Federal prosecutors in former President Donald Trump’s classified document case have asked a federal judge to inquire whether a lawyer for co-defendant Carlos De Oliveira, a Mar-a-Lago employee, has a conflict of interest because he represents three potential government witnesses.
In a filing posted late Wednesday, government lawyers working for special counsel Jack Smith have asked U.S. District Judge Aileen Cannon to hold a hearing over Washington, D.C.-based attorney John Irving’s representation of both De Oliveira and “three individuals the government may call to testify as witnesses at trial.”
The filing does not involve De Oliveira’s recently retained West Palm Beach criminal defense lawyer, Larry Donald “Donnie” Murrell Jr.
The prosecutors’ concern, the filing says, centers on the possibility that Irving might end up cross-examining one of those clients, an action that “inherently encounters divided loyalties.”
The prosecutors said that while they are not seeking “any specific remedy at this time,” they do believe that the court should be informed of any potential conflict “so that it may conduct an appropriate inquiry.”
A hearing, they said, would allow Irving’s other clients, who are not identified by name in the filing, to be informed of the “potential risks” they might face while Irving represents them. The government also suggested that the judge might want “to procure independent counsel to be present at the hearings” to provide advice to those clients if they sought it.
The prosecutors said they advised Irving of the Wednesday filing and said he does not oppose a hearing. But at the same time, the government lawyers reported that Irving called such a hearing “premature” since it is nine months before trial and the three potential witnesses he represents “do not need to attend the hearing.”
Cannon has set a trial date of May 20, 2024.
De Oliveira, 56, emerged as a co-defendant late last month when he was named in a 42-count superseding indictment against Trump and another Mar-a-Lago employee, Waltine Nauta, 40, a personal aide to the former president.
Trump faces charges of the unlawful retention of national defense information. All three men face obstruction-of-justice offenses and have entered not guilty pleas in court.
Charges against De Oliveira, according to the government, “relate to his movement of boxes with Nauta in June 2022; his and Nauta’s efforts — acting on behalf of Trump — to enlist the director of information technology for Mar-a-Lago (identified as Trump Employee 4 in the superseding indictment) to delete Mar-a-Lago security footage; and his false statements to the FBI in January 2023.”
According to the Wednesday filing, Irving represents not only De Oliveira, but “has also represented at least four other individuals who have been questioned in connection with the Government’s investigation.”
Those clients include three individuals — “referred to in court documents as Trump Employee 3, Witness 1, and Witness 2—that the Government has identified as potential witnesses at trial. To the Government’s knowledge, Mr. Irving continues to represent these three individuals.”
Growing potential conflicts
It’s the second time the government has raised questions about a Trump co-defendant being represented by a lawyer who counts as clients others who have been questioned by investigators.
In an earlier filing that also seeks a hearing over a potential conflict, prosecutors said Stanley Woodward Jr., a Washington lawyer who represents Nauta, has clients who are supported by Trump and have been questioned in the investigation.
Irving, according to the latest government filing, represents a receptionist, a Mar-a-Lago maintenance worker, and another Trump assistant.
One possible witness represented by Irving, according to the filing, could end up testifying about an alleged false statement De Oliveira made to investigators this past spring.
“When confronted with video footage appearing to show him photographing surveillance cameras in the tunnel at Mar-a-Lago near the storage room where the FBI recovered some of the classified records, De Oliveira claimed he was (1) looking for a shutoff valve because a water pipe had ruptured on the grounds of Mar-a-Lago, and (2) documenting a broken door below one of the cameras,” the government filing says.
“Witness 1 has information about when the pipe broke and the door needed repairs that is inconsistent with De Oliveira’s statements,” the filing asserts.
The same witness, the filing says, “also has information about De Oliveira’s loyalty to Trump.”
Ultimately, the government says, it is seeking three determinations from the judge:
- Whether and to what extent a conflict of interest arises from Irving’s concurrent representation of De Oliveira and the three witness-clients;
- Whether De Oliveira or the three witnesses wish to waive any conflicts and if they do, whether the waiver is knowing and voluntary;
- Whether the court will accept De Oliveira’s waiver.
Cannon has yet to decide whether a hearing concerning the Irving clients is necessary.
