Unwrapping Unethical Behavior: The Special Counsel’s Precarious Game

by SHIPWRECKEDCREW

“They’re not representing the Department of Justice any longer — they represent the “Department of Just Us.”

DC Attorney Stanley Woodward — that’s not him in the picture above — has represented several people who have appeared as witnesses subpoenaed by the Special Counsel’s Office before the grand jury in Washington DC investigating all matters involving former President Trump. He’s done that because he’s a damn fine lawyer and is in demand in Washington DC. I’ve seen a lot of shitty lawyering in DC — to my surprise — but Stanley is not among that group. I sat next to him for 6 weeks in trial back in Feb-Mar.

He represents Walt Nauta who was indicted in the FL case along with former Pres. Trump. Woodward also represented “Employee 4” (E4) in the investigation, who also testified before the DC grand jury. The SCO took the view that E4 lied in the GJ to benefit Trump and Nauta while represented by Woodward, and that E4 needed to have separate legal advice about his situation.

The Special Counsel did nothing to dispel the insinuation that was suggested by its efforts — it wanted the public to come away with the impression that Woodward had played a role in getting E4 to lie in order to benefit Nauta and Trump. The effort was transparent “character assassination” of a defense attorney they do not want to continue in the case.

So how did this little ‘Kabuki Theater” orchestrated by the SCO play out?

On 8/2 the SCO asked for a “Garcia Hearing” in FL. That’s a hearing where the Judge questions the defendant — Nauta in this case — about his understanding that his attorney has represented others connected to the case in situations where there might be a conflict of interest develop later if the case proceeds to trial. The purpose of the hearing is to have the defendant say “Yes” or “No” regarding his understanding, then have the defendant waive the conflict if he wants to keep his attorney. You have a constitutional right to an attorney without conflicts. But as with all constitutional rights, a defendant can — for the most part — waive his right to conflict-free counsel so long as he does so “knowingly and intelligently” — just as you can waive your right to a jury trial. A Garcia hearing is the proceeding where the Judge makes the decision to accept the Defendant’s waiver of conflict-free counsel and keep his attorney.

It is NOT a hearing to get the defense attorney disqualified or attempt to assign blame or responsibility for the conflicts that have developed.

Before filing that motion, the Special Counsel had asked for a hearing in the DC Court about E4 because the grand jury testimony had taken place before a DC grand jury. The Special Counsel wanted to Court in DC to address whether E4 understood that Woodward might have a conflict of interest by representing Nauta — who had been charged at that point. The Govt filed a motion and Woodward filed a response as E4’s attorney. There was a hearing.

All these records were sealed by order of the Court — they are not available to the public.

But one key to understanding what happened next is that E4 and Woodward ere not a “parties” in the DC proceeding about Woodward’s possible conflcits– E4 was only a “witness.”

IT WAS AGREED BY BOTH SIDES — INCLUDING WOODWARD — that E4 needed to consult with “conflict counsel” to discuss his situation with regard to Woodward representing him and Nauta at the same time. The Judge in DC appointed the First Assistant Federal Defender in DC to serve as “conflict counsel” to advise E4. After that consultation, E4 decided to have the 1st Assistant takeover as his attorney — which was his right. The SCO now claims that E4 changed his testimony following that switch and SUGGESTS without any evidence that Woodward was somehow involved in persuading E4 to initially lie to the GJ.

What happened next is a little duplicity by the SCO designed to mischaracterize what happened in DC in order to attack the integrity of Attorney Woodward, but hide from everyone the fact that it was planning such an attack.

Because E4 was not a “party” in the DC case — which is captioned as an “In Re Grand jury” matter and then with a case filed number — applications/motoins by the Government and Orders from the Court are not sent to none-parties such as E4 or Woodward by the Court’s Electronic Case Filing (ECF) system. Those filings are also not available to the public because the file is sealed as it concerns matters regarding grand jury testimony and the management of the grand jury process by the Judge.

As noted above, the Special Counsel filed a motion for a Garcia hearing on 8/2.

The proceedings re E4 and his change in counsel had taken place back in DC the first week of July, after E4 had testified before the DC grand jury.

On July 30 — four days before asking for the Garcia hearing — the SCO had filed an “ex parte” application with the Judge in DC for permission to use in the FL case the “In Re Grand Jury” materials under seal, and information from the hearing on E4’s representation.

“Ex Parte” means the Special Counsel did this without informing anyone — but that is not surprising because there is no other “party” in an “In Re Grand Jury” matter that concerns only a witness.

The Judge in DC granted the motion — but did so under seal in that case file, so no one other than the SCO and the Judge were aware he had given that permission, and so far as I can ascertain right now, only the Judge and the SCO know exactly what it was that he approved in that regard.

In the 8/2 Motion for a Garcia hearing, the Special Counsel noted that it was providing information to the FL Court regarding the DC proceedings in a “sealed supplement.”

This was consistent with the Ex Parte motion made in DC where the SCO advised the DC Judge that it

… initially intends to include such information [under seal in DC] only in a sealed supplement to its motion for a Garcia hearing.”

Take note of the qualifier “initially.”

But the motion in DC went on:

“But to ensure that it does not need to return to Court for further disclosures, the government also seeks authorization to disclose information related to the conflicts hearing more broadly in the FL case, as the need arises, including in briefing and in-court statements related to the Garcia hearing.”

On July 31, the DC Judge granted the SCO’s motion.

I suspect there is going to be some interesting litigation coming up over just what it was the DC Judge authorized — his precise language — and just what it was the DC Judge thought the SCO was asking to be allowed to do in that Ex Parte motion. The SCO did disclose Rule 6(e) material last week — we’ll get to that in a minute. The question now is whether the disclosure of that material and the content of sealed proceedings in DC to the PUBLIC in a PUBLIC FILING, was authorized by the motion it filed Ex Parte. Did the DC Judge anticipate, based on what the Special Counsel asked for, that he was — for all practical purposes — unsealing the entire file for public disclosure but leaving it to the Special Counsel to decide what information to disclose and when?

Back to the sequence of events — after the Govt filed for a Garcia hearing in the FL case on 8/2, and included the sealed supplement involving the DC proceedings, the FL judge struck the sealed supplement from the docket, raising the issue of the propriety of continuing to hear testimony concerning the FL case using a DC grand jury after the case had been indicted by a grand jury in FL. She also ordered Woodward to file a response to the motion for Garcia hearing on 8/17.

Woodward did that not knowing that the DC Judge had authorized use by the SCO of material from the sealed proceedings — he only knew that the SCO had attempted to submit some of that material “under seal” but that the FL judge had not allowed it to do so.

What happened next is where the controversy starts: The Special Counsel filed a Reply regarding the Garcia hearing on 8/22. That Reply quoted several written passages from Attorney Woodward’s “Response” filed in the DC “In Re GJ” matter – which was filed under seal in DC and which is still listed on the docket of that case as “Sealed.”

The Reply quoted the passages out-of-context and it omitted a significant body of material that led to the complete opposite viewpoint than the one stated by the Special Counsel in what was clearly intended as a “hit piece” on Attorney Woodward.

Remember — the Garcia hearing is about whether Defendant Nauta in the FL case knows of and understands any potential conflict that might exist for his attorney. It is NOT about the issues concerning Woodward’s representation of E4 that ultimately led E4 to be represented by other counsel. That was E4’s choice — he had the right to have conflict-free counsel, and when that was explained to him by the DC Judge and the “conflict counsel” he exercised that right.

That is NOT a reflection on the representation provided by Woodward up to that point — something that the DC Judge said ON THE RECORD IN THE HEARING IN FRONT OF THE SPECIAL COUNSEL.

The authorization to disclose the material from the DC proceedings included permission — according to the Special Counsel — to use the transcripts from the hearing.

Has anyone seen the Special Counsel mention that fact anywhere? Has anyone seen any of the comments by the DC Judge during that hearing?

After filing the Reply that included quotes from Woodward’s response in the DC matter — seemingly still under seal — I called it out on X/Twitter that the Special Counsel had quoted from material filed in a sealed case in DC, seemingly in violation of that Court’s order.

I should have known better — such a blatant violation would have been impossible for the Special Counsel to not appreciate before including those quoted comments. There is no way any experienced federal prosecutor would have done so intentionally, knowing the hellfire that would soon rain-down on them from a very pissed-off federal judge whose sealing order had been ignored.

And as it turned out, it wasn’t inadvertent or incompetent – it was by design.

The SCO had sought “permission” — before filing the Garcia motion — to use material in the sealed proceedings, and it had attempted to do so in filing the sealed supplement just as it said it would.

But then it was frustrated by the FL judge who asked for an explanation as to why the Special Counsel was continuing to investigate the FLORIDA VENUED CASE with a grand jury in DC before she would take into consideration the proceedings in DC.

So SCO employed a different tactic — it simply dumped the information into its Reply regarding the Garcia motion without telling anyone — including attorney Woodward or the FL court that it intended to do so. The material was in the public domain before anyone had a chance to consider whether that was appropriate.

An ethical prosecutor would have communicated to Woodward and E4’s new attorney that it had sought and received permission from the DC Judge to use material from the DJ grand jury conflict proceedings involving E4, and that it was going to include some of that material in the Reply. That would have given Woodward the opportunity to ask the DC Judge to revisit the issue of disclosure since he had no opportunity to do so during the ex parte process, and maybe seek some limits/conditions on how the DC material could be used.

But that would have alerted Woodward to the SCO’s intention to use the material — and might have compromised their goal to use the material as part of filing amounting to “character assassination” of Woodward by making only selected references, mischaracterizing the proceedings in DC, and the outcome.

So they followed the age-old Maxim of unscrupulous and unethical prosecutors — act first and apologize later.

But all of this is against the backdrop of two other points of contention between the Special Counsel prosecutors and Woodward.

Remember that it is Stanley Woodward who filed a complaint — that was supposed to remain confidential — with the DC Court regarding inappropriate comments made to him by SCO member Jay Bratt, wherein Bratt seemed to suggest that there might be some “connection” between how Woodward advised his clients who were witnesses in the Trump investigation, a pending application by Woodward to be named as a Judge in the DC Superior Court.

Jay Bratt remains part of the SCO, and that complaint remains pending.

I’m going to make a prediction here for how this might unfold in the days ahead IF Stanley Woodward decides to pursue this issue.

My prediction is that Stanley Woodward enjoys a better reputation among the Judges in the District of Columbia than does Special Counsel Jack Smith, and it is going to play out that Stanley Woodward’s reputation is going to be vindicated in this affair while the Special Counsel comes under some criticism — AGAIN — for “sharp practices.”

Remember, it was this same group of Special Counsel attorneys who kept the same Stanley Woodward delayed in another Grand Jury session — waiting outside while his client was inside testifying — and caused Woodward to be 30 minutes late to the Courtroom of DC Judge McFadden where the Judge, staff, prosecutors, and other defense counsel and clients were waiting to hear Judge McFadden’s verdicts from a bench trial earlier in July.

These same Special Counsel attorneys KNEW Woodward had to be at that hearing at a specific time, and agreed in advance that they would take a break in the GJ session in order for Woodward to timely appear at that hearing. But when it came time for the break, they BROKE THEIR WORD and told Woodward they were going to continue the GJ session, putting Woodward to the choice of having to remain with his client while the testimony continued — and be late to the hearing with Judge McFadden — or leave his client unattended, and without legal advice in order to make it to the hearing for the reading of verdicts.

Judge McFadden was livid when Woodward came in 30 minutes late.

But he was livid at the Special Counsel prosecutors when he found out the full story.

The Special Counsel prosecutors are playing with fire.

They’re not representing the Department of Justice any longer — they represent the “Department of Just Us.”

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