Judge Aileen Cannon has ruled in the Southern District of Florida on the special counsel’s request to hold Garcia hearings on potential conflicts of interest for the lawyers of Donald Trump’s two co-defendants – Walt Nauta and Carlos De Oliveira — in the sensitive documents case. (See docket on the PACER — Public Access to Court Electronic Records — site.)
The meat of the special counsel’s request is based on the Sixth Amendment, which guarantees a criminal defendant the right “to have the Assistance of Counsel for his defense.” That includes a right to the counsel of the defendant’s choosing. (The counsel may be chosen despite having a conflict of interest in representing other parties, but only if the defendant knowingly waives the right to an attorney without a conflict — a Garcia hearing examines potential conflicts and aids transparency.)
Former U.S. Attorney and legal commentator Joyce Vance says that while Judge Cannon has agreed to the hearing, she “does not agree to have independent counsel available for the defendants, or even to have the other witnesses represented by their lawyers at the hearing—they too have conflicts they will need to decide whether to waive or not if they are still represented by the lawyers for Nauta and De Oliveira.”
6/The Judge scheduled Garcia hearings on 10/12 but didn't give the full hearing the gov't asked for. Her denial of parts of the request was "w/out prejudice" meaning she can reconsider. But there's no explanation of her denial-it's just a minute order on the docket. pic.twitter.com/1YDJ4wBCak— Joyce Alene (@JoyceWhiteVance) September 26, 2023
In addition, Judge Cannon indicated that the hearing will be closed to the public. Cannon could “change her mind,” Vance says, but the decision is “weak sauce following the extensive briefing and the clear law in this area.”
Vance says the “bare-bones approach” shows a judge who “does not appear to be on track to have the sort of fulsome proceeding that is both required by law and routine in these situations.”
The judge, Vance asserts, has “parted company with the obvious steps like obtaining independent counsel” for now and is making the public wait for her reasoning — her opinion will come after the hearing — a problem, Vance says, because “the government and we the people are entitled to her reasoning.”
Vance speculates on a worst case scenario for the prosecution that could result from the judge’s decision now on the potential conflict, writing: “A failure by the judge to protect a defendant’s Sixth Amendment right to counsel at this stage in proceedings can be fatal to any conviction the prosecution obtains on appeal.” The hearings are scheduled for October 12.