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Trump documents case: Special counsel seeks protective order to cloak ‘ongoing investigations’ and ‘uncharged individuals’

Jack Smith, Donald Trump

Jack Smith (AP Photo/Peter Dejong, Pool), Donald Trump (AP Photo/Evan Vucci, File)

Former President Donald Trump and his personal assistant may not wind up being the only people charged in a sprawling, 37-count indictment over the alleged mishandling of national defense information.

That appears to be the implication of a request for a protective order filed by Department of Justice special counsel Jack Smith late on Friday.

“The materials also include information pertaining to ongoing investigations, the disclosure of which could compromise those investigations and identify uncharged individuals,” Smith’s counselor Jay Bratt wrote in a three-page motion.

Former federal prosecutor Mitchell Epner spelled out the subtext in an interview with Law&Crime.

“This draft order clearly leaves open the possibility that additional people will be charged,” he said, adding that it also dangles the possibility of more charges against Trump and aide Walt Nauta, who’s charged with him.

Trump already faces a battery of charges after the FBI seized more than 102 documents with classification markings at Mar-a-Lago, including 17 marked Top Secret and dozens of others marked Secret or Confidential. The former president stands accused of alleged violations of the Espionage Act, conspiracy to obstruct justice, false statements and more. He has pleaded not guilty to the offenses.

His aide Walt Nauta, who has not yet entered a plea, is a military veteran who allegedly moved boxes at the former president’s direction after his receipt of a subpoena.

In a late Friday filing, the special counsel’s office proposed a broad protective order to shield sensitive information as prosecutors turn over information to the defense. Such a request is a standard part of criminal procedure, particularly in cases involving national security.

But Trump has chafed at such restrictions in the past, including in his other criminal case in New York related to hush-money payments to pornographic film actress Stormy Daniels.

In that case, Manhattan Supreme Court Justice Juan Merchan imposed a protective order designed to allow Trump to discuss the case, as long as he doesn’t spill certain sensitive information before trial.

For Epner, the latest protective order may be a challenge for Trump and his defense team.

“This is the protective order that Trump is going to find extraordinarily difficult to comply with,” said Epner, who’s currently a partner at Rottenberg Lipman Rich PC.

Under its terms, Trump cannot disclose ” even the non-classified discovery to anyone outside his defense team,” he noted.

Trump also cannot have a copy of the materials, and he can only review them in the presence of his lawyers. If Trump makes notes — or his attorneys do so for him — those notes must stay with his counsel.

“He can’t get a copy of those, either,” Epner said.

Characterizing the order as “standard,” Epner nonetheless added: “Donald Trump is not your standard defendant.”

The request was quickly sent to U.S. Magistrate Judge Bruce E. Reinhart, who is handling certain pretrial matters for U.S. District Judge Aileen Cannon, a Trump appointee. Legal observers criticized Cannon for her handling of the investigation that preceded Trump’s indictment. She issued an unusual order preventing the government from scrutinizing the seized, classified documents for their investigation until a special master could review them for attorney-client or other privileges.

The conservative 11th Circuit Court of Appeal issued a scathing opinion overruling her, which accused Cannon of a “radical” restructuring of criminal law.

If Trump were to violate such an order, Epner said, such a circumstance would put Cannon to the test.

“We will see if Judge Cannon applies the same standards to Donald Trump that would apply to any other defendant, because I cannot imagine him adhering to this order,” Epner said.

Trump’s attorney Christopher Kise didn’t immediately respond to a request for comment.

Read the proposed protective order here.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."