Donald Trump notched a win in the fight over a protective order in the 2020 election case as the judge ruled that some of the evidence that will be provided to him in the pre-trial discovery process won’t be restricted from dissemination if it’s not deemed “sensitive” by the government.
US District Judge Tanya Chutkan ruled on Friday that the protective order will only apply to sensitive materials such as grand jury transcripts, witness interview records, and other documents that could identify witnesses or be used to poison the pool of potential jurors who will be responsible for deciding the ex-president’s fate when he goes on trial next year.
Special Counsel Jack Smith’s office had asked her to impose a more restrictive order which would have applied to any and all materials provided to Mr Trump’s defence team in discovery, while Mr Trump’s attorneys had asked for her to allow the former president leave to talk about non-sensitive materials, citing his ongoing campaign for the Republican nomination in next year’s presidential election.
Prosecutors had made the request for a broad protective order with the aim of preventing Mr Trump from poisoning the jury pool ahead of his expected trial next year, citing statements by the ex-president’s legal team which they said indicated a desire to try the case “in the press”.
But Judge Chutkan, a former defence attorney and a nine-year veteran of the federal bench who was nominated by then-president Barack Obama and confirmed by a unanimous Senate vote in 2014, rejected the prosecution’s preferred language on the grounds that Mr Trump’s conduct with regard to the non-sensitive discovery is still governed by his release conditions and the rules of the court.
While the slightly less restrictive order over non-sensitive discovery materials was an early win for the ex-president’s team, the judge rejected numerous defence requests pertaining to the handling of materials generated by witness interviews, often over the protests of his attorney, John Lauro, who frequently referenced the needs of Mr Trump’s campaign.
At one point during arguments over the restrictions on non-sensitive discovery materials, Mr Lauro suggested that the broad protective order sought by the government would advantage President Joe Biden in next year’s general election.
But while the judge ultimately granted the request to exclude non-sensitive materials from the protective order, she pushed back against Mr Lauro’s political argument and said she “cannot and will not factor into [her] decision” the effect on any political campaign.
In another contentious exchange over materials pertaining to witness interviews, the defence lawyer referenced Mike Pence, Mr Trump’s former vice president and current GOP primary opponent.
Mr Pence, who gave evidence before the grand jury that indicted Mr Trump last month, is also a witness in this case, and Mr Lauro expressed concern that his client’s political attacks against his opponent could land him in hot water in court.
“The risk is that someone can say something in the course of a heated debate or a heated campaign and [prosecutors] are going to throw a flag,” he said.
In response, Judge Chutkan told Mr Lauro he was “conflating what your client needs to do to defend himself and what your client wants to do politically” and admonished him that Mr Trump’s defence is “supposed to happen in this courtroom, not on the internet”.
“The existence of a political campaign is not going to factor into my decision. I intend to keep politics out of this,” she said.
Judge Chutkan later added that Mr Trump is “a criminal defendant” in addition to being a candidate for president, and stressed that he “is going to have restrictions like every single other defendant”.
She also stressed that under the rules of criminal procedure and applicable court precedents, Mr Trump’s right to free speech must be balanced with the need to protect the integrity of the legal proceedings against him.
Mr Lauro had also pushed for Judge Chutkan to accept a defence proposal to allow the ex-president permission to review sensitive discovery materials outside the presence of counsel, citing the burden of forcing attorneys or staff to sit with him while he reviews often-lengthly documents.
The government had pushed for Mr Trump to only be permitted to view sensitive discovery with his attorney present, citing the potential for him to use the materials to intimidate witnesses, while Mr Lauro had asked for him to be able to review materials by himself.
“We can put in procedures to get that information back immediately, but we have to have a situation where our client is allowed to review materials on his own,” Mr Lauro said.
Asked to explain the disagreement, prosecutor Thomas Windom observed that Mr Lauro “has a certain level of trust in the defendant that the government does not”.
He also expressed concern that Mr Trump could use unsupervised time with sensitive documents to take pictures or photocopy them, and alluded to the other federal criminal case which his office brought against Mr Trump for his alleged unlawful retention of national defence information.
“The defendant, when he only has the material to himself, could elect to photocopy or otherwise reproduce, take a picture of the sensitive materials ... He has shown a tendency to desire to hold onto material he knows he should not have,” he said.
Judge Chutkan elected to impose what she described as a compromise measure, under which Mr Trump can review materials without a lawyer or paralegal present, but without any access to electronic devices. She also ordered his lawyers to review any notes he takes to ensure they don’t include information about witnesses.
Throughout the hearing the judge made reference to Mr Trump’s release conditions and legal prohibitions against intimidating witnesses or otherwise undermining the integrity of court proceedings.
While she declined to directly address numerous public statements by Mr Trump, including social media posts which have referenced her, Mr Smith and other witnesses in the case, because there were no motions pending before her on such matters, Judge Chutkan also issued what she described as a “general word of caution” to Mr Trump’s counsel.
The judge, quoting a 1966 Supreme Court case, Sheppard v Maxwell, said she intends to “ensure that Mr. Trump is afforded all the rights of any citizen would have” while avoiding “a carnival atmosphere of unchecked publicity and trial by media rather than our constitutional the established system of trial by impartial jury”.
“Legal trials are not like elections, to be won through the use of the meeting hall, the radio and the newspaper,” she said, quoting the late Justice Hugo Black while adding an observation that the internet “hadn’t been invented yet” in Justice Black’s day.
“This case is no exception,” she said.
She also stressed that she is committed to “ensuring that this case proceeds in the normal course that our criminal justice system describes,” and warned that if he continues to make statements that could influence the jury pool, the date of his trial could be moved up even sooner than the 2 January 2024 date requested by the prosecution.
“I intend to ensure the orderly adminsitration of justice in this case as I would with any other case. Even arguably ambiguous statements from parties or their counsel … can threaten the process ... In addition, the more a party makes inflammatory statements about this case which could taint the jury pool ... the greater the urgency will be that we proceed to trial quickly,” she said, adding later that she would “take whatever measures are necessary to safeguard the integrity of these proceedings”.
Mr Trump’s attorneys are due to file their response to the government’s request for a 2 January 2024 trial date next week. Judge Chutkan has said she intends to set a trial schedule when the parties return to her court on 28 August.
