As Trump Howls About First Amendment, Court Issues Protective Order In Trump Jan 6 Case

(Photo by Evan Vucci-Pool/Getty Images)

Donald Trump scored a partial victory in his battle to try his case in the press as Judge Tanya Chutkan imposed a less restrictive protective order than the one sought by Special Counsel Jack Smith in the election interference case.

Trump claims a free speech right to discuss the case, vowing recently to supporters in New Hampshire, "I will talk about it. They're not taking away my First Amendment." Similarly, his lawyer John Lauro made clear in the course of a "full Ginsburg" on the Sunday news shows that he intends to publish all of the discovery in the case.

"What the Biden administration is trying to do is prevent the press from learning about exculpatory and helpful information, evidence that the people have a right to know about," he complained on ABC, repeating the claim on several other networks.

This morning, Lauro duked it out with the DOJ's Thomas Windom in Judge Tanya Chutkan's courtroom. From the jump, it was clear that the prosecutors weren't going to get the blanket order they'd been hoping for. The court reminded the government that non-disclosure orders must be granted for "good cause," and the burden is on the moving party. Instead she protected only materials designated as sensitive, although that appears to constitute the bulk of the voluminous discovery here.

But in more or less every other respect, the government got what it wanted. Lauro argued for a relaxed standard which would allow the defense to disseminate sensitive discovery materials to "volunteer attorneys or others without paid employment arrangements to assist with the preparation of this case." The government pointed out that this might permit Trump to share the entirety of its production with the six unindicted coconspirators named in the indictment, all of whom are attorneys. The court seemed highly receptive to this argument, and the final order limits sharing to "persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the court may authorize disclosure."

There was further sparring this morning about Trump's unchaperoned access to sensitive discovery, particularly in light of his habit of targeting civil servants as well as his insistence that he has a constitutional right to say anything he likes about pending litigation. The protective order specifies that, if Trump accesses sensitive evidence outside the presence of his counsel, he can't take notes, or even look at it while he's got access to a photocopier or a cell phone.

Most saliently, Judge Chutkan seemed unimpressed by the defense's argument that courtroom procedures would have to yield to the vicissitudes of Trump's presidential campaign. Lauro seemed highly concerned that his client might blurt something out in the heat of the campaign and then be found in contempt of court.

"That has to yield. Regardless of what is going on with his, I hate to say, his day job, this is a criminal case," Judge Chutkan countered, according to Law & Crime's Brandi Buchman, who was in the courtroom. "The need for this to proceed in normal order and protect witnesses and the integrity of the process means there are going to limits on the defendant's speech."

Chutkan cont: If they could reasonably be interpreted to intimidate witnesses or taint jury pool....it will be addressed.
Chutkan says take special care about your public statements and she will take whatever measures are necessary to safeguard the integrity of the case

-- Brandi Buchman (@Brandi_Buchman) August 11, 2023

And a day after striking a sealed pleading filed by the government, the court signaled its awareness of public interest, modifying the government's proposed order by instructing the parties that any motion to seal must be accompanied by "a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal."

Prosecutors have thus far not moved for a gag order, although they have flagged multiple incendiary posts by the former president on his Truth Social platform. Judge Chutkan herself referred to them, obliquely threatening to accelerate the case if Trump insists on screaming to potential jurors about the case.

"The more a party makes inflammatory statements about this case which would taint the jury pool or intimidate witnesses, the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury," she warned.

Trump lawyers, special counsel square off in court on limits for pretrial evidence in Jan. 6 indictment [Law & Crime]
US v. Trump [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.