Former President Donald Trump’s attorneys and those of co-defendant Walt Nauta appear in southeast Florida on May 22 to argue for the dismissal of his classified documents case.
U.S. District Judge Aileen Cannon presides over back-to-back hearings that consider multiple motions to dismiss the case.
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Judge Points Out Indictment Is Confusing
Judge Cannon asked Mr. Bratt why charges used the term “knowingly, corruptly,” stacking two states of mind on top of each other.
Mr. Bratt offered, as an English major, the interpretation that “knowingly” modified the term “corruptly.”
Judge Cannon said there was a “potpourri” of criticisms about the indictment, and Mr. Bratt agreed there was information that should not have been included but maintained there was nothing wrong with it.
The judge asked Mr. Bratt why they repeatedly referred to Mar-a-Lago as a “club” and he said it was to counter characterizations of Mar-a-Lago as a “fortress.”
Judge Cannon responded, indictments are not intended to defend against potential criticisms.
He argued that the indictment could be kept away from the jury as a remedy for some of the language used.
Mr. Woodward argued that the prosecutors chose to use a speaking indictment and had to live with the consequences, which he believes should include dismissal of deficient charges.
Woodward Says Charge Criminalizes Conversation
Mr. Bratt argued that all of Mr. Woodward’s arguments were ones that could be made to a jury, not warranting pretrial dismissal of the indictment.
Mr. Woodward argued count 39 had elements of the alleged offense that were “unclear on its face.”
He argued that counts 40, which charges all defendants with “altering, destroying, mutilating, or concealing an object,” and 41, which charges all defendants with “corruptly altering, destroying, mutilating, or concealing a document, record, or other object,” similar to count 38 have no criminal acts alleged.
Counts 40 and 41 allege the defendants asked an employee to delete surveillance footage. Mr. Woodward disputed this allegation, saying a conversation occurred where an employee was asked whether footage could be deleted and that was the end of the conversation.
He argued that discussion itself could not constitute a crime because there was no allegation beyond the conversation that “anybody did anything of any substance.”
The judge pointed out that the charge doesn’t only allege a conversation, but attempt to persuade the employee to do something.
Mr. Woodward said “I’ll give that some thought” but maintained that innocent conversation with a third party about possible actions was being criminalized in this speaking indictment.
Defense Argues ‘False Statements’ Charge Was Due to FBI Phrasing
Count 39 charges Mr. Nauta with “false statements and representations” for what he said during a voluntary interview with the FBI.
Mr. Nauta said he did not know where allegedly missing boxes were and that he did not know how boxes given to NARA had been moved to Pine Hall.
Mr. Woodward argued that it is not clear how Mr. Nauta’s statements here are false, and said that if the responses seem vague it was because the questions asked by the FBI were vague.
DOJ: Nauta Didn’t Need to Know What Was in Boxes
Mr. Bratt argued that counts 34 through 37 address the same underlying conduct, but they are separate counts because the DOJ cites different criminal statutes.
Judge Cannon seemed annoyed with Mr. Bratt a few times as he did not give direct answers to her targeted questions, but the judge ultimately accepted his point.
The judge said that reasonable people, the jury, would need to look at these counts and understand why they were separate charges. She said they would need to “exercise with care as we move forward” in the case.
Mr. Bratt said the statutes also differed in that not all of them required knowledge of concealment, for instance Count 36 does not include “corruptly” in its language.
Mr. Bratt argued that Mr. Nauta did not need to have knowledge of what was in the boxes—such as whether they contained classified information—for the actions to be a crime.
Mr. Bratt said the crime was the obstruction of the investigation, which he argued Mr. Nauta did through moving the boxes. These counts do not charge Mr. Nauta with concealing classified information, but concealing information in an investigation.
Judge Cannon asked if two of three defendants didn’t know what was in the boxes, what was the joint purpose of the alleged conspiracy.
Mr. Bratt said Mr. Nauta and Mr. De Oliveira did not need to share President Trump’s motive, they just have to share the intent to obstruct.
Defense Says Counts 35 and 37 Insufficient to Nauta
Counts 35 charges President Trump and Mr. Nauta with “corruptly concealing a document or record.” Count 37 charges the two defendants with “scheme to conceal.”
Mr. Woodward said there were several deficiencies for both counts, because they don’t show that Mr. Nauta knew what he was inside the boxes he was moving, and don’t let the defendant know what crimes he committed based on how the counts are listed.
Mr. Woodward said the indictment was confused and “unnecessarily complicate” him having sufficient notice as to what crimes were committed. He said a reasonable person could not look at the actions listed in the indictment and understand what is allegedly criminal at face value.
“The defendants deserve a well pleaded case,” Mr. Woodward said.
Judge Cannon has heard these arguments before, and pushed Mr. Woodward to move on to explaining what he believed was wrong with the pleading.
Mr. Woodward argued that Mr. Nauta cannot be charged for concealing boxes of classified information without knowing what was criminal about his actions. Namely, Mr. Nauta did not know the contents of the boxes, and therefore could not have obstructed justice, Mr. Woodward argued.
Counts 34 through 37 all allege concealing or withholding something, and Mr. Woodward argued all the counts addressed the same conduct without clarifying why Mr. Nauta was being charged with these counts.
Indictment Confusing as to Nauta’s Actions, Attorney Says
“On its face, the indictment is confusing and prejudicial to Mr. Nauta,” Mr. Woodward argued.
He said the indictment alleges president Trump was trying to persuade an attorney to hide and conceal documents from a federal grand jury and doesn’t explain why Mr. Nauta is named in the same charge.
“Mr. Nauta is not sufficiently put on notice how he is criminally liable” for the alleged conduct, Mr. Woodward argued.
Judge Cannon had previously heard a motion from Mr. Nauta for a bill of particulars detailing the actions for which he is being indicted, but the judge rejected the motion.
The judge asked Mr. Bratt to explain what is meant in the indictment by “knowingly, corruptly persuade.” She found the charge format to be “unusual.”
DOJ Says Charges Structured Correctly
Judge Cannon asked prosecutors to explain the legal theory behind including two defendants for different acts in counts 34 and 36.
Mr. Bratt argued the indictment was “structured entirely correctly.”
He argued that Mr. Nauta was also liable for actions President Trump took on his own because they were part of the same conspiracy and actions “reasonably foreseeable” as within the scope of that conspiracy.
Judge Cannon pointed out that these two counts were not conspiracy charges, and asked Mr. Bratt if there were other indictments using this specific charging structure. He said he could not think of one.
Defense Says Count 33 Should Be Dismissed Because Trump Attorney Did Not Give False Statement
Count 33 charges all three defendants with “conspiracy to obstruct justice.”
The indictment outlines a timeline of events wherein President Trump allegedly misled his attorney to provide the FBI with a false statement of certification that President Trump did not have the documents called for by a subpoena, and suggested the attorney hide or destroy these documents.
Mr. Woodward argued that the attorney had every reason to believe what they said in the certification statement was true, and that President Trump did not in fact have those documents.
The attorney could not have been lying, Mr. Woodward argued, and therefore it was a lawful act. He argued the defendants could not be charged for aiding and abetting a lawful act.
Defense Says Counts 34 and 36 Should Be Dismissed for Duplicity
Mr. Woodward is also arguing the second motion, with counsel for codefendants Carlos De Oliveira and President Trump present.
He argued counts 34 and 36 should be dismissed for duplicity.
Count 34 charges both President Trump and Mr. Nauta with “withholding a document or record,” alleging they knowingly engaged in misleading conduct with intent to cause another person to withhold a record, document, or other object from an official proceedings.
It alleges that President Trump tried to persuade an attorney to hide documents from a grand jury, and that President Trump and Mr. Nauta both misled the attorney by moving boxes so the attorney could not find and produce the documents in the boxes to the grand jury.
Count 36 charges both President Trump and Mr. Nauta with “concealing a document in a federal investigation,” alleging they knowingly concealed or falsified records with the intent to obstruct or influence an investigation.
It alleges President Trump and Mr. Nauta both hid President Trump’s continued possession of classified documents from the FBI, and that President Trump caused a false certification to be submitted to the FBI.
Mr. Woodward said these counts allege different acts to President Trump and Mr. Nauta but use the same charge, calling it “duplicitous,” one example of insufficient pleading. He argued multiple crimes were being alleged in the same count.
He argued that the confusing charges would not be made clearer if presented to a jury.
Judge Cannon asked if he was making this argument for any other counts, and Mr. Woodward said no, but the defense believed other counts were deficient for different reasons.
Second Hearing Begins With Discussion of Woodward Phone Records
Judge Cannon commenced the afternoon hearing.
Before they argued on the motion from all defendants to dismiss the case on insufficient pleading, the judge said she had reviewed the search warrant prosecutors delivered in November 2022, which Mr. Woodward said did not include an obstruction charge.
Judge Cannon said after reviewing the document, there was some basis to believe obstruction was being investigated.
Mr. Woodward argued that prosecutors had also obtained his phone records, and communications surrounding that action should be subject to discovery. Mr. Bratt argued they were obtained through a third party and not subpoena of Mr. Woodward.
Judge Cannon ended the discussion, saying these arguments pertain to another motion not scheduled for today’s hearing.
Defense Says DOJ Hasn’t Disputed Timeline
Mr. Woodward, in his rebuttal, said that despite the prosecutors’ denials, the timeline had not changed: Mr. Nauta was asked to cooperate, he was threatened with prosecution for perjury, he declined to testify a second time, and then was charged with obstruction.
Mr. Woodward said he would have handled negotiations differently had he been notified of an obstruction charge.
Mr. Harbach said prosecutors had presented a cell phone search warrant to the defense in November 2022 that cited an obstruction charge, and Mr. Woodward said the original copy did not include that citation, but a copy of the document later produced in discovery did have the addition of that citation.
Mr. Woodward then again requested an evidentiary hearing on this matter, saying he would testify as to the disputed conversation.
The court is in recess, and will resume in the afternoon with a second hearing.
No One Comes Close to Nauta’s Situation, DOJ Argues
Mr. Harbach argued that Mr. Nauta was not in a comparable situation to the unindicted employees of President Trump.
“The only people that are remotely comparable to him are his codefendants,” Mr. Harbach said. “There is no one who not only obstructed justice, lied to the grand jury about it, lied to agents about it” and also allegedly “surreptitiously moved boxes” and tried to get surveillance video documenting the move deleted.
Mr. Harbach argued that there was no evidence of animus or selective and vindictive prosecution against Mr. Nauta, and therefore he was not entitled to discovery on this matter.
Judge Asks About Out of District Grand Juries, Expresses Concern
Judge Cannon asked why a grand juries were empaneled outside of the district where charges were brought.
Mr. Harbach said he was not prepared to comment on why charges were brought in Florida instead of Washington, but “not anything remotely untoward” occurred.
As for why a Florida grand jury was empaneled in Miami instead of Florida, Mr. Harbach said he had just learned himself that it was because a grand jury was not available in West Palm Beach on the dates prosecutors were in Florida, but they were available in Miami.
Judge Cannon wanted to know whether there were any other cases prosecutors were aware of that were done with an out of district grand jury regarding unlawful retention of documents. Mr. Harbach was not aware.
Judge Cannon said it was hard for her to make certain decisions because of the two different grand juries.
DOJ Says Woodward Changed Story
Mr. Harbach denied there was any attempt to “bribe and intimidate” Mr. Woodward by Mr. Bratt.
Mr. Harbach, wiggling his fingers to the right, emphasized the differing versions of Mr. Woodward’s conversation with Mr. Bratt, in one account saying Mr. Bratt was “dangling” an offer to help boost his chances at a judgeship, but in other instances alleging Mr. Bratt was “threatening” the potential judgeship.
“Neither one of those things happened,” Mr. Harbach said.
He also said that if this was such a big concern, why was it not detailed in the motion.
Judge Presses DOJ on ‘Trump Lawyer’ Comment
Mr. Harbach brought up the “Trump attorney” comment and Judge Cannon interrupted him with a question.
Mr. Bratt was alleged to have told Mr. Woodward he didn’t believe he was a “Trump lawyer” or “Trump guy” and could be counted on to do the right thing.
“Was Mr. Woodward judged for not being a Trump lawyer?” Judge Cannon asked.
Mr. Harbach was again evasive, and said he was reluctant to give a fact-by-fact account of what was said in the meeting.
This seemed to annoy the judge, who said Mr. Harbach had been willing enough to call the conversation a “fantasy.”
Mr. Harbach pushed back, and said he was unwilling to say if such a statement was made.
Judge Cannon told him to answer her question.
She said it was her job to uphold professionalism, and this did not sound professional.
“Why do these comments need to be made?” she asked.
Mr. Harbach then paused his arguments and conferred with Mr. Bratt.
He returned to say that Mr. Woodward had taken fragmentary quotes and reported them in an unfair way out of context, stripping them from their meaning.
Judge Cannon asked if there was evidence, like notes, preserved from meeting, or notes that have since been disposed of, and Mr. Harbach was visibly moved and very loudly denied it.
“I’m going to have to ask you to calm down,” the judge said.
DOJ Has Heated Exchange With Judge Over Woodward’s Claims of Pressure
Mr. Harbach got heated when he called Mr. Woodward’s anecdote about his exchange with Mr. Bratt “an absolute fantasy” and claimed what Mr. Woodward was implying “did not happen.”
Mr. Bratt was sitting in the courtroom, but did not argue or address the anecdote himself.
Mr. Harbach argued that if that showed any animus, it would be toward Mr. Woodward, and not Mr. Nauta. He further argued that if this was the basis for animus, then the target letter would also show animus toward Mr. Woodward instead of Mr. Nauta.
Animus toward an attorney doesn’t show selective and vindictive prosecution, he argued.
Judge Cannon asked Mr. Harbach if he was saying that even if prosecutors were ordered to turn over communications about Mr. Woodward, there would be no evidence to prove these claims.
Mr. Harbach was evasive, prompting the judge to ask him directly to answer her question.
Mr. Harbach remained evasive, answering that Mr. Nauta had not presented enough evidence for prosecutors to even answer that question.
DOJ Says Nauta Has No Fifth Amendment Argument
Mr. Harbach argued that the obstruction charge came when it did because the prosecutors had by then obtained video evidence of Mr. Nauta moving boxes at Mar-a-Lago, and not because of the narrative of cooperation Mr. Woodward presented. He argued the timing of the target letter was not evidence of causation.
Mr. Harbach said Mr. Nauta had come “nowhere close” to proving selective and vindictive prosecution, and stated he was not being punished for exercising his right to not testify.
Mr. Harbach then argued that because Mr. Nauta was not being compelled to testify, he could not invoke the Fifth Amendment as a defense.
Just being asked to testify and then being charged for declining to testify would not meet the bar for selective and vindictive prosecution, he argued.
‘Garbage Argument,’ DOJ Responds
Prosecuting attorney David Harbach was visibly frustrated throughout the exchange between the judge and the defense.
“It was difficult to sit through,” Mr. Harbach commented, before arguing that the prosecutors abide by department rules and doctrines and denied any misconduct.
Mr. Harbach argued that Mr. Nauta had presented a claim of actual vindictiveness in his court filings, but this morning Mr. Woodward had argued about a “presumption” of vindictiveness, bring up issues that were not in the motion.
Actual vindictiveness would require evidence of genuine animus toward a defendant for exercising their legal rights, and evidence that the charge would not have come if not for the defendant exercising that right.
He called it a “seat of the pants” argument, saying Mr. Woodward should have put his points into writing and that “this is no way to run a railroad.”
Defense Compares Nauta to Biden Ghostwriter, Clinton Employee
Mr. Woodward argued that others in situations similar to Mr. Nauta had not faced prosecution, one of the requirements in establishing selective and vindictive prosecution.
He pointed to a ghostwriter for President Joe Biden, Mark Zwonitzer, who had deleted recordings that contained sensitive information after learning about special counsel Robert Hur’s investigation. Mr. Zwonitzer has not been charged. An employee deleted emails for Hillary Clinton amid a federal investigation, and also was not charged.
Mr. Woodward also argued that other Mar-a-Lago employees were not indicted, but Judge Cannon pointed out the prosecutors had accounted for why they did not pursue charges for the unnamed employees in the indictment.
‘One Hand Tied Behind Her Back’: Codefendants Demand Grand Jury Documents
Mr. Woodward asked the judge to order prosecutors to hand over materials gathered through the grand jury empaneled in Washington, arguing that she was also flying blind without access to these proceedings.
Mr. Woodward argued the court had “one hand tied behind her back” as Judge Cannon is still, like Mr. Woodward, unaware of what led to these charges. He added that these include ex-parte talks a lawyer for codefendant President Trump had with prosecutors.
He had made such discovery requests himself, and was told by prosecutors they had already given him everything he was entitled to.
“I think that this court is absolutely entitled to see the records that gave rise to this prosecution,” Mr. Woodward said. Until those records are provided, he said, they don’t know whether or not “harassing and retaliatory actions” occurred with others in the case.
Woodward Says He Was Pressured By Prosecutor
Mr. Woodward brought up claims he has made of prosecutorial misconduct in dealing him both him and his client.
Mr. Woodward has stated in multiple court filings that prosecutor Jay Bratt, Chief of the Counterintelligence and Export Control Section and part of the special counsel’s team, had told Mr. Woodward he “wouldn’t want to do anything to mess up” a potential judgeship and nomination by President Joe Biden he was being considered for, making a comment that he was “not a Trump lawyer” and implying he should influence his client to cooperate.
Mr. Woodward said during the hearing that he had not brought it up when it occurred because “I’m a big boy, and I can take,” but this “rose to the level of misconduct” when his client was indicted for obstruction when he declined to do a second interview before a grand jury in Washington.
Mr. Woodward requested all documents and communications on the prosecutors’ side concerning himself.
The judge said discovery laws involve the defendant, not counsel, but Mr. Woodward, raising his voice, argued that it must include the defense attorney in this case because of the “threat and other coercive tactics that were used against the lawyer for the defendant.”
Woodward Says There Was ‘Campaign’ to Gain Nauta’s Cooperation
Mr. Woodward argued they were “capital C cooperating” with the prosecutors when Mr. Nauta was hit with a target letter that included an obstruction charge.
He argued the special counsel had “sought to prosecute any way they could” in retaliation for Mr. Nauta’s refusal to testify against President Trump in the unprecedented prosecution of a former president, and there had been a “campaign” to secure Mr. Nauta’s cooperation.
Defense Argues Nauta Was Misled
Mr. Woodward requested an evidentiary hearing for the motion.
Mr. Woodward argued that Mr. Nauta had been led to believe he was being looked at as a witness in the D.C. District, where Mr. Nauta had testified before a grand jury.
Perhaps referencing Judge Cannon’s reprimand of the special counsel for continuing to use a grand jury in Washington after the indictment in the Southern District of Florida, Mr. Woodward argued more than once that Mr. Nauta had cooperated in Washington and had no inkling he was to be charged in “a faraway jurisdiction” in Florida until he received the target letter.
Judge Cannon, calm throughout the arguments, asked why the letter showed selective and vindictive prosecution, and what he believed prosecutors should have done before sending the letter.
Mr. Woodward argued the prosecutors led Mr. Nauta to believe they were going to call him as a witness, and that was a “colorable claim” of selective and vindictive prosecution.
‘High Bar’ for Trump Codefendant
Stanley Woodward, attorney for Mr. Nauta, acknowledged that the defense had a “high bar” to reach in showing selective and vindictive prosecution such that it warrants dismissal of the case pre-trial, as these motions are seldom granted.
Mr. Woodward argued that Mr. Nauta was being punished for “when he exercised his rights” to the Fifth Amendment in declining to testify before a federal grand jury after having given a voluntary interview to the FBI, testified before a grand jury once, and turned over two phones pursuant to search warrants.
“You can’t bring charges to punish the defendant for an exercise of constitutional rights,” Mr. Woodward said.
“There’s more than some evidence for selective and vindictive prosecution,” he added.
Mr. Woodward became heated when he argued that Mr. Nauta was charged on “circumstantial evidence”—his proximity to the boxes of documents.
What to Know
U.S. District Judge Aileen Cannon is presiding over back-to-back hearings on motions to dismiss special counsel Jack Smith’s case against former President Donald Trump and codefendants Walt Nauta and Carlos De Oliveira.
Mr. Nauta’s attorneys will argue that the case should be dismissed based on selective and vindictive prosecution.
Judge Cannon will then hear arguments from all defendants to dismiss the case on insufficient pleading.
The case was originally set to go to trial May 20, but the trial has been postponed indefinitely as myriad issues regarding classified information remain unresolved, and the judge still needs to rule on eight substantive motions.
From The Epoch Times