Within hours of Donald Trump requesting a stripped-down protective order — narrower than one sought by prosecutors in the federal 2020 election criminal case against the former president — special counsel Jack Smith rejected the revised proposal, leading to a quick decision by the presiding judge to order a hearing.
An eight-page reply from Smith’s team argued the court should stick with the government’s broader array of suggested rules to stem the disclosure of evidence for the trial rather than consider the limiting tweaks offered by Trump, who has pleaded not guilty to charges over an alleged effort to overturn the results of the last presidential contest. The filing recites quotes from Trump’s defense counsel in various TV appearances claiming Smith’s proposed rules would suppress helpful information from making its way to the press.
“The central purpose of criminal discovery is to provide the defendant with materials necessary to prepare for a fair trial. To facilitate the efficient production of discovery to the defense, the Government proposed a reasonable protective order consistent with current practice in this District,” Smith team said.
“The defendant instead proposed an order designed to allow him to try this case in the media rather than in the courtroom. To safeguard witness privacy and the integrity of these proceedings, the Court should enter the Government’s proposed protective order,” the reply added.
Trump’s lawyers filed their response to Smith’s proposed order just before the deadline at 5 p.m. ET after U.S. District Judge Tanya Chutkan, who is based in Washington, D.C., denied their request for an extension over the weekend.
The Trump legal team asked that the government’s the proposed order be narrowed to “shield only genuinely sensitive materials from public view” or else their client may be restricted from discussing non-sensitive, potentially exculpatory evidence and could be precluded from seeking the help of “volunteer attorneys” or others “without paid employment arrangements.”
Trump’s lawyers also warned that the government seeks to restrict Trump’s First Amendment rights in a case about First Amendment rights and claimed that President Joe Biden has already “capitalized” on the indictment, pointing to a re-election campaign social media post showing him drinking from a “Dark Brandon” coffee mug hours before Trump was arraigned. Like Biden, Trump is running a 2024 campaign for another term in the White House.
Prosecutors filed the request for a protective order on Friday, seeking to have Trump’s lawyers maintain control of “sensitive materials.” Among the proposed stipulations, Trump could be shown the sensitive materials but the former president’s lawyers would be barred from providing copies to him, nor would Trump be allowed to take notes with certain types of personal identifying information.
Smith’s team said “much” of the evidence they planned to share with Trump’s legal team contained “sensitive and confidential information.” Prosecutors raised concerns about Trump’s posts to social media regarding “witnesses, judges, attorneys, and others associated with legal matters pending against him,” and said if the former president “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.”
Smith’s team specifically made reference to a post Trump made to his Truth Social account on Friday — one day after the former president’s arraignment — writing in all capital letters, “If you go after me, I’m coming after you!”
In their filing on Monday, Trump’s legal team requested a hearing on the matter so that the “parties may fully discuss each redline, in sequence, and address any concerns the Court may have.” The response from Smith’s team argued, “No oral argument is necessary,” and concluded that the court “should enter the Government’s proposed protective order.”
“The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceedings,” Smith’s team said. “The defendant has proposed an unreasonable order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail.”
After the back-and-forth on Monday, Chutkan ordered both sides to communicate and settle on two dates and times for when they are available for a hearing to take place no later than Friday.
Trump, who faces multiple criminal indictments on both the federal and state levels — including charges in another, documents-related case brought by Smith — has broadly denied any wrongdoing while claiming he is the target of a “witch hunt.”
In June, a judge granted a protective order that restrained Trump from disclosing evidence in the documents case.