Prosecutor Questions Lawyer’s Potential Conflict of Interest in Trump Documents Case

The prosecutor in the President Trump classified documents case asked for a hearing concerning the attorney for co-defendant Carlos De Oliveira—who also represents three possible witnesses in the case.

Carlos De Oliveira (C), a property manager for President Donald Trump's Mar-a-Lago estate, leaves the James Lawrence King Federal Justice Building with his lawyer John Irving trailing behind, in Miami, Fla., on July 31, 2023. Joe Raedle/Getty Images

The prosecutor in the Trump documents case has asked for a conflict of interest hearing concerning John S. Irving, the attorney for one of the co-defendants—who also represents three possible witnesses in the case.

The purpose of the hearing, known as a Garcia hearing, is to ensure that defendant Carlos De Oliveira understands the situation and the risks involved before agreeing to proceed.

“A Garcia hearing is appropriate given that an attorney who cross-examines a client inherently encounters divided loyalties,” Special Prosecutor Jack Smith wrote in the motion filed in federal court on Aug. 16.

The motion asks Judge Aileen Cannon to conduct a hearing to ensure that Mr. De Oliveira is aware of the potential conflict of interest and has the opportunity to consult an independent lawyer if he wishes.

Potential Conflict

Trump Employee 3 was employed as a personal aide to President Donald Trump along with co-defendant Waltine Nauta, according to the motion. Employee 3 allegedly communicated with Mr. De Oliveira about approaching another person, Trump Employee 4, about deleting security footage at Mar-a-Lago.

Witness 1 was employed as the head of maintenance at Mar-a-Lago before Mr. De Oliveira took that position in January 2022, according to the motion. He has information about false statements Mr. De Oliveira allegedly made to the FBI.

Witness 3 was a receptionist and assistant for President Trump both during and after he was in office and has information about the movement of storage boxes at Mar-a-Lago, according to the motion.

The prosecution asked for Mr. De Oliveira and the three witnesses to be present at the hearing.

One problem that could arise if Mr. Irving were to cross-examine these witnesses is the improper use or disclosure of confidential attorney-client conversations, according to Mr. Smith.

Another is that the attorney may “pull his punches” during cross-examination, either to protect one client’s confidentiality or to advance his own best interests, Mr. Smith said.

Range of Options

A Garcia hearing is named after a 1975 court case establishing that a defendant who is one of two or more defendants represented by the same attorney understands the potential for a conflict of interest in the attorney and that the defendant is entitled to be represented by an attorney who does not represent anyone else connected to the case.

The defendant can choose to sign a waiver and proceed with the original attorney, so long as he understands and accepts the risk of doing so.

Judges in such cases have several options, ranging from accepting the defendant’s waiver; to preventing the lawyer from participating in cross-examination; to dismissing the lawyer and assigning new attorneys to each party, according to human rights lawyer Irina Tsukerman.

Walt Nauta, a co-defendant in federal charges filed against President Donald Trump, leaves the James Lawrence King Federal Justice Building in Miami on July 6, 2023. Alon Skuy/Getty Images

“All of this should be done as early as possible in the process to avoid further problems,” Ms. Tsukerman told The Epoch Times. “If the lawyer ends up having to withdraw late in proceedings, this means that clients’ and the court’s time and resources were wasted.”

Mr. Smith did not ask that Ms. Cannon take a specific action, other than conducting the hearing.

Trial Date Set

President Trump and Mr. Nauta were indicted on June 8 in the U.S. District Court for the Southern District of Florida on 38 charges related to the alleged mishandling of classified documents stored at President Trump’s primary residence, Mar-a-Lago in Palm Beach, Florida.

Additional charges were later added, including attempting to “alter, destroy, mutilate, or conceal evidence.”

A charge under the Espionage Act was also added, related to President Trump’s alleged handling of a classified document at his golf resort in Bedminster, New Jersey.

Mr. De Oliveira was added as a defendant on July 27. All three defendants pleaded not guilty.

Judge Cannon set a trial date of May 20, 2024, an apparent compromise between the prosecution’s request for a December trial and the defense attorneys’ plea to delay the trial until after the November 2024 presidential election.

Mr. Irving could not be reached for comment. His law firm, E & W Law of Washington, did not respond to an inquiry from The Epoch Times by the time of publication.