Dear Reader,

Walt Nauta has taken his place among the great “other guys” in our culture and history. He’s now up there with the likes of John Oates and Robin, Scottie Pippen and Cameron Frye, Sammy Gravano and Chewbacca. All of them received second-billing to a more powerful, more charismatic, more boldface alpha. And they all played vital roles in the ultimate triumph or demise of their principals.

Nauta, of course, was – and, importantly, still is – Donald Trump’s “personal aide or ‘body man,’” according to the Justice Department’s indictment of the Mar-a-Lago dynamic duo. He’s a Navy veteran who, according to prosecutors, “reported to Trump, worked closely with Trump, and traveled with Trump.” Nauta’s duties ranged from your routine Diet Coke-fetching to your occasional classified documents-hiding to your as-needed perjury-committing.

As a result, Nauta now finds himself on the receiving end of six federal charges. He is not charged along with Trump on the 31 counts of Willful Retention of Defense Information that open the indictment. But Nauta faces six counts relating to obstruction and false statements. In short, the indictment charges that Nauta knowingly helped Trump hide classified and sensitive documents from their own lawyers, from federal investigators, and from a grand jury. You’ve seen those photos of boxes of documents stacked up on stage in a ballroom, piled high next to the toilet, and spilling out in the storage room; Nauta is the guy who did that.

Nauta was no unwitting dupe, according to the indictment. Prosecutors allege not only that Nauta moved the boxes and arranged for their journey around Trump’s resort (and perhaps beyond), but that he knew what he was doing and understood his conduct was unlawful. This is in contrast to other Trump staffers who are referenced generically in the indictment but not charged, presumably because they lacked provable criminal knowledge and intent. To make matters worse, when the FBI came looking for answers, Nauta lied. The indictment alleges that he falsely told the feds that he knew nothing about where the documents were stored, or how they got to where they ended up. But internal surveillance video and Nauta’s own texts exposed his lies.

The Justice Department’s case against Nauta, well-grounded as it appears to be in the evidence, got off to a rocky start. It somehow took three tries to get Nauta properly arraigned. First, he showed up in court without a lawyer who was actually admitted to practice in that court, and then he missed appointment number two because of air travel delays. But earlier this week, after nearly a full month wasted trying to accomplish the most basic procedural feat, the parties finally got it done. Hearty congratulations to all on this momentous achievement.

The big question now is whether Nauta will flip. On one hand, by all public indications, he has long been loyal to Trump; indeed, they recently made a pilgrimage together to Pat’s cheesesteaks in South Philly. (Quick sidenote: as a South Jersey kid, I’m supposed to roll my eyes and dismiss Pat’s as an overrated tourist trap, but I won’t do that; their cheesesteaks are great, and I’d pay about $40 for one right now.) Part of the bond between Trump and Nauta surely is personal, some of it is financial. A Trump political action committee is reportedly paying Nauta’s legal fees and, if he flips, that money dries up. (I wrote in my latest book about how this tactic of paying attorney’s fees for a co-defendant is common in organized crime, corporate America, and elsewhere; it’s not inherently illegal, but it absolutely does have the effect of making cooperation more difficult and protecting powerful bosses.)

DOJ tried to flip Nauta before the indictment, without success. Yes, it can be a sobering moment for any person to go from target to actual indicted defendant facing imprisonment. But there’s no sign that DOJ hit Nauta with unexpected charges, or that he’s wavering now that the indictment has dropped. I’ve been surprised before by who has chosen to flip, and when (including in some of my own cases), so I’m not going to definitively predict anything here. But, given what we know, it seems quite unlikely that Nauta will turn against Trump.

That said: I don’t think they need him. Given the indictment itself, and the evidence outlined therein, the Justice Department has plenty to work with, even if Nauta stays on the opposite side of the case caption. The indictment lays out a series of Nauta’s self-incriminating (and Trump-incriminating) texts, which are admissible even if he doesn’t cooperate. And prosecutors have surveillance video and apparently other witness testimony to prove in exacting detail when Nauta moved which boxes between the ballrooms, bathrooms, and storage closets of Mar-a-Lago. I might even prefer to try this case without putting Nauta on the stand. If he did flip, Trump’s defense team would roll out the usual anti-cooperator attack lines: he’s a liar, he holds a grudge, he’s shading the truth to help prosecutors. It’s a cleaner case to use Nauta’s own words and actions, as captured in texts and on video, without calling him as a witness.

If Nauta sticks by Trump, the parties will need to grapple with another vital issue: should Trump and Nauta be tried together or separately? Typically, prosecutors want to try all defendants at once. This is primarily a strategic consideration; the prosecutor usually wants to show the jury the entirety of the criminal scheme, all at once. And part of it is pragmatic; prosecutors don’t want whichever defendant goes second to have the benefit of seeing the witnesses testify in advance. (Plus, take it from me: it’s just a pain in the ass to try essentially the same case multiple times.) I was particularly militant about keeping co-defendants together for trial. I tried five defendants together in one case, and four, three and two defendants together in several others. I once told a judge I wanted to split a 24-defendant case into two groups of 12 each for trial; he rolled his eyes and said something like, “Let’s be realistic here, Mr. Honig.”

Defendants often, but not always, want to be tried individually. If Nauta has to sit at a trial table next to Trump – a more powerful figure who plainly committed more serious conduct – then he might suffer from what lawyers call “spillover prejudice.” The fear is that the passionate feelings that might be stirred against Trump could essentially infect Nauta too. On the other hand, Nauta might actually want to sit next to Trump at trial so that he’ll look like a mere peon by comparison, deserving of the jury’s sympathy. And, given that the case will be tried in South Florida, Nauta might want to piggyback on Trump’s political popularity there, and hope for at least one holdout juror and a hung jury.

Over just a few days, Nauta went from anonymous body-man to co-defendant in one of the highest-stakes prosecutions our country has ever seen. A hundred years from now, he’ll be the answer to a $2000 Jeopardy clue under “American Firsts”: This diminutive Naval valet was the first person ever to be charged with a crime alongside a former U.S. president. Nauta is the second priority in this case, by miles and miles. But, like all the great “other guys,” he’ll hold outsized influence on the ultimate fate of the headliner.

Stay Informed,
Elie