News

What to Know About Prosecutors’ Request for Protective Order in Jan. 6 Case


The first miniskirmish in the prosecution of former President Donald J. Trump on charges of conspiring to overturn the 2020 election involves a step that is taken in the early phases of many criminal cases: a proposal to impose rules on how the voluminous discovery evidence in the matter should be handled.

The disagreement started on Friday, when prosecutors in the office of the special counsel asked the judge who is overseeing the case for what is known as a protective order governing the disclosure of discovery material to Mr. Trump’s lawyers. The entreaty was entirely routine, although in making their request, the prosecutors took what could be considered an extra step.

In their motion, the prosecutors drew Judge Tanya S. Chutkan’s attention to a threatening message that Mr. Trump had posted that day on social media. Vague but strongly worded, it read, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

The prosecutors did not ask Judge Chutkan to issue a gag order against Mr. Trump because of the post. But they did use the message to suggest there should be clear rules in place to keep the former president from posting online any evidence that his legal team would get through the discovery process.

Their argument was inferential, asserting that a protective order was “particularly important” in this case because Mr. Trump has a longstanding habit of attacking those involved in criminal cases against him.

His campaign immediately responded by issuing a statement that the threatening message had not been directed at anyone involved in the case and was “the definition of political speech.” Mr. Trump’s lawyers have promised to fight the charges against him by raising First Amendment arguments.

Here is what to know about the protective order and what to expect.

Discovery evidence represents the bulk of the information that criminal investigators collect during an inquiry. It can come from any number of sources: interviews with witnesses, grand jury testimony or data from seized communications devices like cellphones or computers.

One of the first steps in a prosecution involves the government turning over all of that information to defense lawyers so they can understand the scope of the case against their client. Discovery evidence provides lawyers with a wide view of the legal landscape, allowing them to start planning pretrial motions to attack the charges or even trial defenses. If the discovery evidence is particularly damning, it can also cause lawyers to advise their clients to plead guilty.

Protective orders are typically put in place over discovery material to ensure that the case moves forward in an orderly fashion and with a measure of decorum. The orders, which can vary greatly in severity, generally demand that the defense employ discovery evidence only to pursue actions related to the case itself and not to release it widely and seek to try the case in the court of public opinion before it reaches a courtroom.

The government’s proposed protective order in the election interference case is fairly standard.

Its central provision is to restrict disclosure of discovery evidence only to parties with a direct interest in the case: Mr. Trump, his lawyers, any potential witnesses and their lawyers, and a catchall category of other people “to whom the court may authorize disclosure.”

The proposal also creates a special category of “sensitive materials” that “must be maintained in the custody and control of defense counsel.” These materials would include things like “personally identifying information” concerning witnesses in the case and any information that emerged from the grand jury that investigated the former president. (Grand juries work under strict secrecy rules.)

Mr. Trump’s legal team could show him the sensitive materials, but under the proposed order they would not be allowed to give him copies. He would also not be permitted to write down any personal information about people mentioned in the materials.

Moreover, while the sensitive discovery evidence could be used to file motions in the case, those motions would have to be partly redacted or submitted under seal.

Judge Chutkan set a deadline of Monday at 5 p.m. for Mr. Trump’s lawyers to respond to the government’s proposal.

One of the lawyers, John F. Lauro, asked on Saturday for a three-day extension, saying that he needed more time “to prepare a fulsome response.” But Judge Chutkan rejected the request.

In a TV appearance on Sunday, Mr. Lauro previewed some of his arguments against the government’s proposal, making a somewhat misleading claim that prosecutors were seeking to hide certain facts from public disclosure.

Credit…via Reuters

“What the Biden administration is trying to do is prevent the press from learning about exculpatory and helpful information — evidence — that the people have a right to know about,” he said on “This Week” on ABC.

But under the government’s proposed protective order, Mr. Lauro and his colleagues will be free to use any exculpatory information they receive through the discovery process to file pretrial motions — even if certain details will need to be redacted at first or some of the motions will initially have to be filed under seal.

Mr. Trump’s lawyers will also be able to use any “helpful information” they obtain at a public trial should there ultimately be one — provided Judge Chutkan rules it is admissible.

And, of course, much of the material shielded by the protective order may not be exculpatory or helpful to the former president at all, but rather incriminating and damaging.

Mr. Trump took a different tack toward responding to the request for a protective order and Judge Chutkan’s decision to keep the deadline on Monday.

After his campaign issued its statement, he went on the war path on social media over the weekend, attacking Mr. Smith as “deranged” and calling for Judge Chutkan to be recused from the case.

Judge Chutkan is almost certain to impose some sort of protective order governing the production of discovery, though it remains to be seen what sorts of restrictions she will put in place.

She could decide to caution Mr. Trump about his online screeds — though she may simply ignore the situation while considering this narrow issue.

But even if she does send a shot across his bow, any move to formally issue a gag order is likely to be part of a separate process — and only after warnings are issued.

Mr. Trump’s lawyers objected to some provisions of the protective order that the special counsel’s office proposed in the other federal case the former president is facing, in which he stands accused of illegally holding on to dozens of classified documents after leaving office.

Prosecutors had initially asked the judge in that case, Aileen M. Cannon, to bar Mr. Trump from being able to see some of the classified discovery evidence. But they changed their minds after his legal team complained.

Leave a Reply

Your email address will not be published. Required fields are marked *