Former President Donald Trump arrives at Ronald Reagan Washington National Airport, Thursday, Aug. 3, 2023, in Arlington, Va., as he heads to Washington to face a judge on federal conspiracy charges alleging Trump conspired to subvert the 2020 election. (AP Photo/Alex Brandon)
While most media attention has been focused on the Washington, D.C., indictment of Donald Trump for multiple criminal conspiracies to defraud the United States, a seemingly routine pretrial motion in the Florida “retained documents” case — involving only codefendant Waltine Nauta — potentially spells serious trouble for the former president.
On the surface, special counsel Jack Smith’s motion for Garcia hearing asks only that the court inquire into possible conflicts of interest for Nauta’s lawyer, Stanley Woodward. The subtext, however, is that Woodward, who has been described as a go-to lawyer for Trump world “bigwigs,” may well be disqualified as defense counsel, and any replacement attorney might be far more inclined to encourage Nauta to take a deal and testify against Trump.
Nauta is, by any measure, a relatively minor player. A navy veteran, he was Trump’s military valet in the White House, and now serves at Mar a Lago as the former president’s “body man.” He was indicted along with Trump in June for assisting in the concealment of boxes of classified documents and lying to investigators. In a superseding indictment last month, Nauta was also charged with attempting to delete footage from surveillance cameras.
It is unknown how Nauta first retained Woodward, who is based in Washington, D.C., although the contact was most likely through Trump’s world. Woodward and his partner have represented prominent Republicans on issues related to the Jan. 6 insurrection, including House Speaker Kevin McCarthy (R-Calif.) and Trump aides Dan Scavino and Peter Navarro.
The special counsel’s motion is based on Woodward’s current or past representation of numerous witnesses in the investigation of the Florida case, including some who testified about Nauta before the grand jury. One such witness, who has been identified as Yuscil Taveras, eventually dropped Woodward as his counsel and began cooperating with the prosecution.
As Smith’s motion points out, Woodward’s multiple representations could end up requiring him to cross-examine his own clients if Nauta’s case proceeds to trial. That is a classic conflict of interest, under the Rules of Professional Conduct in both Florida and the District of Columbia, in which the lawyer has no good options. A zealous cross-examination on behalf of the defendant would risk violating the duty of confidentiality to the witness (which continues even after the representation ends) while maintaining the witness’s confidence would mean pulling punches on the cross-examination. In other words, the lawyer cannot simultaneously fulfill professional obligations to both a criminal defendant and a prosecution witness.
Such conflicts can be waived under certain circumstances, following the lawyer’s full disclosure of “the material risks” and limitations of the representation. Thus, the initial purpose of a Garcia hearing is for the judge to determine whether the defendant has truly provided the requisite “informed consent.”
The rationale for the judicial inquiry, as explained in the special counsel’s motion, is “to protect the integrity of the court’s proceedings and the rights and interests of all affected parties.” The prosecutor’s underlying interest, however, is to preserve the validity of any subsequent conviction, lest the defendant later claim ineffective assistance of counsel as grounds for appeal.
Some conflicts are uncontestable even if a defendant insists that he is satisfied with the disclosures and willing to accept the consequent risks. Under the Florida Rules of Professional Conduct, however, the judge may refuse to accept a conflict waiver if it appears that the attorney cannot provide fully competent representation, even if that means disqualifying the defendant’s counsel of choice.
Depending on the evidence at the Garcia hearing, there is a very good chance that Judge Aileen Cannon will find that Woodward’s conflicts are too many and too profound to remain in the case. In addition to his other Tump-adjacent clients, there is also the matter of Woodward’s compensation for Nauta’s representation and other cases, which appears to be coming from the Trump-affiliated Save America PAC, which has also paid Nauta’s salary at Mar a Lago.
Although third-party payment of attorney’s fees is permissible, it requires additional disclosures and informed consent. Importantly, the payment source must not interfere with the lawyer’s “independent professional judgment,” which is especially important when the payor has a separate, and perhaps conflicting, interest in the litigation.
There is no question about Trump’s interest, which is to maintain Nauta’s loyalty so that he does not begin cooperating with the prosecution. Thus far, Nauta’s dedication to his boss has been unaffected by the criminal charges. Nauta and Woodward were seen having dinner with Trump at Mar a Lago shortly after the indictment, and Nauta even held Trump’s umbrella at his recent arraignment in Washington.
Would Woodward’s disqualification, and the substitution of an unentangled lawyer, affect Nauta’s solidarity with Trump?
Let’s put it this way: Woodward is unquestionably an honorable lawyer. I do not doubt that he has obtained Nauta’s formal consent to his representation, following extensive disclosure, which Nauta will confirm in court. Conflicts of interest, however, often have their greatest impact below the surface, subtly distorting judgment, clouding insights and blunting acuity, in ways that the lawyers and clients themselves do not appreciate or perceive.
Clients sometimes make self-defeating choices, resulting in preventable legal jeopardy due to misguided loyalty or unreasonable expectations. Such clients must be vigorously advised — or even forcefully urged — to change their minds for their own good.
Nauta will ultimately decide for himself whether to defect from the defense camp. But Woodward is not the right attorney to deliver the sternest of warnings about the dangers of sticking with Trump. That would be the job of an unconflicted lawyer, and we will soon find out whether Judge Cannon will require one.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of Modern Trial Advocacy, and has written many other books and articles on legal ethics and law practice.
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