Last night, we posted my column on some intriguing developments in the Biden special counsel’s Mar-a-Lago documents case against former president Donald Trump. These involve a motion prosecutors have made to begin the process of seeking to have one of the defense lawyers, Stanley Woodward, Jr., disqualified from representing co-defendant Waltine Nauta. (According to the recently-filed superseding indictment, Nauta conspired with Trump and a third defendant, Carlos De Oliveira, to obstruct the grand jury investigation of Trump’s retention of classified intelligence materials.)
The claim is that because he represents multiple people connected to the case, Woodward is laboring under a conflict of interest that could make it unethical and unworkable for him to provide Nauta with effective assistance of counsel, as the Constitution requires. As I detail in the column, there are sound legal reasons for prosecutors to seek the recusal of a conflicted lawyer. Nevertheless, it’s a cheeky move by the Biden DOJ’s special counsel under these circumstances.
First, it underscores what a farce it was for attorney general Merrick Garland to appoint a special counsel to investigate Trump. As I’ve pointed out several times, this was strictly a political move, not a legal one. There are two preconditions for the appointment of a special counsel: a serious basis for an investigation or prosecution (which there obviously is in the documents case), and a conflict of interest that prevents the Justice Department from ethically investigating or prosecuting the case in the normal course. There is and was no conflict of interest that prevented the Biden DOJ from investigating and prosecuting Donald Trump. Indeed, prior to Garland’s November 2022 appointment of Smith, the Biden DOJ had been investigating Trump for a year-and-a-half (in both the Mar-a-Lago and January 6/2020 election probes).
Garland did not appoint Smith because the special counsel rules called for it. He did it because he and President Biden knew that Trump was going to argue that the president was using the Justice Department as a partisan political weapon against his main competition in the 2024 presidential campaign. Garland thus appointed a lawyer from outside the government (Smith was a prosecutor at The Hague at the time) to create the illusion that Biden and his Justice Department have nothing to do with prosecutions of Trump — even though Smith reports to Garland and the power he wields is Biden’s.
As it is playing out, the Mar-a-Lago prosecution shows what a fiction the special counsel appointment is. The prosecutor who appears to be playing the lead role — and who is pushing for an inquiry that could lead to the disqualification of Nauta’s lawyer — is Jay Bratt. While Bratt is now nominally working for Smith, he is a top Biden Justice Department official (the top counterintelligence lawyer in DOJ’s National Security Division), and he was running the Mar-a-Lago documents investigation before Garland appointed Smith.
We are all supposed to accept the fiction that Garland brought in Smith from “outside” the government to run the case independently because of the Biden DOJ’s “conflict” in investigating Trump. In reality, Smith was brought in because he was a top official in the Obama/Biden Justice Department for years before his gig at The Hague; and the Mar-a-Lago case appears to be led day-to-day by Bratt, the same Biden DOJ prosecutor who was running it before Garland laundered the case through Smith’s “special counsel” appointment.
This brings us to the second point: Even as Bratt is questioning the ethical propriety of Woodward’s participation in the case, he, too, is laboring under a conflict of interest.
Bratt not only ran the investigation that Trump and his co-defendants are accused of obstructing, but he is also potentially an important witness in the case. You can read all about it in this New York Times report published shortly after the August 2022 Mar-a-Lago search — “Trump Lawyer Told Justice Dept. That Classified Material Had Been Returned.” For these purposes, Bratt was the Justice Department. That is, he is the government lawyer who arranged and attended the June 3, 2022, Mar-a-Lago meeting, at which Trump’s lawyers, Evan Corcoran and Christina Bobb, presented a package of 38 documents marked classified, which they told Bratt were the only such documents on the premises.
It is crucial evidence in the prosecution’s case: Trump himself reportedly attended the meeting briefly, and much is made by the prosecution (rightly so) of the fact that neither Trump nor his lawyers claimed to Bratt that the documents had been declassified. Moreover, because it was not true that those 38 documents were the only ones marked classified still at Mar-a-Lago (about a hundred more were seized by the FBI during the search two months later), the false representations made to Bratt will not only be presented as proof of Trump’s guilt; they have already been used by prosecutors as a basis to force Corcoran to testify and surrender to the grand jury his extensive notes of his conversations with Trump. The testimony and notes of Trump’s lawyer became central to the indictment, comprising some of the most damning evidence in the case on the obstruction charges.
Bratt raised Woodward’s conflict because it is against ethics rules for an attorney to represent a client in a case where a second client will be a witness against the first client. Yet, it is also against ethics rules for an attorney who is a key witness in a case — who is “an actor in the facts” the jury will consider — to participate as a lawyer in the case. If, as one might expect, the defense responds to Bratt’s drawing attention to Woodward’s ethical dilemma by drawing attention to Bratt’s own ethical dilemma, Bratt will surely counter that he is not an essential witness. He was accompanied to the June 3 Mar-a-Lago meeting by FBI agents and will contend that they can testify in his stead. But will that satisfy the defense? Trump, in particular, may decide that he wants his trial lawyers to call Bratt to the stand to question him about his interactions with Trump’s lawyers, Corcoran and Bobb.
It is a bit rich for the prosecution to take the position that a special counsel was needed because Garland determined the Biden Justice Department had a conflict in investigating and prosecuting Trump as he was seeking the presidency, but that the case should be prosecuted by a top official of the supposedly conflicted Biden Justice Department — who happens to have been running the case at the time Garland suddenly decided an “outside” special counsel should be appointed.
Finally, a third point: Isn’t it remarkable for Biden DOJ lawyers to be reminding other counsel about their ethical obligations and for the Biden DOJ to appoint a special counsel for Trump, as to whom it has no real conflict of interest, when Garland has refused for over two years to appoint a special counsel to run the Biden Justice Department’s investigation of Hunter Biden and the Biden family influence-peddling business?
To summarize, in the Hunter Biden case, instead of tending to its duty to represent the American people and vindicate the rule of law, the Biden DOJ is collaborating with lawyers for Biden’s son to undermine a prosecution in which President Biden himself is implicated. And in the Mar-a-Lago case, the Biden DOJ has ensured that the prosecution is still being steered by Jay Bratt, a top Biden DOJ official, notwithstanding that (a) Biden’s attorney general claimed a special counsel was necessary, and (b) Bratt appears to be a significant witness in the case.
How seriously, then, do we suppose the judges in these cases should take the Biden Justice Department’s bloviations about the potential conflicts of interests and ethical improprieties of other lawyers?