Judge in Trump Jan. 6 case issues order limiting use of "sensitive" material

Washington — The federal judge overseeing the case against former President Donald Trump related to the 2020 presidential election issued a protective order Friday limiting the use and disclosure of "sensitive" material moving forward, imposing a narrower set of restrictions than prosecutors had sought.

At a hearing in federal court in Washington on Friday, U.S. District Judge Tanya Chutkan said she disagreed with the scope of an order proposed by special counsel Jack Smith last week that would have prevented the "improper dissemination or use" of all evidence that is turned over to Trump's lawyers before the trial.

Instead, she agreed with Trump's legal team, who argued that only "sensitive" information should be kept under wraps. 

But Chutkan sided with prosecutors on several details related to the order, including a request that all recordings, transcripts and reports of witness testimony should be considered "sensitive" information. She also gave the government wide latitude to decide which records should be considered sensitive and thus restricted.

Chutkan also accepted prosecutors' request that Trump's lawyers review any notes he takes about sensitive material to ensure they don't include personal identifiable information. She denied a request from Trump's team to broaden the number of people who could have access to the discovery material.

During the hearing, Chutkan said that Trump has a First Amendment right to free speech, but acknowledged that right "is not absolute." She said Trump is subject to the conditions of his release that were imposed at his arraignment last week, including rules preventing witness intimidation.

The protective order

The terms discussed during the hearing were laid out in the five-page protective order issued by Chutkan hours after the proceeding concluded, in which the judge formally granted in part and denied in part the special counsel's proposal. 

The order governs the disclosure of material collected by the government in its case against Trump, which centers around his alleged efforts to stop the transfer of presidential power after he lost the 2020 election. He pleaded not guilty to four federal charges last week and denies any wrongdoing.

Friday's order makes clear that it "does not apply to information or records that are publicly available independent of the Government's productions, nor does it apply to information or records which the defendant or defense counsel came into possession by independent means, unrelated to the discovery process."

It specifies several categories of "sensitive materials" that can only be used by Trump, his lawyers and potential witnesses in connection with the defense and cannot be publicly disclosed. They include materials containing personally identifying information; grand jury subpoena returns and witness testimony; information obtained through sealed search warrants and orders for electronic communications; and materials obtained from other governmental entities.

It also imposes rules governing Trump's access to the sensitive materials. Chutkan said Trump can't have any device that can photocopy and record, such as a smartphone, with him if he reviews the information without his lawyers present.

The order requires the former president's lawyers to ensure all sensitive materials are "collected and safeguarded" when he is done reviewing them.

Prosecutors said the first batch of discovery material it will share with Trump's team includes roughly 11.6 million pages. The government expects to finish gathering all the material by Aug. 28, when a status conference is scheduled in the case.

An early battle over evidence

The protective order emerged as an early point of contention between Smith and Trump's team, and the two sides gathered for Friday's hearing before Chutkan to argue their respective positions. It was their first meeting since Trump pleaded not guilty. The former president did not attend.

In a filing last week requesting the order, prosecutors sought to prevent the "improper dissemination or use" of evidence, including to the public. They pointed to a post by Trump on his social media platform — which said "If you go after me, I'm coming after you!" —  as demonstrating why such a restriction is needed.

"If the defendant 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," the special counsel's team wrote in their Aug. 4 filing.

Protective orders, which are different from gag orders, are not uncommon in criminal cases, though prosecutors told the court that limiting the information Trump and his lawyers can disclose to the public is "particularly important in this case" because the former president has posted to social media about "witnesses, judges, attorneys, and others associated with legal matters pending against him."

Trump's lawyers, though, pushed back on prosecutors' request and accused the special counsel's team of targeting the former president's First Amendment rights. Attorneys John Lauro and Todd Blanche proposed "only genuinely sensitive materials" be shielded from public view, such as grand jury information, material obtained from sealed search warrants and personally identifying information.

"In a trial about First Amendment rights, the government seeks to restrict First Amendment rights," they told the court in a filing Monday. "Worse, it does so against its administration's primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations."

They argued Trump's post about "coming after" his opponents had nothing to do with the case and "does nothing to support the [government's] Proposed Order."

Trump's lawyers included a social media post from President Biden — a video of him drinking from a coffee mug featuring the so-called "Dark Brandon" meme — shared before Trump was arraigned, and claimed it was a "thinly veiled reference to" the former president's prosecution. Because the case involves the leading Republican candidate for the presidency, they said there is an "unprecedented political dimension to this prosecution."

The White House declined last week to comment on the indictment against Trump, and White House press secretary Karine Jean-Pierre told reporters Monday that the Justice Department is an "independent department as it comes to dealing with these types of cases."

Prosecutors warned in a second filing, submitted Monday, that the proposed order from Trump would lead to the public release of discovery material and accused the former president of seeking to use that information to "litigate this case in the media."

"The goal of the defendant's proposed protective order — prejudicial publicity — is antithetical to the interests of justice," Smith's team argued.

Trump has repeatedly denied wrongdoing in the case involving the 2020 election and events leading up to the Jan. 6, 2021, assault on the U.S. Capitol, and has claimed his prosecution aims to harm his now third bid for the White House in 2024.

Lauro told "Face the Nation" on Sunday that he will seek to have the case against Trump dismissed and moved out of Washington, D.C.

The special counsel, meanwhile, proposed Thursday that a trial begin Jan. 2, 2024, and estimated prosecutors will need between four and six weeks to make their case. Trump and his lawyers have until Aug. 17 to put forth their own date for a trial.

If Chutkan agrees to the schedule suggested by prosecutors, the trial would begin two weeks before the Iowa caucuses on Jan. 15, the first contest in the 2024 presidential election cycle. It would also get underway just days before the three-year mark of the Jan. 6 attack on the Capitol.

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