What is Judge Cannon Doing?

On September 25, 2023, Judge Cannon issued an order in response to Smith’s motions for a so-called “Garcia hearing.” Smith had requested the hearing to deal with potential attorney conflicts.

Cannon’s order required Smith’s team to “ be prepared to articulate the nature and scope of the potential conflicts identified.” Prosecutor David Harbach from Smith’s team, did just that.

But, according to Politico, when Harbach raised fresh objections at the hearing yesterday (October 12) over whether Woodward should be allowed to question a key witness in the case, Woodward told the judge that the prosecutors should have raised their arguments in court filings ahead of the hearing so he could discuss them with his client — and the judge went off the rails.

What happened?

A so-called “Garcia Hearing” in Florida (under U.S. v. Garcia, 517 F.2d 272 (5th Cir. 1975)) provides that, in the case of a potential attorney conflict of interest, the court should conduct an inquiry to determine whether a defendant wishes to waive the conflict.

Where an attorney represents more than one defendant, conflicts of interest may arise. In the Mar-a-Lago case against Trump and his co-defendants, Special Counsel Jack Smith’s team had asked for hearings to ensure that co-defendant Waltine Nauta were aware of potential conflicts because his lawyer, Stanley Woodward, has represented at least seven other witnesses in related cases. Smith subsequently filed a separate motion asking for a hearing for De Oliveira, who has been represented by John Irving, an attorney who is also representing three others whom the DOJ may seek to call as witnesses in the trial.

(For a convenient linked list of all filings in the case, see here.)

According to Ben Meiselas, a trial attorney on Meidastouch Network (citing to a Twitter/X post from Hugo Lowell, a reporter for the Guardian), Judge Cannon got furious, saying that the prosecutors “had suggested an absolute bar at the last minute” that they had not cited to any case law, they had wasted the court’s time. She then shut down the hearing.

Lowell posted: “Conflicts hearing for Trump valet Walt Nauta’s lawyer Stanley Woodward in classified docs case has been POSTPONED and judge admonished prosecutors after they suggested Woodward should be precluded from making summation to a jury based on his prior defense of a trial witness.”

ABC News reported that when the prosecutor said Woodward should be foreclosed from cross-examining another witness he previously represented and that Nauta should be advised of the potential conflict of interest issues, Judge Cannon said “Advising him is different than a request for a cross-examination ban.”

The judge continued that the government’s “failure to raise” the scope of what they are seeking “makes it difficult for the court and the parties to resolve” the issues “on the fly,” saying the issues they raised require a “full discussion” after both parties have had an opportunity to properly examine the issue.

However, Smith’s motion actually did raise both issues. Smith wrote:

“Potential conflicts of interest arise from Mr. Woodward’s prior representation of Trump Employee 4 and his current representation of Witness 1 and Witness 2. All three of these witnesses may be witnesses for the Government at trial, raising the possibility that Mr. Woodward might be in the position of cross-examining past or current clients. These potential conflicts warrant a Garcia hearing.”

On page 7, he writes: “Nauta should be thoroughly advised of the potential conflicts and attendant risks,” noting that two other witnesses Woodward represents should also be present at the hearing and should be “apprised of the risk that Mr. Woodward may use or disclose confidences he obtained from them.”

As for Cannon claiming that the prosecutor had no case law, even a cursory glance at Smith’s motion shows how wrong Cannon is about that. But even without that, as Meiselas pointed out, “It’s a Garcia hearing! That’s the case! And its progeny that interpret it!” (Approximately 10:45–11:30 minutes into the video.)

It would seem that Judge Cannon is merely trying to delay and delay any forward movement of Trump’s classified documents case. She hasn’t issued any orders or made any rulings that could be appealed (either now or later). She simply avoids getting anything done at all.

The only solutions I can think of would be either for Jack Smith to move for Cannon to recuse herself OR for him to file a petition to the 11th Circuit for a writ of mandamus, mandating that Cannon do her duty and get on with proceedings.

(This latter solution was mentioned by Roger Parloff of Lawfare on an October 12 Lawfare Live broadcast here, at about 1:11 minutes in, in answer to a viewer question as to whether Cannon’s ruling can be appealed.)

Requesting a recusal is tricky because, first of all, the Supreme Court has held (United States v. Smith, 775 F.3d 879 (7th Cir. 2015)) that matters arising out of the course of judicial proceedings — either in the present case or in a prior case — are not a proper basis for recusal.

Federal recusal is governed by 29 CFR § 2200.68, which requires that a judge shall recuse herself under circumstances that would require disqualification of a federal judge under Canon 3(C) of the Code of Conduct for United States Judges. Although Canon 3(C) cites situations where a judge’s “impartiality might reasonably be questioned,” it then provides a list of concrete situations.

In any case, Cannon herself gets to decide and if she says no, Smith risks further alienating the judge.

As for mandamus, writs of mandamus may be used when a party to a suit wants to appeal a judge’s decision but is blocked by rules against interlocutory appeals (appeals that may be made before the final verdict).

According to the DOJ: “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”

Under federal rules of appellate procedure, a petition for a writ of mandamus must establish the relief sought, the issues presented, the facts necessary to understand the issue presented by the petition, and the reasons why the writ should issue. The petitioner must have no other relief available.

So, Jack Smith’s options are limited at this point. We can be sure of two things only: that Smith will continue to establish a solid record and make his case and that Judge Cannon will continue to try to foil his attempts.

A judge who repeatedly and continually declines to do her duty and violates the judicial code of conduct is, we hope, not likely to remain in her position for long.

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