The federal judge overseeing the election conspiracy case against Donald Trump agreed with the defense on a looser version of a protective order for evidence in the case, but largely sided with the prosecution on what sensitive materials should be protected as she vowed to keep politics out of her rulings.
U.S. District Judge Tanya Chutkan in Washington repeatedly said that Trump was subject to the court’s rules as a defendant before trial even though he is also running for president at the same time. She warned that she would not let political considerations affect her rulings.
“Your client’s defense is supposed to happen in this courtroom, not on the internet,” Chutkan said.
Chutkan rejected prosecutors’ broader protective order proposal that sought to prevent the public airing of all evidence they hand over to Trump’s defense as they prepare for trial. She instead seemed poised to impose a more limited protective order that would bar the public release only of materials deemed “sensitive,” such as grand jury materials.
She did, however, block other defense requests to broaden the scope of who can see discovery and what should be considered sensitive.
The government considers the vast majority of evidence in the case to be sensitive. The judge sided with the prosecution on what materials are considered sensitive and therefore protected under the order.
When prosecutors proposed the protective order, it became an early flashpoint in the case. The prosecutors called the judge’s attention to a post on Trump’s social media platform in which he said he would be “coming after” those who “go after” him.
They warned Trump could improperly share sensitive information online that could have a “harmful chilling effect on witnesses.” They accused Trump of objecting to their proposal because he wants to be able to use the government’s evidence to “try the case in the media rather than in the courtroom.”
Lawyers for Trump, who has railed against prosecutors and the judge on social media and during campaign events, said the government’s proposed order went too far and would restrict his free speech rights.
John Lauro, an attorney for Trump, raised the example of former Vice President Mike Pence — who is both competing against Trump for the Republican nomination and a potential witness in the case before Chutkan. Trump has repeatedly attacked Pence for being disloyal.
“President Trump has the ability to respond fairly to political opponents,” Lauro said.
Trump, the early front-runner in the 2024 Republican presidential primary, says he is innocent of the charges, including conspiracy to defraud the United States. He has portrayed investigations of him as politically motivated.
Prosecutors say that they are ready to hand over a substantial amount of evidence to Trump’s legal team and that much of it includes sensitive and confidential information — like transcripts from the grand jury that investigated the case and evidence obtained through sealed search warrants. Grand jury proceedings are secret.
Prosecutors’ filing last week seeking the protective order included a screenshot of a post from Trump’s Truth Social platform that same day in which the Republican ex-president wrote, in all capital letters, “If you go after me, I’m coming after you!”
“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,” prosecutors wrote in their motion.
A Trump spokesperson said the Truth Social post was made in response to “dishonest special interest groups and Super PACs” and is “is the definition of political speech.”
The prosecutors proposed a protective order barring Trump and his lawyers from disclosing materials provided by the government to anyone other than people on his legal team, possible witnesses, the witnesses’ lawyers or others approved by the court. They also asked for stricter limits on “sensitive materials,” which would include grand jury witness testimony and materials obtained through sealed search warrants. In those instances, Trump could only be shown the documents, not get a copy himself.
Trump’s team, meanwhile, asked for a more narrow order that would bar the public release only of the materials deemed “sensitive,” such as grand jury documents. Defense attorneys wrote in court papers that the need to protect sensitive information “does not require a blanket gag order over all documents produced by the government.”
The case, unsealed last week, is the first criminal case that seeks to hold Trump accountable for his efforts to cling to power before an angry mob of supporters fueled by his election lies attacked the Capitol on Jan. 6, 2021. It comes as Trump faces two other criminal cases and tries to reclaim the White House.
Trump has pleaded not guilty to four felony counts, including conspiracy to defraud the U.S. and conspiracy to obstruct Congress’ certification of Democrat Joe Biden’s electoral victory. The charges could lead to a lengthy prison sentence in the event of a conviction, with the most serious counts calling for up to 20 years.
Smith’s team has indicated that it wants the case to move to trial swiftly, and this week it proposed a Jan. 2 trial date. Trump is already scheduled to stand trial in March in a New York case stemming from hush money payments made during the 2016 campaign and in May in another case brought by Smith accusing the former president of hoarding classified documents at his Mar-a-Lago estate in Palm Beach, Florida.
Smith charged Trump in June with dozens of felony counts alleging the former president illegally kept classified records after he left the White House and obstructed government efforts to get them back. A new indictment recently unsealed in that case accuses Trump of scheming with Mar-a-Lago staffers to try to delete security footage sought by investigators.
Magistrate Judge Bruce Reinhart in June imposed a similar protective order in that case that prohibits Trump and his legal team from publicly disclosing evidence turned over to them by prosecutors without prior approval.
Trump has characterized all the cases against him as an effort to take down his 2024 campaign. His legal team has indicated that it will argue in the latest case that he had relied on the advice of attorneys around him in 2020 and that filing it represents an attack on his right to free speech and his right to challenge an election that he believed had been stolen.
Trump has also lashed out at the judge overseeing the case, writing on his Truth Social platform that his legal team would be “immediately asking for recusal of this judge,” as well as to move the case outside of Washington.
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