Judge Cannon asked Mr. Bratt why charges used the term "knowingly, corruptly," stacking two states of mind on top of each other.
Mr. Bratt offered, as an English major, the interpretation that "knowingly" modified the term "corruptly."
Judge Cannon said there was a "potpourri" of criticisms about the indictment, and Mr. Bratt agreed there was information that should not have been included but maintained there was nothing wrong with it.
Mr. Bratt argued that all of Mr. Woodward's arguments were ones that could be made to a jury, not warranting pretrial dismissal of the indictment.
Mr. Woodward argued count 39 had elements of the alleged offense that were "unclear on its face."
He argued that counts 40, which charges all defendants with "altering, destroying, mutilating, or concealing an object," and 41, which charges all defendants with "corruptly altering, destroying, mutilating, or concealing a document, record, or other object," similar to count 38 have no criminal acts alleged.
Count 39 charges Mr. Nauta with "false statements and representations" for what he said during a voluntary interview with the FBI.
Mr. Nauta said he did not know where allegedly missing boxes were and that he did not know how boxes given to NARA had been moved to Pine Hall.
Mr. Bratt argued that counts 34 through 37 address the same underlying conduct, but they are separate counts because the DOJ cites different criminal statutes.
Judge Cannon seemed annoyed with Mr. Bratt a few times as he did not give direct answers to her targeted questions, but the judge ultimately accepted his point.
Counts 35 charges President Trump and Mr. Nauta with "corruptly concealing a document or record." Count 37 charges the two defendants with "scheme to conceal."
Mr. Woodward said there were several deficiencies for both counts, because they don't show that Mr. Nauta knew what he was inside the boxes he was moving, and don't let the defendant know what crimes he committed based on how the counts are listed.
Mr. Woodward said the indictment was confused and "unnecessarily complicate" him having sufficient notice as to what crimes were committed. He said a reasonable person could not look at the actions listed in the indictment and understand what is allegedly criminal at face value.
"On its face, the indictment is confusing and prejudicial to Mr. Nauta," Mr. Woodward argued.
He said the indictment alleges president Trump was trying to persuade an attorney to hide and conceal documents from a federal grand jury and doesn't explain why Mr. Nauta is named in the same charge.
"Mr. Nauta is not sufficiently put on notice how he is criminally liable" for the alleged conduct, Mr. Woodward argued.
Judge Cannon asked prosecutors to explain the legal theory behind including two defendants for different acts in counts 34 and 36.
Mr. Bratt argued the indictment was "structured entirely correctly."
He argued that Mr. Nauta was also liable for actions President Trump took on his own because they were part of the same conspiracy and actions "reasonably foreseeable" as within the scope of that conspiracy.
Count 33 charges all three defendants with "conspiracy to obstruct justice."
The indictment outlines a timeline of events wherein President Trump allegedly misled his attorney to provide the FBI with a false statement of certification that President Trump did not have the documents called for by a subpoena, and suggested the attorney hide or destroy these documents.
Mr. Woodward argued that the attorney had every reason to believe what they said in the certification statement was true, and that President Trump did not in fact have those documents.
Mr. Woodward is also arguing the second motion, with counsel for codefendants Carlos De Oliveira and President Trump present.
He argued counts 34 and 36 should be dismissed for duplicity.
Count 34 charges both President Trump and Mr. Nauta with "withholding a document or record," alleging they knowingly engaged in misleading conduct with intent to cause another person to withhold a record, document, or other object from an official proceedings.
Judge Cannon commenced the afternoon hearing.
Before they argued on the motion from all defendants to dismiss the case on insufficient pleading, the judge said she had reviewed the search warrant prosecutors delivered in November 2022, which Mr. Woodward said did not include an obstruction charge.
Mr. Woodward, in his rebuttal, said that despite the prosecutors' denials, the timeline had not changed: Mr. Nauta was asked to cooperate, he was threatened with prosecution for perjury, he declined to testify a second time, and then was charged with obstruction.
Mr. Woodward said he would have handled negotiations differently had he been notified of an obstruction charge.
Mr. Harbach said prosecutors had presented a cell phone search warrant to the defense in November 2022 that cited an obstruction charge, and Mr. Woodward said the original copy did not include that citation, but a copy of the document later produced in discovery did have the addition of that citation.
Mr. Harbach argued that Mr. Nauta was not in a comparable situation to the unindicted employees of President Trump.
"The only people that are remotely comparable to him are his codefendants," Mr. Harbach said. "There is no one who not only obstructed justice, lied to the grand jury about it, lied to agents about it" and also allegedly "surreptitiously moved boxes" and tried to get surveillance video documenting the move deleted.
Mr. Harbach argued that there was no evidence of animus or selective and vindictive prosecution against Mr. Nauta, and therefore he was not entitled to discovery on this matter.
Judge Cannon asked why a grand juries were empaneled outside of the district where charges were brought.
Mr. Harbach said he was not prepared to comment on why charges were brought in Florida instead of Washington, but "not anything remotely untoward" occurred.
Mr. Harbach denied there was any attempt to "bribe and intimidate" Mr. Woodward by Mr. Bratt.
Mr. Harbach, wiggling his fingers to the right, emphasized the differing versions of Mr. Woodward's conversation with Mr. Bratt, in one account saying Mr. Bratt was "dangling" an offer to help boost his chances at a judgeship, but in other instances alleging Mr. Bratt was "threatening" the potential judgeship.
"Neither one of those things happened," Mr. Harbach said.
Mr. Harbach brought up the "Trump attorney" comment and Judge Cannon interrupted him with a question.
Mr. Bratt was alleged to have told Mr. Woodward he didn't believe he was a "Trump lawyer" or "Trump guy" and could be counted on to do the right thing.
Mr. Harbach got heated when he called Mr. Woodward's anecdote about his exchange with Mr. Bratt "an absolute fantasy" and claimed what Mr. Woodward was implying "did not happen."
Mr. Bratt was sitting in the courtroom, but did not argue or address the anecdote himself.
Mr. Harbach argued that the obstruction charge came when it did because the prosecutors had by then obtained video evidence of Mr. Nauta moving boxes at Mar-a-Lago, and not because of the narrative of cooperation Mr. Woodward presented. He argued the timing of the target letter was not evidence of causation.
Mr. Harbach said Mr. Nauta had come "nowhere close" to proving selective and vindictive prosecution, and stated he was not being punished for exercising his right to not testify.
Prosecuting attorney David Harbach was visibly frustrated throughout the exchange between the judge and the defense.
"It was difficult to sit through," Mr. Harbach commented, before arguing that the prosecutors abide by department rules and doctrines and denied any misconduct.
Mr. Harbach argued that Mr. Nauta had presented a claim of actual vindictiveness in his court filings, but this morning Mr. Woodward had argued about a "presumption" of vindictiveness, bring up issues that were not in the motion.
Mr. Woodward argued that others in situations similar to Mr. Nauta had not faced prosecution, one of the requirements in establishing selective and vindictive prosecution.
He pointed to a ghostwriter for President Joe Biden, Mark Zwonitzer, who had deleted recordings that contained sensitive information after learning about special counsel Robert Hur's investigation. Mr. Zwonitzer has not been charged. An employee deleted emails for Hillary Clinton amid a federal investigation, and also was not charged.
Mr. Woodward also argued that other Mar-a-Lago employees were not indicted, but Judge Cannon pointed out the prosecutors had accounted for why they did not pursue charges for the unnamed employees in the indictment.
Mr. Woodward asked the judge to order prosecutors to hand over materials gathered through the grand jury empaneled in Washington, arguing that she was also flying blind without access to these proceedings.
Mr. Woodward argued the court had "one hand tied behind her back" as Judge Cannon is still, like Mr. Woodward, unaware of what led to these charges. He added that these include ex-parte talks a lawyer for codefendant President Trump had with prosecutors.
He had made such discovery requests himself, and was told by prosecutors they had already given him everything he was entitled to.
Mr. Woodward brought up claims he has made of prosecutorial misconduct in dealing him both him and his client.
Mr. Woodward has stated in multiple court filings that prosecutor Jay Bratt, Chief of the Counterintelligence and Export Control Section and part of the special counsel's team, had told Mr. Woodward he "wouldn't want to do anything to mess up" a potential judgeship and nomination by President Joe Biden he was being considered for, making a comment that he was "not a Trump lawyer" and implying he should influence his client to cooperate.
Mr. Woodward said during the hearing that he had not brought it up when it occurred because "I'm a big boy, and I can take," but this "rose to the level of misconduct" when his client was indicted for obstruction when he declined to do a second interview before a grand jury in Washington.
Mr. Woodward argued they were "capital C cooperating" with the prosecutors when Mr. Nauta was hit with a target letter that included an obstruction charge.
He argued the special counsel had "sought to prosecute any way they could" in retaliation for Mr. Nauta's refusal to testify against President Trump in the unprecedented prosecution of a former president, and there had been a "campaign" to secure Mr. Nauta's cooperation.
Mr. Woodward requested an evidentiary hearing for the motion.
Mr. Woodward argued that Mr. Nauta had been led to believe he was being looked at as a witness in the D.C. District, where Mr. Nauta had testified before a grand jury.
Perhaps referencing Judge Cannon's reprimand of the special counsel for continuing to use a grand jury in Washington after the indictment in the Southern District of Florida, Mr. Woodward argued more than once that Mr. Nauta had cooperated in Washington and had no inkling he was to be charged in "a faraway jurisdiction" in Florida until he received the target letter.
Stanley Woodward, attorney for Mr. Nauta, acknowledged that the defense had a "high bar" to reach in showing selective and vindictive prosecution such that it warrants dismissal of the case pre-trial, as these motions are seldom granted.
Mr. Woodward argued that Mr. Nauta was being punished for "when he exercised his rights" to the Fifth Amendment in declining to testify before a federal grand jury after having given a voluntary interview to the FBI, testified before a grand jury once, and turned over two phones pursuant to search warrants.
This resulted in an obstruction charge.
U.S. District Judge Aileen Cannon is presiding over back-to-back hearings on motions to dismiss special counsel Jack Smith's case against former President Donald Trump and codefendants Walt Nauta and Carlos De Oliveira.
Mr. Nauta’s attorneys will argue that the case should be dismissed based on selective and vindictive prosecution.
Judge Cannon will then hear arguments from all defendants to dismiss the case on insufficient pleading.
FORT PIERCE, Fla.—After the prosecution and defense rested their cases in former President Donald Trump’s trial in Manhattan, his attorneys and those of co-defendant Walt Nauta will appear in southeast Florida on May 22 to argue for the dismissal of his classified documents case.
U.S. District Judge Aileen Cannon will preside over back-to-back hearings that consider multiple motions to dismiss the case.