Washington — The federal judge overseeing the case against former President Donald Trump related to the 2020 presidential election said she would accept a proposed protective order put forth by the former president’s lawyers that imposes narrower limits on the disclosure of evidence than prosecutors had sought.
At a hearing in federal court in Washington on Friday, U.S. District Judge Tanya Chutkan said she would decline to adopt the order that special counsel Jack Smith requested last week, which would have prevented the “improper dissemination or use” of all evidence to the public that is turned over to Trump’s lawyers before the trial.
Instead, she said she agreed with the proposed order from Trump’s legal team, who argued that only “sensitive” information should be kept under wraps. The Trump team’s order would not cover the disclosure of “non-sensitive” material.
But Chutkan agreed with prosecutors that all recordings, transcripts and reports of witness testimony should be considered “sensitive” information that must be shielded from public view.
Prosecutors said the first batch of discovery material it will share with Trump’s team includes roughly 11.6 million pages. The government expects to finish gathering all the material by Aug. 28, when a status conference is scheduled in the case.
The protective order emerged as an early point of contention between Smith and Trump’s team, and the two sides gathered for a hearing before Chutkan to argue their respective positions. It was their first meeting since Trump pleaded not guilty to four federal charges last week. The former president did not attend.
During the hearing, Chutkan said that Trump has a First Amendment right to free speech, but acknowledged that right “is not absolute.” She said Trump is subject to the conditions of his release that were imposed at his arraignment last week, including rules preventing witness intimidation.
The fight over the protective order
The protective order governs the disclosure by both sides of material collected by the government in its case against Trump, which centers around his alleged efforts to stop the transfer of presidential power.
In a filing last week requesting the order, prosecutors said they are seeking to prevent the “improper dissemination or use” of evidence, including to the public. They pointed to a post by Trump on his social media platform — which said “If you go after me, I’m coming after you!” — as demonstrating why such a restriction is needed.
“If the defendant were to begin issuing public posts using details — or, for example, grand jury transcripts — obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” the special counsel’s team wrote in their Aug. 4 filing.
Protective orders, which are different from gag orders, are not uncommon in criminal cases, though prosecutors told the court that limiting the information Trump and his lawyers can disclose to the public is “particularly important in this case” because the former president has posted to social media about “witnesses, judges, attorneys, and others associated with legal matters pending against him.”
Trump’s lawyers, though, pushed back on prosecutors’ request and accused the special counsel’s team of targeting the former president’s First Amendment rights. Attorneys John Lauro and Todd Blanche proposed “only genuinely sensitive materials” be shielded from public view, such as grand jury information, material obtained from sealed search warrants and personally identifying information.
“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights,” they told the court in a filing Monday. “Worse, it does so against its administration’s primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations.”
They argued Trump’s post about “coming after” his opponents had nothing to do with the case and “does nothing to support the [government’s] Proposed Order.”
Trump’s lawyers included a social media post from President Biden — a video of him drinking from a coffee mug featuring the so-called “Dark Brandon” meme — shared before Trump was arraigned, and claimed it was a “thinly veiled reference to” the former president’s prosecution. Because the case involves the leading Republican candidate for the presidency, they said there is an “unprecedented political dimension to this prosecution.”
The White House declined last week to comment on the indictment against Trump, and White House press secretary Karine Jean-Pierre told reporters Monday that the Justice Department is an “independent department as it comes to dealing with these types of cases.”
Prosecutors warned in a second filing, submitted Monday, that the proposed order from Trump would lead to the public release of discovery material and accused the former president of seeking to use that information to “litigate this case in the media.”
“The goal of the defendant’s proposed protective order — prejudicial publicity — is antithetical to the interests of justice,” Smith’s team argued.
Trump has repeatedly denied wrongdoing in the case involving the 2020 election and events leading up to the Jan. 6, 2021, assault on the U.S. Capitol, and has claimed his prosecution aims to harm his now third bid for the White House in 2024.
Lauro told “Face the Nation” on Sunday that he will seek to have the case against Trump dismissed and moved out of Washington, D.C.
The special counsel, meanwhile, proposed Thursday that a trial begin Jan. 2, 2024, and estimated prosecutors will need between four and six weeks to make their case. Trump and his lawyers have until Aug. 17 to put forth their own date for a trial.
If Chutkan agrees to the schedule suggested by prosecutors, the trial would begin two weeks before the Iowa caucuses on Jan. 15, the first contest in the 2024 presidential election cycle. It would also get underway just days before the three-year mark of the Jan. 6 attack on the Capitol.
