The Secrets within Donald Trump’s Stolen Secrets Docket

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

It revealed:

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

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

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

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

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

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

There was one before DOJ’s notice.

And one after.

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

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

Judge Cannon ordered those to be stricken.

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

31 replies
  1. scroogemcduck says:

    On a scale of 1 (Bill Barr) to 10 (Rudy Giuliani), where would you score Stan Woodward’s likelihood of facing federal indictment before these cases reach a conclusion?

  2. Twoflower says:

    I found it difficult to understand the last sentence. I think you mean “in this filing” instead of just “this filing”. In the last part, I guess you mean it would be damning for the defendants if there were less secrecy, because it would be clearer what is going on in the various proceedings (like Taveras switching his testimony), and none of it is good for them.
    Possibly this is obvious to other readers…

  3. Rugger_9 says:

    The idea that only one GJ can exist for a given defendant that Judge Cannon is pushing here is quite novel, and FWIW how would she know better than Judge Boasberg about grand juries? Tevares lied in DC and so that’s the proper venue for that criminal act, and that’s all SC Smith needs. It would appear to me that Cannon is trying to grab everything into her courtroom (typical GOP judge overreach, see the 5th circuit) in a catch and kill exercise more normally done by tabloid newspapers.

  4. Former AFPD says:

    The district court overseeing the DC grand jury appointed an independent attorney to advise Mr. Taveras about potential conflicts of interest posed by his shared representation by Attorney Woodward. Not surprisingly, as soon as Mr. Taveras received such independent advice, the was an apparent change in his testimony. By ordering the special counsel to defend having used the DC grand jury, Judge Cannon has permitted the special counsel to prove that a witness represented by a conflicted attorney might very well need the advice of an independent lawyer. The special counsel has proven exactly why a conflict hearing is necessary. I imagine the 11th Circuit has taken notice of this turn of events. This is why conflicts are so pernicious.

  5. Tech Support says:

    Somebody tipped Judge Cannon off about EW. She’s mainly trying to keep Marcy in the dark.

    (Only half-joking.)

  6. USMA1986 says:

    This is what I struggle with. And I’m not joking when I ask, is she not that sharp or does she actually have her finger on the scale to some degree? The answer can be both, of course.

    Bmaz and others point out her schooling and resume. And I agree. Not a dummy. Yet with this Woodward situation, she might set herself up to get her ass handed to her in appeal yet again.

    I’m left with this thought (and as always – I’m just a layperson who doesn’t know how these things work):

    It must be challenging for a relatively new judge to match wits with the combined resources and intellectual firepower of the DOJ. If I were her, I’d definitely seek out counsel from more experienced, like-minded colleagues. Of course, maybe those colleagues are giving her poor advice. But I wouldn’t think so. Maybe she is trying to go it alone and isn’t seeking advice. That seems like a…not sharp thing to do.

    • commonphoole says:

      As is being disclosed daily Federalist Society judges have been chosen and may be compromised by the type of support they have received. We should look for “Kompromat” in her background. Sadly judicial screening relies mainly on the statements of the person being screened.

      [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. “commonphoole” is your second username; you commented last as “steve said so.” Thanks. /~Rayne]

  7. earlofhuntingdon says:

    Cannon is not a wall flower; she’s an experienced former federal prosecutor with excellent credentials and a solid network. Nor do I think of her as an ordinary newbie federal judge, whose primary interest is learning more about how to be a better judge. Nor do I see her as particularly concerned about being reversed again by the 11th Cir. They can overrule her, but can’t remove her from office.

    I think she’s more concerned about her standing with the FedSoc’s newly enriched leadership. She’s been a committed member since 2004. She owes her federal judgeship to them. We’re in the run-up to another presidential election. Winning it would be exceedingly beneficial for the FedSoc, the GOP, and Trump. He would avoid prison or make money from the rubes via four more years of whining victimhood. Were she to seek out anyone’s advice, it would be from FedSoc’s leadership, not from a neutral more experienced judge.

    • Lisboeta says:

      I am sure Cannon is seeking judicial advice in making her rulings. However Cannon is relatively inexperienced; she owes her elevation to the endorsement of the Federalist Society. And that is where her allegiance lies.

    • timbozone says:

      The beauty of lifetime appointments to Federal judgeships is that you don’t have to be beholden to any of your old pals once you’re on the bench. And sometimes that happens. It is to be hoped that Cannon turns into an independent minded judge interested in upholding the Constitution…rather than trying to suck up to folks who are sedition-curious; where do her ambitions lie?

  8. pseudonymous in nc says:

    My big takeaway from that filing was the thinly-veiled contempt DoJ has for Woodward and the entire PAC-funded joint defense arrangement. Of course there’s strategic value in blowing holes in that omertá by outlining the conflicts and providing access to public defenders, but I also detect a kind of moral objection to the entire thing — that it turns people who have done nothing wrong into criminals.

    Quoting Woodward from the GJ docket was a shot across the bow to both Woodward and Cannon.

  9. says:

    Let’s not lose sight of the fact that, in denying or delaying a Garcia hearing, there is a co-defendant who has a right, a CONSTITUTIONAL right — to effective, and NOT CONFLICTED — assistance of counsel, of HIS choosing. But DOJ cannot pull him aside and secretly inform him of this right (yet, as Marcy aptly notes, DOJ indeed has an interest in protecting the co-defendant’s right in order to protect its case, should it win conviction against him, from being overturned on appeal).

    I’m not the sharpest tool in the shed when it comes to issue spotting, and in ranking issues in order of importance, but I do sleep every night and reflect on things in the interim. How in the world did a defendant’s right to counsel get subjugated to a court’s ‘right’ to claim, inappropriately, it appears, jurisdiction over a matter? . . . and persist in this state for at least 2 weeks? Did the court READ the sealed filings she struck from her docket?

    There are detrimental consequences to delaying a defendant’s right to counsel for him and for the administration of justice in this case. I really hope there are nuances that I’m just not picking up on, and that things are being addressed, but are just not obvious to me at this point. Because, if indeed it is the Court that is the party denying, or even delaying for a few weeks, the defendant’s right to effective assistance of counsel, I find this deeply unsettling!

    While I’m grateful this part of the case is out in the open, I really do hope the defendant’s constitutional rights are not being sacrificed, so far at least, as it might appear, in this secretive case on secrets. The Court has a roadmap — its own ‘assistance of counsel’ in a way — CJ Boasberg’s handling of Employee 4’s matter in DC. Let’s pray she has the humility to follow it.

    … and now I’m sitting down with Lexis to confirm improper denial or unwarranted delay of a Garcia hearing is grounds for an interlocutory appeal….after I read all the filings of course, and perhaps learn where my reasoning or inferences have all been wrong.

    …as well to take a pregnant pause to ponder if my post should have used the term ‘affective’ instead of ‘effective.’

    • emptywheel says:

      Remember that DOJ tried to get Nauta to flip back in November, but Woodward refused, claiming Jay Bratt was being abusive.

      There’s some backstory here, is what I’m saying.

  10. charles lamb says:

    Practice varies, but I find it amazing Cannon is not pushing Woodward about the joint representation. I had an insurance case where the insurance company accused a husband and wife of fraud (there was none and prosecution was eventually dropped) and the first thing the judge did was to insist on separate counsel for the two defendants, just in case one was telling the other a fib. In civil litigation, the concern is less, but lawyers typically are very careful about getting written waivers of conflict, outlining not only the basis for the conflict but also how things get unwound in case the conflict reaches a point where one client terminates the representation. On top of that, the first thing any lawyer does before a client gives testimony is to walk through the problems that lying can lead to. The most obvious one is that you never know what the other side (grand jury, whatever) knows, and lying can put you in a very awkward spot. I guess some of Trump’s help is pretty loyal, but if Woodward and others did a proper job up front it is likely more of them would have been truthful from the start, thereby saving themselves criminal exposure.

    • paulka123 says:

      For me the conflict and problems are so blatantly obvious, I have no clue as to why Taveras is using Woodward at all. I mean when he got independent council in DC he ran to the DoJ to revise his testimony. How on earth could anyone think that Woodward is serving his interest. He is literally nobody. Any attorney worth his salt would advise him to go and tell the DoJ everything they know (on the condition of no charges). Add a mea culpa over the past incorrect testimony. He has to realize this isn’t about him, right? He knows Woodward gave him bad advice previously, he knows Woodward is being paid by the true target.

      Some people seem to lack a self-preservation gene it would appear.

      • misnomer bjet says:

        Not for nothing there’s a word for masochism and a term for death wish. Much is made of Trump’s more sadistic side, but I think his own masochism is one of the most under-appreciated aspects of his character; not something an observant con artist, prosecutor, or foreign influence operator would miss, though.

  11. Konny_2022 says:

    There is another conflict on Cannon’s desk, this time caused by different representation. (All docket numbers from .)

    ESF No. 128:

    PAPERLESS ORDER: Defendant De Oliveira is hereby subject to the deadlines, instructions, and findings contained in the Court’s Scheduling Order 83 issued on July 21, 2023. Signed by Judge Aileen M. Cannon on 8/21/2023. (kts) (Entered: 08/21/2023)

    From ESF No. 130, Third Speedy Trial Report by USA as to Donald J. Trump, Waltine Nauta, Carlos De Oliveira (Bratt, Jay) (Entered: 08/22/2023):

    In its July 21 Order Granting in Part Government’s Motion to Continue Trial and Resetting
    Deadlines (ECF No. 83), the Court excluded all of the time between the date of that Order and the
    trial date of May 20, 2024, pursuant to 18 U.S.C. § 3161(h)(7)(A). By Order dated August 21,
    2023 (ECF No. 128), the Court extended its earlier Order to Defendant De Oliveira. Thus, all time
    under the Speedy Trial Act is now tolled through May 20, 2024.

    Prior to this quote, there is footnote 1:

    Counsel for Defendants Trump and Nauta have reviewed this filing and have authorized the
    Government to represent that they concur with the Speedy Trial Act calculations set forth herein.
    Counsel for Defendant De Oliveira will be filing a separate Speedy Trial Report.

    ESF No. 132 is this separate and at the same time initial Speedy Trial Report “by Carlos De Oliveira (Murrell, Larry) (Entered: 08/22/2023),” stating:

    Mr. De Oliveira agrees that in its July 21, 2023, Order Granting in Part Government’s Motion to Continue Trial and Resetting Deadlines (ECF No. 83), the Court excluded all of the time between the date of that Order and the trial date of May 20, 2024, pursuant to 18 U.S.C. § 3161(h)(7)(A); and that by Order dated August 21, 2023 (ECF No. 128), the Court extended its earlier Order to Defendant De Oliveira.

    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).

    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. (my emphasis)

    Credit to my2cnz who had hinted at De Oliveira’s filing as soon as it was available, in a different thread (, but no substantive discussion followed. That’s why I bring it up here again. If there has been any discussion how to preserve De Oliveira’s right to a speedy trial elsewhere, I would be grateful for a link. Because October 9, 2023, is much, much sooner than May 20, 2024, obviously.

    • John Paul Jones says:

      You seem better versed than I in the minutiae of court procedures, but wouldn’t an ask from De Oliveira’s counsel, re: get me into court pronto, require that his trial be servered from the other two defendants? Absent that, he can ask what he wants, but in the end, it’s not up to him.

      • says:

        Don’t know S.Fla rules, but I too was wondering if Cannon would treat his filing as Motion to Sever, which seemed like an obvious ask to me (based on the reporting, not yet read filing). Been a while since I looked at case law on this, but judges do themselves and defendant’s no favor if they fail to recognize when a defendant filing is essentially a de facto Motion to Sever, or when severance must occur to serve the interests of justice.

        Defense lawyers should make their requests (motions) clear, but this case is so wierd. Don’t want to piss off Mr. Moneybucks, who still employs your client and who also has say-so over whether your invoices are paid. Asking to sever might piss Trump off, so a subtle filing about speedy trial interests that differ (only slightly ??? ) from Trump’s might be a “gentle” way to do this.

        I agree with Marcy that the PAC-as-payor issue is ripe for raising on Jack Smith’s part.

        • Konny_2022 says:

          I have no idea how this will be handled, but also see only the two options laid out by John Paul Jones.

          The most recent filing available on Courtlistener is a “Notice of Compliance” (ESF No. 133) by De Oliveira’s counsel that Irving’s background investigation has been completed.

          Maybe we’ll learn more about it once the “sealed hearing — secret time, secret place —” (Marcy, above) has taken place.

  12. Konny_2022 says:

    Continuation: Woodward complains that “the Special Counsel selectively quotes defense counsel’s submission
    in deliberate contravention of a sealing order issued by the United States District Court for the District of Columbia.” And alleges: “To be sure, the Special Counsel did not, and still has not, alleged any actual conflict in defense counsel’s representation of Mr. Nauta.”

    Now Woodward has filed a motion requesting “one week to submit a sur-reply,” submitted Friday, August 25, 2023. He

    respectfully requests this Court grant him leave to file his sur-reply on or before August 30, 2023, which will allow Defendant to respond to matters raised for the first time in the government’s August 22, 2023 filing.

    More from this motion:

    Defense counsel does not make this request for time lightly – during this period media outlets will undoubtedly continue to draw improper and inaccurate inferences from the Special Counsel’s selective citation to the record that malign both defense counsel and – more importantly – Trump Employee 4, who has done nothing to warrant the national spotlight that is now needlessly thrust upon them.

    The docket entry (ESF 134) says “Responses due by 9/8/2023.” I assume the sealed hearing will not take place prior to that date.

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