to be. I even re-read the original before I posted, and I *still* missed it. Perils of being ancient of days, I guess.

  17. jdmckay8 says:

    We mentioned this upthread, but you spell it out in much more detail. Curious to see what the lawyers amongst us have to say about this.

    • jdmckay8 says:

      Arghhh… meant as reply to engprof733@August 22, 2023 at 9:00 pm. 3rd time I’ve done this in last week or so, never did if before. Is this entirely my doing, or is reply-location a little buggy currently?

      • David F. Snyder says:

        Could be your browser. Safari isn’t 100% html5 compliant, if I recall correctly and it doesn’t handle all JavaScript perfectly.

  18. paulka123 says:

    From the IANAL perspective. Woodward represents Taveras and is essentially getting paid by Trump (is Woodward Trump’s attorney too? Can’t remember).

    In March Taveras lies to GJ

    Now if I understand Taveras is just a working stiff at Mar-a-Lago, he doesn’t actually hang out with the big guys like Nauta does (sort of-being a valet for Trump-meaning he would have a personal relationship with Trump).

    Taveras is later informed he is the subject of the investigation, there is a conflict hearing and the DC judge dismisses Woodward and gives Taveras a public defender. After meeting with the PD, Taveras makes, what appears to be a bee line for the DoJ to correct his testimony

    It seems to me that the PD told Taveras that Woodward was not serving his interests and Taveras recognized the position that Woodward and Trump put him in. I mean that is an obvious conclusion to me.

    Question is, why is Taveras sticking with Woodward as council?

    • Shadowalker says:

      The judge didn’t dismiss Woodward. Taveras did in writing, after he proved he could not afford another, the judge assigned a public one.

  19. jdmckay8 says:

    Immediately after receiving new counsel, Trump Employee 4 retracted his prior false testimony and provided information that implicated Nauta, De Oliveira, and Trump in efforts to delete security camera footage, as set forth in the superseding indictment. [my emphasis]

    Seems to me this one could be very (more?) consequential in this thing. I’m sure you’ve written about it, don’t recall what you may have said. I cannot imagine this has not provided Nauta & De Olivera with very clarifying moments.

  20. pseudonymous in nc says:

    Taveras has surely told investigators _why_ he lied first time round. Has he told the grand jury why he lied? That might make things even more interesting.

    Woodward surely assumes that Taveras has told investigators why he lied. All of his filings should be read knowing he might be in the shit for suborning perjury.

    • David F. Snyder says:

      Just the thought that Woodward would be reporting anything he heard back to Trump might be enough to pressure Taveras to say what the bosses want to hear without any suborning on Woodward’s part. I think Woodward is smart enough to avoid directly suborn perjury, but the conflict of interest could be an indirect means of influencing testimony.

  21. Staid Winnow says:

    This *is* the strongest case against Trump, and it has the most adversarial judge and jury as far as the prosecution is concerned.

    It is not settled that the 11th will reverse. Nor is it assured that, if replaced, Cannon’s replacement would be any better.

    • Engprof733 says:

      I think the actual worry is the replacement would be better at doing the bad thing. Cannons problem to my eye is she’s bad at throwing the game. She’s Angel Hernandez not Tim Donaghy.

      • Ginevra diBenci says:

        I don’t see how they’re getting this one into the Fifth Circuit.

        But I love the Hernandez/Donaghy reference!

        • earlofhuntingdon says:

          Federal courts in Florida, Alabama, and Georgia are in the 11th Circuit Court of Appeals.

        • Ginevra diBenci says:

          That was my point, earl, but I was being snide and overlooked being clear. If Engprof’s hypothetical played out, I was surmising it would lead to reversal by the 11th, which is not nearly as radical as the 5th.

  22. Amicus12 says:

    I think it’s worth nothing what is not scheduled and how it potentially impacts Judge Cannon’s July 21 schedule.

    Judge Cannon ordered briefing on the claim of alleged impropriety concerning the D.C. grand jury, but there is no hearing or motion pending. This appears to be a sua sponte frolic and detour, at best.

    Importantly, she has not scheduled a hearing date on the CIPA protective order. Per her August 17 Order, whenever that hearing is held it will be sealed. (Based on what has been briefed, I suspect she did that because she intends to question DOJ for a detailed list of all the ways Mar-a-Lago does not lend itself to a SCIF. And then to get DOJ to acknowledge those shortcomings can be fixed.) This unscheduled hearing has the possibility of disrupting the entire schedule, including a possible interlocutory appeal to the 11th Circuit.

    Regardless, it appears that the September 7, 2023, date for the USG’s production of classified documents has gone out the window. Which would appear to adversely impact the remainder of the schedule.

    The requests for Garcia hearings for Nautine or De Olivera are still pending. De Olivera’s response is due September 1. The longer these hearings are delayed the more difficult it will be to implement replacement counsel without attendant delay for new counsel to get up to speed.

    And now De Olivera wants to go to trial in October. It’s not obvious to me that his trial can be severed from the other defendants. Others will understand the implications of this better than I do.

    It appears the case is already in disarray. As Trump desires.

  23. NickBarnes says:

    I’m curious about this part: “During these investigations, the Government gathered evidence that Trump employee Carlos De Oliveira tried to enlist the director of information technology for Mar-a-Lago (identified in the superseding indictment as Trump Employee 4) to delete Mar-a-Lago security footage after the grand jury in the District of Columbia had issued a subpoena for the footage.”
    Do we know what that evidence was? Since turning Taveras, they have his direct testimony, and also CCTV footage of De Oliveira and Taveras walking and talking. But what evidence did they have in March, when Taveras first testified before the DC grand jury? I guess texts and calls from Nauta’s phone (and De Oliveira’s? Did they have it at that time?) – see ¶80 of the superseding indictment. Possibly a statement from Employee 5 (¶81), or the other IT employee (¶83)?

    • sunflores says:

      Help me to understand are Woodward’s actions an example of incompetent, corrupt or good lawyering?

      INAL, but it seems if one client can testify against your second, (or third), client, isn’t the easier path, as a lawyer to only represent one client?

      • earlofhuntingdon says:

        Woodward has a better than average resume and very good practice experience, including three clerkships and ten years at mega-firm and lobbyist Akin, Gump. But he’s thrown himself lock, stock, and two smoking barrels at Trump and the plethora of defendants that float in his wake like Pig-Pen’s dust cloud. I would say his lawyering for them suggests all three categories glommed together.

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