Special counsel Jack Smith's team in a Tuesday court filing laid out a defense lawyer's potential conflicts of interest in response to Judge Aileen Cannon's inquiry in the Florida case against former President Donald Trump and two codefendants over his retention of national security documents and alleged efforts to prevent their retrieval.
Cannon earlier this month questioned Smith's use of a grand jury in Washington D.C. after prosecutors already charged Trump and his co-defendants in the Southern District of Florida.
The special counsel's team requested a hearing on whether defense attorney Stanley Woodward's slate of clientele in the case posed a conflict of interest. Prosecutors said in the Tuesday filing that Woodward is representing codefendant Walt Nauta, a personal aide of the former president, in the case and has previously represented Yuscil Taveras, who was listed as "Trump Employee 4" in the indictment and is now a government witness, we well as two other potential witnesses.
Though the government attempted to provide a sealed filing with the motion to outline the potential conflicts, Cannon — acting on her own — struck it down and demanded a reason for why the grand jury in Washington, D.C. was still sitting in the case, noted Lawfare senior editor Roger Parloff.
Woodward then accused the special counsel of attempting to "diminish the Court's authority over the proceedings" and "undermine attorney-client" relationships without any basis by using the D.C. grand jury to compile evidence for a case that has already received an indictment. The lawyer also asked to strike his former client Taveras' proposed incriminating testimony against his current client, Nauta, in order to maintain the proceedings' integrity and Nauta's right to choose his counsel.
... On Cannon’s cue, Woodward accused the special counsel of trying to “diminish [Cannon’s] authority” by abusively using DC grand jury to gather evidence for an already indicted case. ...
— Roger Parloff (@rparloff) August 23, 2023
/4 pic.twitter.com/AhiXxehGUg
Given no other choice but to detail Woodward's conflicts on the record because of Cannon's inquiry, the government provided the specifics in its Tuesday response, Parloff explained, calling the filing "devastating."
In March 2023, according to the filing, the special counsel called Taveras, whom Woodward represented at the time, to appear before the D.C. grand jury. Prior to that, the government had alerted Woodward to a potential conflict but the lawyer said he didn't know of any. Then, during the testimony, Taveras perjured himself, denying that he discussed destroying video surveillance footage with Carlos De Oliveira. The government also noted that a lawyer for Trump had referred Taveras to Woodward and that his fees were then being paid by Trump's Save America PAC.
... Govt notes in passing that Taveras had been referred to Woodward by a Trump lawyer and his fees were then being paid by Trump’s Save America PAC. ...
— Roger Parloff (@rparloff) August 23, 2023
/8 pic.twitter.com/hh6pQ4zjd7
On June 20, the government advised Taveras, through Woodward, that he was the target of a perjury investigation in D.C., the venue of the alleged incident. A Florida grand jury had handed down the first Trump indictment regarding his retention of classified documents earlier that month, and it did not name Taveras or 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," the special counsel wrote in the filing, explaining that having Taveras correct his testimony to avoid prosecution would then incriminate Woodward's other client, Nauta.
... Govt says the target letter “crystallized” Woodward’s conflict, because having Taveras correct his g.j. testimony, to avoid prosecution, would implicate Nauta, Woodward’s other client.
— Roger Parloff (@rparloff) August 23, 2023
/10 pic.twitter.com/PSQ5MW5ak8
Woodward, however, still declined to recognize any conflict in the case, insisting instead that Taveras could choose to go to trial and fight his charges, noting that he'd also told Taveras he could cooperate with the government, according to the filing.
On June 27, special counsel Jack Smith requested a conflicts hearing before Chief Judge James Boasberg in D.C., who supervises the D.C. grand jury. Smith had also advised Cannon of the requested proceedings in sealed filings that same day. Woodward did not object either.
On Jun 27 govt asked for a conflicts hearing before chief judge Boasberg in DC, who supervises the DC grand jury, where the perjury occurred. Govt advised Judge Cannon same day in sealed filings. Woodward did *not* object. ...
— Roger Parloff (@rparloff) August 23, 2023
/11 pic.twitter.com/XU50lMOFng
Judge Boasberg asked an independent counsel, D.C. Federal Public Defender attorney Shelli Peterson, to advise Taveras on the potential conflicts. The Trump employee then asked Peterson to represent him in the case and retracted his false testimony, resulting in the implication of Nauta, De Oliveira and Trump, prosecutors said.
Prosecutors also cited an array of binding federal appellate precedents that allowed grand juries to investigate "other persons" not named in an indictment or explore "additional charges" against the named defendants. It noted that it only found one precedent in which a district judge struck an incriminating testimony against a defendant as a way of protecting that defendant's right to choose his counsel; the judge's action in that case was overturned on appeal.
"Since the court asked, special counsel answered, and here are the devastating facts," Barb McQuade, a former U.S. attorney and University of Michigan law professor, wrote on X, formerly Twitter.
Excellent thread from @rparloff explaining special counsel’s filing in response to Judge Cannon’s improper inquiry about use of a DC grand jury. Since the court asked, special counsel answered, and here are the devastating facts. https://t.co/PjBF0XgT9y
— Barb McQuade (@BarbMcQuade) August 23, 2023
Legal experts called out Cannon over the ruling.
Smith's filing was "legally & factually strong of course— and remarkably respectful, which must have been a challenge cause Cannon was so completely off base. The brief could have started with 'Here, on earth, the law is....'" wrote former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller's team.
The Jack Smith filing yesterday in FLA was legally & factually strong of course-- and remarkably respectful, which must have been a challenge cause Cannon was so completely off base. The brief could have started with "Here, on earth, the law is...." https://t.co/d21GStvVZB
— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) August 23, 2023
"Prosecutors bent over backwards to treat Judge Cannon's inexplicable & wrongheaded ruling seriously & in detail," agreed former U.S. Attorney Joyce Vance. That's because they know where this is headed—their briefs will ultimately be read by a 3-judge 11th Circuit panel. They brought their A game & did it just right."
Prosecutors bent over backwards to treat Judge Cannon's inexplicable & wrongheaded ruling seriously & in detail. That's because they know where this is headed—their briefs will ultimately be read by a 3-judge 11th Circuit panel. They brought their A game & did it just right. https://t.co/23fd82wD6Y
— Joyce Alene (@JoyceWhiteVance) August 23, 2023
Vance warned that if Cannon refuses to hold a hearing to advise Trump's co-defendants of Woodward's conflict, "it would rival her earlier decisions for being so wrong legally, that there'd be serious consideration on appeal of her fitness to remain on the case."
4/As I noted Sunday, if Judge Cannon refuses to hold a hearing & advise Trump's 2 co-defendants in the MAL case of the conflict, it would rival her earlier decisions for being so wrong legally, that there'd be serious consideration on appeal of her fitness to remain on the case. pic.twitter.com/Srn5ubBl8X
— Joyce Alene (@JoyceWhiteVance) August 23, 2023
