Attorney David Harbach with the special counsel’s office threw out a new argument during the two Garcia hearings scheduled Thursday, drawing ire from the judge for “wasting the court’s time” by not filing the arguments and case citations the motions the government had already submitted.
Mar-a-Lago property manager Carlos De Oliveira and butler Waltine Nauta were charged alongside former President Donald Trump for allegedly mishandling classified documents, and on Oct. 12, the government argued that their attorneys had conflicts of interest and could not properly represent them. The purpose of a Garcia hearing is so the defendants are clear about any potential conflicts of interest and their ramifications. The hearings for Mr. De Oliveira and Mr. Nauta were held back to back.
Mr. Harbach had argued there was an ethical issue with the defendants’ legal counsel, and that they should not be able to call into question their former clients’ credibility and characters on the witness stand. The roundabout arguments ended up frustrating the judge, and Mr. Nauta’s hearing was ultimately postponed.
Carlos De Oliveira
Mr. De Oliveira is represented by John Irving and local attorney Larry Murrell.
The prosecution argued that Mr. Irving previously represented three potential witnesses only identified as Trump Employee 3, Witness 1, and Witness 2, and though he no longer represents them, attorney-client privilege would still apply, and he would not be able to make use of confidential information regarding his former clients. Mr. Irving stopped representing the three clients on Aug. 30, and said there was nothing he knew that the government didn’t already know, and no issue of confidentiality would be a problem in the case.
Mr. Harbach appeared to cast doubt on the claim, saying “we don’t know what we don’t know.”
Judge Aileen Cannon, presiding over the case, repeatedly asked Mr. De Oliveira if he understood the arguments, and the impact of retaining his attorney, and the possibility that his lawyer may not represent him as “vigorously” as he is supposed to. Mr. De Oliveira, who speaks with a thick Portuguese accent, answered affirmatively each time.
When Mr. Harbach pointed out that this meant Mr. Irving would not be able to call the character or credibility of his three former clients into question during cross-examinations, his argument did not go smoothly. He tripped over his words as he presented the new argument, which was shut down by the defense.
Mr. Irving made clear that he did not concede to the special counsel’s proposed “ethical prohibitions,” and argued that he should not “be precluded to talk to the jury about any witness.”
Mr. Irving also said that Mr. De Oliveira’s local counsel, Mr. Murrell, would be able to cross-examine those three witnesses if necessary, and Mr. De Oliveira accepted this.
After explaining to Mr. De Oliveira that his acceptance, and his waiving of any conflict in his legal representation, would mean he would lose attorney-conflict arguments as an appeal later down the line, Mr. De Oliveira elected to keep his lawyer.
Mr. Nauta is represented by Stanley Woodward, who previously represented the Trump Employee 4 the government claimed “flipped” to become a key witness.
Mr. Woodward’s law firm still represents Witness 1 and Witness 2, though during Mr. Nauta’s hearing Mr. Harbach said they no longer planned to call Witness 2 to testify.
When Mr. Harbach made the new argument during the second Garcia hearing, saying the lawyer would not be able to stand up and attack a witness’s credibility and character in defense of his client, the defense immediately seized upon it, stalling the proceeding.
Mr. Woodward refused to waive his right to call any witness’s character or credibility into question. He gave the hypothetical example of Trump Employee 4 having a stroke just before he was to testify—was he to not touch upon his medical condition and credibility if the court ordered such a prohibition?
Mr. Woodward said that “filling the sky with hypotheticals to presume” that he was unable to properly cross-examine the witnesses to defend his clients was “wrong.”
Mr. Harbach received little backup from the judge over his argument about issues of loyalty and confidentiality; Judge Cannon criticized him for citing three cases outside the 11th Circuit that couldn’t be used properly as parallels, but noted that Mr. Nauta should be aware of this. She expressed frustration and said it wasn’t clear whether Mr. Harbach was asking the court to prohibit the attorneys questioning former or current clients.
The three cases the government mentioned were United States v. Yannotti, United States v. Spataro, and United States v. Rahman, which were all prosecuted in New York.
Mr. Woodward requested more time as he said that Thursday was the first time he heard such an argument and could now not properly advise Mr. Nauta on his 6th Amendment rights meant to be highlighted by the Garcia hearing.
No new hearing date has been scheduled.