NRPLUS MEMBER ARTICLE L ast week, Biden Justice Department special counsel Jack Smith asked Judge Aileen Cannon, who is presiding over the Mar-a-Lago documents case, for a hearing to explore potential conflicts of interest that, according to prosecutors, may require the disqualification of the lawyer for Waltine Nauta, a co-defendant of former president Donald Trump.

The lawyer at issue is Stanley Woodward Jr. As the New York Times reported after Smith filed his motion, Woodward is a lawyer well-known in Washington, D.C., who represents many Trump allies and associates. It is always messy when multiple subjects of the same or related criminal investigations retain the same lawyer.

Professional-ethics law instructs that a lawyer’s duty of fealty to clients continues even after the matter for which the lawyer was retained has concluded. That duty of fealty includes keeping the former client’s communications confidential and avoiding taking positions antagonistic to the client in connection with the matter as to which the lawyer was retained. Naturally, then, if charges are eventually filed, the lawyer could find himself in the position of representing one client, a defendant, whose defense requires the cross-examination of another client, who has become a government witness. The just-discussed ethical principles prohibit the lawyer from cross-examining a client (current or former).

Many potential conflicts of interest can be waived, but a waiver must be knowing and intelligent to pass constitutional muster. A defendant may very well want to keep the lawyer he has retained, but it would be irrational to waive a conflict if doing so would deprive the defense of the ability to confront witnesses — especially critical ones. Even if a defendant claimed to be willing to waive, a good judge would not permit it in those circumstances.

There are potential fixes short of disqualification, but I’ve always thought them unrealistic and unwieldy — e.g., an unconflicted lawyer can be brought in as co-counsel to handle the cross-examination of the conflicted lawyer’s clients and make any jury arguments that call for attacking those clients. We are supposed to indulge the notion that, although the lawyers owed the defendant a zealous defense, they won’t and don’t consult on the cross-examination and jury arguments.

In any event, prosecutor Jay Bratt (a Justice Department lawyer now working for Smith) has alerted Woodward that three of his former clients may be witnesses in the special counsel’s case against Nauta. The Times report details that one of those witnesses is Yuscil Tavares, an information techie at Trump’s Mar-a-Lago resort. Tavares, the paper says, appears to be the technician whom Nauta and another defendant, Carlos De Oliveira, allegedly tried to convince to delete Mar-a-Lago surveillance footage at Trump’s request — an allegation that was recently added to the case in a superseding indictment (which also added De Oliveira as a defendant).

Prosecutors say they’ve previously warned Woodward that they believed Taveras has information that would incriminate Nauta. Taveras has retained new counsel since he began cooperating with the government. But again, Woodward’s duty of fealty to Taveras remains.

In the first instance, it is the obligation of a lawyer who knows he has a conflict to step aside (indeed, to avoid accepting a representation that will trigger a conflict in the first place, if possible). Nevertheless, it is common for conflicted lawyers to claim that there is no insuperable conflict and to counsel the defendant-client that any conflict can be waived. This puts the government in the uncomfortable position of having to seek the conflicted lawyer’s disqualification — uncomfortable because (a) the defense will invariably claim that the prosecution is denying the defendant’s right to counsel, but (b) any conviction of a defendant who is permitted to be represented by a conflicted lawyer is likely to be reversed on appeal.

There are some interesting things to be gleaned from this episode.

First, Judge Cannon is grasping the nettle, consistent with her determination to try to get the case to trial in May 2024 (even though I believe that is optimistic). Obviously, this is a case in which the lawyers will have to get security clearances to review discovery, so any need to change counsel threatens to set the schedule back (as, for that matter, does the government’s superseding of the indictment to add new charges and a new defendant). Consequently, Cannon has directed a rapid response from Nauta and Woodward to the special counsel’s request for what Florida’s federal courts call a Garcia hearing — named after a case involving scrutiny of potential conflicts of interest. The defense must file its brief ten days from now, on August 17 (the other defendants — Trump and De Oliveira — may, but need not, file briefs on this issue).

Second, Cannon appears to be displeased with Jack Smith on two scores: (a) filing sealed submissions without the court’s permission, and (b) potentially using his Washington grand jury to continue investigating the Florida case, which could smack of forum-shopping, though it may also be permissible. Smith also has the election-interference case against Trump in Washington, and if witnesses properly called there have testimony relevant to the Florida case, the prosecutor is not required to ignore or exclude it.

In the order she issued today, Cannon says Smith undertook to file under seal what he styled a “supplement” containing what he described as additional information “to facilitate the Court’s inquiry” into the potential Nauta/Woodward conflict of interest. According to the judge, Smith stated “in conclusory terms that the supplement should be sealed from public view ‘to comport with grand jury secrecy” rules, and in so doing “plainly fail[ed] to satisfy the burden of establishing a sufficient legal or factual basis to warrant” sealing both the supplement itself and the motion asking to seal it. She therefore struck both documents from the court docket.

I am guessing this is the sort of application that Smith is used to filing in the District of Columbia without being challenged by a judge on the need for secrecy. Cannon is telling him that’s not how it’s going to work in Florida: He will have to justify the need to keep information under wraps with some rigor. I suspect that the judge figured a great deal of the Mar-a-Lago litigation will, of necessity, be under wraps due to classified-information issues, so she will presume that anything that reasonably could be public should be public. If the government cannot (or does not wish to try to) establish a firm legal basis for sealing, prosecutors will either have to file their pleadings publicly or not file them at all.

Cannon also includes this intriguing directive to Nauta in contemplation of his August 17 response:

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.

As I note above, this could be no big deal, but I suspect otherwise.

Remember, one of the major issues in the Mar-a-Lago case is the ruling compelling Trump’s lawyer, Evan Corcoran, to testify and provide what turned out to be very damaging evidence against Trump — on the rationale that Trump was using Corcoran to obstruct the grand-jury investigation and therefore that the attorney–client privilege was pierced by the so-called crime-fraud exception (the doctrine that client communications with a lawyer in furtherance of a crime or fraud lose their privilege of confidentiality from prying government eyes and ears).

We can fully expect that Trump will argue pretrial that this ruling was wrong and that the government forum-shopped in order to get it: The Justice Department chose to convene a grand jury in its preferred Washington forum in order investigate a factual scenario in which every significant event occurred in Florida (and would ordinarily have been investigated by a Florida grand jury). As a result, the argument will go, Smith made his motion to compel Corcoran’s testimony to the D.C. district court’s then-chief judge Beryl Howell — who had a history of ruling against Trump on various investigative matters.

It is common for the defense to complain when prosecutors continue to use the grand jury even after a case has been indicted, but that is permissible (it is common for indictments in big cases to be superseded, often more than once, before trial). Cannon seems to have seized not so much on the fact that a grand jury is still investigating as on the fact — if it is a fact — that Smith is using the Washington grand jury to investigate a case so obviously centered in Florida that he ended up having to indict it there.

If I were the Trump defense, I would take it as a hopeful sign that the judge seems concerned about the government’s reliance on the Washington court in its Florida investigation.