At the classified documents hearing Tuesday, Walt Nauta’s defense team reportedly raised the prospect of splitting his case from co-defendant Donald Trump’s, with Nauta lawyer Stan Woodward saying he wanted to put off setting a trial date because he needs to review the evidence before advising his client on whether to sever.
But if Nauta becomes serious about severance — as opposed to just raising the issue as a means for delay — he may have a tough time accomplishing that task.
This is interesting from @AnnaBower (who I appreciate for her detailed reporting):
— Katie Phang (@KatiePhang) July 18, 2023
Nauta can move to sever his case from Trump. But, Woodward doesn’t need to review all of the discovery to know whether to do so. https://t.co/bjPOAxAyf8
That’s because courts favor trying co-defendants together, especially in conspiracy cases.
The Supreme Court has said severance should be granted only if there’s a “serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” The 11th U.S. Circuit Court of Appeals, which covers Florida, has said it’s “reluctant to reverse a district court’s refusal to sever, particularly in conspiracy cases.”
Nauta and Trump are charged with, among other things, conspiring to obstruct justice. Both defendants have pleaded not guilty to the indictment, which charges Trump with violating the Espionage Act and accuses both men of obstruction-related crimes.
In moving for severance, it’s not enough for a defendant to show they’d have better odds at their own trial. Rather, they need to show that being tried jointly is so prejudicial that it’s too unfair to allow.
More specifically, the 11th Circuit has identified situations that can prompt severance:
- when the defendants have mutually antagonistic defenses;
- when one defendant’s testimony would help the other but the defendant wouldn’t testify in a joint setting;
- when evidence against one defendant wouldn’t be admissible against the other; and
- when there’s “spillover” evidence against one defendant that could be unfair against the other.
But even when those situations arise, they don’t automatically require severance. To curtail any undue prejudice, trial judges remind juries they must consider each defendant’s guilt individually. And judges’ severance decisions are reviewed on appeal for abuse of discretion. As with much else, the trial judge’s power is vast (though not unlimited).
That vast power on all manner of trial decisions is what raised concerns with Judge Aileen Cannon’s being assigned to handle Trump’s prosecution, following her siding with Trump during his civil lawsuit over the Mar-a-Lago search last summer.
We’re still waiting to see what trial date Cannon sets. The Justice Department wants to start in December, while Trump and his aide, Nauta, are hoping to push it off while Trump runs for president again in 2024. On the flip side, MSNBC legal analyst and former DOJ prosecutor Andrew Weissmann has noted that the government could want to sever Nauta from Trump if Cannon delays setting a date. The next move on this front could depend on the date Cannon sets. Jack Smith strategy: if Cannon delays setting a trial date, will he move to sever Nauta and seek to go to trial quickly on him, since his charges are far simpler. Normally you don't try a lesser defendant first, but here it would permit the jury and public to see some evidence.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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