Background: The E. Barrett Prettyman Courthouse stands behind barricades and police tape in Washington, D.C. (Photo by Allison Bailey/NurPhoto via AP). Inset left: Former President of the United States Donald J. Trump plays golf during the LIV Golf Bedminster 2023 Pro-Am at Trump National Golf Club Bedminster in Bedminster, New Jersey on August 10, 2023 (Photo by Kyle Mazza/NurPhoto via AP). Inset right: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023 (AP Photo/J. Scott Applewhite).
Attorneys for former President Donald Trump and special counsel Jack Smith met at the E. Barrett Prettyman courthouse on Friday to negotiate terms of a protective order sought by federal prosecutors that they hoped would prevent Trump and his legal team from publicly and improperly sharing any evidence in discovery ahead of the high-profile criminal trial.
But as proceedings wrapped up before U.S. District Judge Tanya Chutkan, it was the former president's team that scored the arguably larger victory over key disputes in the order.
The main victory for Trump on Friday was Chutkan's rejection of the special counsel's proposed protective order wholesale. While parts of it she kept, others she did not, though her most central agreement with Trump was her decision to accept Trump's request that narrower limits be placed on what he can say publicly, instead of the broader ones requested by special counsel.
Trump waived his appearance on Friday.
The former president was indicted on Aug. 1 on four felony counts related to Jan. 6 including three charges of conspiracy: to defraud the U.S., to obstruct an official proceeding, and to "injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States."
The fourth count was for obstruction of and attempt to obstruct an official proceeding. In total, Trump is facing three criminal indictments in three separate jurisdictions and more than 70 felony counts overall and could face yet another indictment from Fulton County District Attorney Fani Willis as soon as next week.
Trump has pleaded not guilty to all of the charges he faces, including those in Washington where it is alleged he engaged in various criminal conspiracies to overturn the results of the 2020 election.
At Friday's hearing, Trump's attorney John Lauro often noted to Chutkan that if the special counsel's order was enforced as proposed, it would mean Trump would be unable to say much of anything publicly about the matter, whether what he may reference is deemed sensitive or not.
It would be impossible for him, Lauro argued, to avoid potentially running afoul of investigators or having his First Amendment rights infringed. That is particularly problematic, he said, while Trump was in the middle of a political campaign.
On some of Lauro's points, Chutkan agreed. On others, she emphatically did not.
Like Trump's legal team requested, she did order that only information actually deemed "sensitive" should be kept under the protective order and that non-sensitive materials would not be shielded from public view.
But as for any special treatment sought because Trump is in the middle of a political campaign, or suggestions that he is being silenced or gagged altogether, Chutkan had no sympathy.
"The fact that he is running a political campaign means he has to yield to the ordinary order of justice," Chutkan said.
Like every American, she said, the former president has the right to free speech.
"But that right is not absolute. It is subject to the conditions imposed at arraignment," she said.
Lauro, however, argued that it was "obvious" Trump has a right to respond to political opponents as he sees fit, and that would include potentially discussing details of the case openly.
"But that has to yield. Regardless of what is going on with his, I hate to say, his day job, this is a criminal case. 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," the judge remarked.
When Lauro asked if Trump could speak about those details if he has "a memory" while on the campaign trail or appearing in public, Chutkan abruptly interrupted. Trump could not disclose details without limitations, she reminded him no less than three times.
When Lauro later balked about the timing of the case, Chutkan offered another reminder.
"What the effects of the political campaign are are not before me and will not influence me here. This is a criminal trial. Brought at the time the prosecution was ready to bring charges. I don't have any control over that. I cannot and will not factor into my decisions whether it [will] affect a political campaign on either side," she said.
TODAY: The birds and I are up early here at the Prettyman courthouse where I await a hearing before Judge Tanya Chutkan on a protective order sought by Special Counsel Jack Smith in Donald Trump's Jan. 6 indictment. Hearing starts at 10AM ET. I hope you'll join me for updates. https://t.co/iBQqOKiCbx pic.twitter.com/8jVDO5e6D4
— Brandi Buchman (@Brandi_Buchman) August 11, 2023
Before Chutkan rendered her decision, prosecutor Thomas Windom urged the judge to consider how Trump's speech since his indictment has indicated that he intends to try his case in the press and, in the process, how he could also potentially intimidate, threaten or harass witnesses.
There was good cause to support this, he argued.
Chutkan expressed some agreement, and met the government halfway. Any recordings or transcripts or reports of witness interviews would fall under the banner of "sensitive" information and Trump must shield those materials from view pretrial.
Windom also expressed concern about Trump engaging in "endless litigation" if adjustments to the order would made on the fly, but Chutkan insisted that proceedings would occur under "normal order" and abuse of the process would not be tolerated.
Smith has asked that the trial begin on Jan. 2, 2024, and prosecutors indicated on Friday that they are ready to turn over a substantial amount of their discovery to Trump's team as soon as the end of this month. Prosecutors were cagey about revealing how much material there would be to turn over, but with some coaxing from Chutkan, Windom let the cat out of the bag.
There are 11.6 million pages of discovery in the case, Windom revealed.
Lauro said he would have an idea for when the defense will be ready to go to trial in the days ahead.
Protective orders, or rules for the road on evidence sharing, are typical to criminal cases and Chutkan acknowledged them as such on Friday. What is unusual is the amount of infighting over an order at this stage.
Even in a case featuring many firsts and novelties, the administration of justice would go in this case as it goes in any other criminal case, Chutkan said before offering a warning.
"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 said.
As for limits on how Trump can review discovery once he shas it in his hands, prosecutors had wanted a member of Trump's legal team present with him at all times during review. Chutkan, however, agreed with Lauro that this would be unduly burdensome when weighing the balance between protecting the information and doing what is realistically possible for thin-stretched lawyers and paralegals.
In a sharp quip and clear reference to Trump's Mar-a-Lago indictment for willful retention of classified materials, Windom said to Chutkan: "He has shown a tendency or desire to hold onto material which he should not have."
The judge ordered that Trump cannot be allowed to have a phone on him while he's reviewing discovery and he should have no access to any device that would allow him to scan or photocopy or record materials. While Chutkan did not order Trump to have lawyers in the room with him while reviewing discovery, she did order that someone be on hand to collect and transport records when he's done. She also ordered, as special counsel requested, that defense attorneys inspect Trump's notes on discovery to ensure they do not contain anything sensitive.
Read Judge Chutkan's order here.
