Last year, Judge Aileen Cannon tried valiantly to derail the Justice Department’s investigation of Donald Trump’s retention of classified documents at his Florida country club. The unanimous conclusion among court watchers was that Judge Cannon, who was confirmed after Trump had already lost the 2020 election, put both thumbs and all eight fingers on the scale for the man who nominated her to the federal bench. She was only stopped by the intervention of the 11th Circuit, which reversed her in humiliating fashion.
And so liberals looked on in horror as Special Counsel Jack Smith’s 42-count indictment arising out of that same documents investigation landed on Judge Cannon’s docket in the Southern District of Florida. It seemed inevitable that the jurist would seek to undermine the prosecution of Trump and two of his employees, Walt Nauta and Carlos De Oliveira, for their scheme to keep the FBI from discovering and reclaiming documents belonging to the American people.
A series of little-noticed filings in past two weeks demonstrates that Judge Cannon has been working behind the scenes to do exactly that, providing a playbook for Trump’s legal team to accuse Smith’s office of misconduct and potentially paving the way to exclude critical evidence and witnesses in the case.
Cannon takes aim at Jack Smith
The issue broke through the surface on August 2 when the government filed a motion for a hearing on potential attorney conflicts, which is known in the 11th Circuit as Garcia hearing. The purpose of this hearing is for the court to determine if the alleged conflict is waivable (some are not), and if so, whether the client has knowingly and voluntarily waived it. This is primarily to protect the client’s interest, and secondarily to protect the court itself so that a judgment can’t be reversed on appeal based on a claim of ineffective assistance of counsel.
Here prosecutors allege that Walt Nauta’s lawyer, Stanley Woodward Jr., “has represented at least seven other individuals who have been questioned in connection with the investigation.” This is hardly surprising, since Trump’s Save America PAC pays a handful of lawyers, including Woodward and John Irving, to represent various MAGAworld figures. According to the most recent filings, the PAC dispensed $21 million in legal fees during the first half of 2023 alone.
Woodward’s former clients include Yuscil Taveras, the head of IT at Mar-a-Lago, who originally testified to the grand jury in DC that he knew nothing about efforts to delete security camera footage of the storage closet where Trump was hoarding boxes of government documents. In July, Taveras fired Woodward and got new counsel, after which he immediately recanted his prior testimony and implicated Trump, Nauta, and De Oliveira in the camera caper.
Judges have an affirmative obligation to ensure that parties appearing before them are aware of any potential conflicts their lawyers may have — that is the whole purpose of a Garcia hearing. And in their motion, prosecutors strongly hinted but did not explicitly state that Taveras only felt free to implicate Trump when he got a lawyer who wasn’t being paid by Trump’s Save America PAC, as Woodward is. But instead of scheduling the Garcia hearing, Judge Cannon ordered Nauta to respond to the Garcia motion by addressing “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 [indictments] in this district.”
In plain English, she suggested that Nauta should argue that the government was contravening her authority by using a grand jury in DC to investigate crimes which took place in Florida. She also refused to accept two pieces of sealed evidence submitted by prosecutors which had been visible to the judge and the parties but not the public.
Taking his cue from Judge Cannon, Woodward’s response on Nauta’s behalf took a wildly accusatory tone. It alleged that prosecutors committed “multiple improprieties including … convening a grand jury in a far-away district, ostensibly to obtain evidence with respect to an indictment that was previously returned in the [Southern District of Florida]” in an “attempt to diminish the Court’s authority over the proceedings in this case and to undermine attorney-client relationships without any basis.”
A lawyer’s duty to the client outlasts their attorney-client relationship, and so it’s axiomatic that a lawyer cannot cross-examine a former client whose interests are adverse to his current one. Nevertheless, Woodward insisted that no conflict existed, and even if the court did find such a conflict, the appropriate remedy was to bar Taveras from testifying as sanction for the government’s bad behavior. This would have the convenient effect of blocking the prosecution’s star witness from testifying at all.
Last week, prosecutors came out with a blistering response to Woodward’s claims. But for the purpose of understanding Judge Cannon’s exercise of profound bad faith, these are the two most important sentences in the document:
On June 27, 2023, consistent with its responsibility to promptly notify courts of potential conflicts, and given the prospective charges [Taveras] 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 [Cannon’s] Court on the same day, by sealed notice, of the filing in the District of Columbia.
It was fundamentally dishonest of Judge Cannon to imply that prosecutors did something underhanded here, when they told her exactly what they were doingtwo whole months ago. They were investigating Taveras’s perjurious testimony to the grand jury in DC. And the only appropriate venue to investigate that crime was in DC where it occurred, as Woodward and Cannon have both known all along.
Smith is ready for Cannon’s shenanigans
This week the government responded by explaining the backstory of how Taveras came to fire Woodward and change his story. Previously, this was all secret grand jury material, which allowed Judge Cannon and Woodward to publicly mischaracterize it to accuse the government of misconduct. But this week prosecutors revealed that, on June 20, 2023, they sent Taveras a letter informing him that he was the target of a perjury investigation arising from his false testimony to the grand jury in DC.
The letter “crystallized a conflict of interest arising from Mr. Woodward’s concurrent representation of [Taveras] and Nauta”:
Advising [Taveras] to correct his sworn testimony would result in testimony incriminating Mr. Woodward’s other client, Nauta; but permitting [Taveras’s] false testimony to stand uncorrected would leave [Taveras] exposed to criminal charges for perjury.
Faced with this glaring set of conflicts, Woodward responded that Taveras had told the truth, and, even if he had perjured himself, “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.”
This is, quite frankly, NUTS. If an attorney finds out that his client has lied before a tribunal, he has an ethical responsibility to correct the record. Advising his client to stick with the lie is simply not acceptable. And so the government moved for a conflicts hearing in DC and, as noted above, informed Judge Cannon contemporaneously.
Chief Judge James Boasberg, who leads the US District Court in DC and has been on the bench since Judge Cannon was an undergrad, was so alarmed that he appointed a federal public defender to assist Taveras. Approximately five minutes after Taveras got a lawyer who wasn’t being paid by Trump, he changed his story and incriminated Trump, Nauta, and De Oliveira.
Woodward responded to the government’s revelations by accusing prosecutors of quoting him out of context and leaking grand jury materials from DC. But Special Counsel Jack Smith saw Woodward and Judge Cannon coming a mile off.
He instantly informed Judge Cannon that Judge Boasberg had authorized the disclosure of sealed DC grand jury information for purposes of the Florida Garcia motion. The government agreed that it would initially present the grand jury information under seal, but might file it publicly “as the need arises.”
You can safely read “as the need arises” as lawspeak for “in case that lunatic Florida judge gets up to any more shenanigans.” Which she did!
The government accompanied this filing with two documents, probably the same ones Judge Cannon struck from the record a month ago. One of those was the motion in which Woodward accused prosecutors of cherrypicking to quote him out of context. More context did not make him look better. In fact, it makes his cries of government misconduct look both disingenuous and self-serving.
But the person who looks the worst here is Judge Cannon herself. Because it’s now been a full month, and she still hasn’t scheduled the Garcia hearing for Walt Nauta. Instead she gave Woodward until August 31 to respond to the government’s latest motion.
Critically, the importance of a Garcia hearing is to protect defendants and ensure that they receive unbiased representation. Even if the government turns up evidence of an attorney conflict through illegitimate means, that conflict still exists, and the court still has a duty to protect the defendant. But Woodward indignantly accuses the government of attempting to harm his client, even going so far as to demand that the main witness in this case be excluded as punishment.
Judge Cannon is not only receptive to this argument, she appears to be the one who thought of it in the first place. In her own motion, she ordered the defendants to weigh in on the propriety of using a DC grand jury to investigate crimes in Florida, even though she knew about the DC conflicts hearing back in June. She disappeared the supporting evidence from the docket when she struck the sealed exhibits, and then turned around and prodded Woodward to accuse prosecutors of impropriety. And she appears wholly unconcerned that a defendant in her courtroom may be receiving deficient representation, even as Judge Boasberg, with two decades on the bench, was so alarmed that he appointed alternative counsel.
Special Counsel Jack Smith has now called Judge Cannon’s bluff by making the grand jury documents public. She will almost certainly schedule the Garciahearing after Woodward files his reply. But she can’t un-tip her hand here — we already saw her try to kneecap prosecutors for doing their jobs. And there’s still the possibility that she’ll take Woodward up on his suggestion to exclude Taveras’s testimony entirely.
That would be completely crazy and would likely get reversed by the 11th Circuit. But considering what happened last year in Judge Cannon’s courtroom, it can’t be ruled out.
https://www.publicnotice.co/p/judge-aileen-cannon-trump-florida-documents-case
