Free Lawyers! But Big Strings Attached

Defendants Carlos De Oliveira, Donald Trump and Walt Nauta. Photos from CNN

If your boss is accused of criming, and investigators want to talk to you, here’s a tip: Be wary if the company generously offers to pay for your lawyer.

Remember Cassidy Hutchinson, the former aide to former White House chief of staff Mark Meadows? She learned this lesson quickly. When January 6 investigators came asking questions about what she had seen and heard, she got assigned a Trumpworld lawyer, who apparently advised her that it was perfectly fine to say you didn’t remember something.

The problem was, Hutchinson did remember, very well in fact, and felt uncomfortable saying she didn’t. That would be false testimony, in her view. So she reached out to her friend Alyssa Farah Griffin, who was also a former aide within the White House, who in turn put her in touch with then-Rep. Liz Cheney of the January 6 Committee. From there, Hutchinson got herself a new lawyer— one whose loyalties were with her, and not with Trump. And that’s how the most explosive testimony of last summer came about.

We’re seeing something eerily familiar play out in the federal obstruction charges against Trump, his valet Walt Nauta, and a new defendant, Carlos De Oliveira, all in connection with a key witness identified only as Trump Employee 4 in the indictment. That man’s name, we have since learned, is Yuscil Taveras, and he worked in IT at Mar-a-Lago. According to the superceding indictment, Taveras is a key witness to a plot among Trump, Nauta and De Oliveira to delete video evidence related to the movement of boxes containing top secret and other classified documents, which was part of a broader effort to thwart their recovery by the Justice Department.

Let’s take a look at how Taveras flipped and became a witness for the prosecution. Like Hutchinson, it has to do with who his lawyer was at the time he first gave testimony, versus who it was when he later recanted and provided new testimony. You’ll see clearly how conflicts can quickly arise when your lawyer is working for the boss and not really at all on your behalf, and why that representation often comes with big strings attached.

Trumpworld lawyers up

When it became clear that the Justice Department was investigating the activity of Mar-a-Lago employees, including those who may have assisted Donald Trump in preventing the return of top secret and other classified documents, Trumpworld acted quickly. An attorney for Trump put Mar-a-Lago employees Walt Nauta and Yuscil Taveras in touch with the same lawyer, a guy named Stanley Woodward. His fees would be covered by Trump’s “Save America PAC.”

These lower-level employees must have initially felt very relieved. There is no way any of them on their own could afford legal representation. And according to prosecutors, they may have committed crimes on behalf of their boss, so it stood to reason that the boss or his political fund should pay for their lawyers. What a nice man!

This representation of course helps Trump keep his potential co-defendants loyal and on message. With a clever lawyer guiding their testimony, they might all just fall in line. After all, if none of them could recall what happened, or better yet if they all denied it ever did, then the government wouldn’t be able to make its case.

So Trump, in a way, did build a wall after all: a wall of silence from his underlings. But there were cracks in it, and Jack Smith set out to exploit them.

Taveras and Oliveira initially testify

According to a recent filing by Smith’s office, while Taveras was still represented by Woodward, he went before the grand jury in D.C. and “repeatedly denied or claimed not to recall any contacts or conversations about the security footage at Mar-a-Lago.” Not good for the prosecution, but great for Trump. 

Similarly, claimed Smith, “In testimony before the same grand jury, De Oliveira likewise denied any contact with [Taveras] regarding security footage.”

The thing was, Smith’s office already had evidence, in the form of text messages, video surveillance, and other witnesses, that both Taveras and De Oliveira were lying. And those lies seem coordinated, which was no surprise given that they were both represented by Woodward.

Note that a clever lawyer like Woodward doesn’t have to tell his clients to lie for Trump. That message can get delivered in all kinds of ways. But Woodward was not getting paid by these two men. His paycheck was coming from Trump’s PAC. I’m going to take a leap here and say Woodward likely didn’t have the two men’s best interests at heart and may not have given them the best legal advice—which would have been to cooperate and try to get the best deal you can and maybe even avoid prosecution.

The first indictment drops, but the grand jury continues to investigate

On June 8, 2023, Trump and Nauta were indicted by a grand jury in Florida, including on charges of obstruction. For the moment, De Oliveira and Taveras seemed in the clear. 

What they didn’t know, though, was that Smith’s grand jury in D.C. wasn’t done investigating. (Judge Aileen Cannon, that fount of raw intelligence and judicial experience, apparently has taken issue with the fact that a grand jury dared to continue to work on matters related to the case in D.C., outside of her jurisdiction. This is of course both normal and proper, as this example plainly shows.)

The D.C. grand jury obtained video evidence that contradicted the sworn testimony of De Oliveira and Taveras. So now they had a potential perjury charge hanging over them, as well as possible obstruction charges. The Justice Department sent Taveras a target letter saying he was the subject of a grand jury investigation due to his “false sworn denial” before the grand jury earlier.

The conflict over the Trump-paid lawyer crystallizes 

Imagine you are attorney Woodward, and your client Taveras receives such a letter. If you advise Taveras to testify truthfully, that will implicate and possibly condemn your other client, Nauta. But if you advise him not to correct his testimony, you could be condemning him to a perjury charge.

That’s what a real conflict looks like. You can’t help one of your clients without hurting the other.

At this point, the government moved for a hearing to resolve the conflict. This is called a “Garcia” hearing after the case United States v. Garcia, which first addressed what should be done in such an untenable situation.

And wow were there fireworks at that hearing. When the judge made independent counsel (a federal public defender) available to Taveras, and when that lawyer explained the stakes and the risks to him, Taveras promptly fired his Trump lawyer, Woodward. He then retracted his prior testimony and, according to the government, “provided information that implicated Nauta, De Oliveira, and Trump in efforts to delete security camera footage.”

That’s what led to a superseding indictment that named De Oliveira as a defendant and embroiled Trump and Nauta in a second effort to obstruct justice—one involving a plot, spoken aloud to Taveras, to delete video footage relating to the moving of boxes around Mar-a-Lago.

The conflict ain’t over

Today, Woodward continues to represent Nauta in the criminal case. But there’s a big steam train of a conflict heading his way, and the government has flagged it by asking for another Garcia hearing over Woodward’s representation of Nauta.

Why is this still a problem? Imagine that Taveras is called as a witness to the stand, as he almost certainly will be. Now Woodward has a serious dilemma. He used to represent the witness who is now on the stand. He knows things about that witness that were told to him in confidence. And he still owes a duty of loyalty to that former client.

How on earth can he cross-examine Taveras, his former client, to benefit Nauta, his current one?

It’s a big problem. And if Judge Aileen Cannon were even a shade smarter than she is, it would be a slam dunk. As another court in the Southern District of Florida found in United States v. Braun, such a scenario “presents defense counsel with the impossible dilemma of cross-examining one former client to benefit another current client.” 

The right answer here would be to allow Nauta the option to also have independent counsel, just like Taveras got in D.C. It took very little time for Tavera to flip once that happened.

And that’s precisely what Jack Smith wants now—to help pry Nauta away from the poisonous cloud of Trumpworld, to help him understand, from a new lawyer’s perspective, that going to jail in order to protect Trump is a really stupid move—and one that probably isn’t going to save Trump anyway.

Smith isn’t done, either. In addition to moving to expose Woodward’s continuing conflict, Smith has filed a motion for a Garcia hearing to consider the conflict with the other Trump employee defendant, De Oliveira. (A refresher: De Oliveira is the employee named in the superceding indictment who helped Trump and Nauta with the scheme to delete video evidence.) 

What’s that motion based on? It turns out, De Oliveira is represented by John Irving (not the best selling novelist, but a Trumpworld attorney) who, get this, is also representing three witnesses that the government intends to call to the stand.

The point of a Garcia hearing is not necessarily to oust the lawyer from representation but to allow the lawyer’s clients a chance to understand the conflict that has arisen and, if they desire, to obtain independent counsel. De Oliveira has got to be looking at what happened with his co-worker, Taveras, and wondering if he should get a non-Trump lawyer and listen to what they have to say. And that would be huge.

In short, the strings that came with those Trumpworld lawyers are looking more like ropes with which to hang themselves.

When lawyers remark that Smith is playing 3-D chess, this is the very kind of thing they mean. Smith has already flipped one key Trump employee by peeling away his lawyer. The other two Mar-a-Lago employees—Nauta and De Oliveira—could be next.