WASHINGTON — Lawyers for Donald Trump and federal prosecutors are appearing in a federal courtroom Friday morning to discuss what restrictions could be imposed before a trial on charges related to the 2020 election, including limits on what information the former president can share about the case.
The 10 a.m. ET hearing before U.S. District Judge Tanya Chutkan is taking place before special counsel Jack Smith’s team turns over discovery in a case that the government would like to set for trial in January. Chutkan said she plans to rule on the restrictions as soon as possible after the hearing and that the protective order will only apply to “sensitive” materials, not all discovery, as the government had requested.
“Mr. Trump, like every American, has a First Amendment right to free speech. But that right is not absolute,” Chutkan said.
Trump, at a high-profile hearing last week, pleaded not guilty to the third criminal indictment against him this year. He is charged in this case, which centers on efforts to overturn the results of the 2020 election, with conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, obstruction, and conspiracy against the right to vote and to have one’s vote counted. A federal grand jury in Washington returned the indictment Aug. 1.
Friday’s hearing centers on a protective order requested by prosecutors that would set rules about what information Trump or his attorneys could share publicly before the government turns over discovery materials. Citing Trump’s “statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him” — particularly a Truth Social post that said, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” — Smith’s office said sharing, for example, grand jury transcripts “could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case.”
Trump’s team has argued that the government was seeking “to restrict First Amendment rights,” though, as a matter of common practice, criminal defendants’ constitutional rights are routinely restricted. Trump’s lawyers argued that Smith’s office “requests the Court assume the role of censor and impose content-based regulations on President Trump’s political speech.”
In Friday’s hearing, Trump lawyer John Lauro noted the uniqueness of a case involving a former president and current candidate for president brought by the administration of his likely general election opponent, President Joe Biden. “We have to face the fact that we’re in uncharted waters here. … His opponent has the Justice Department bringing criminal charges against him,” Lauro said.
Lauro argued that the government’s proposed protective order would be beneficial to the Biden campaign because it would stifle Trump’s political speech.
Chutkan rejected the political argument. “This is a criminal trial. … I cannot and I will not factor into my decisions the effect it’s going to have on a political campaign for either side,” she said.
“I intend to ensure that your client is afforded all the rights he’s entitled to. The existence of a political campaign is not going to have any bearing on my decision,” Chutkan said, later adding: “I intend to keep politics out of this.”
Thomas Windom, a prosecutor for Smith’s office, argued that a protective order is needed to protect witnesses, ensure fair adjudication of the case in the courtroom and “prevent the use of any material produced in discovery from harming the jury pool.”
The defense is “asking for the court’s blessing to use criminal discovery for political purposes,” Windom said.
Chutkan reiterated that she has to weigh Trump’s First Amendment rights to speech, noting that Trump is already bound by his conditions of release from harassing or intimidating witnesses.
After a discussion about Trump possibly posting discovery materials online, Chutkan ruled that witness interview transcripts will be considered sensitive materials subject to the protective order.
“Your client’s defense is supposed to happen in this courtroom, not on the internet. And to the extent your client wants to make statements on the internet they always have to yield to witness security and witness safety,” Chutkan said.
Lauro assured Judge Chutkan that “President Trump will scrupulously abide by his conditions of release,” which includes not doing anything that could be construed as harassing or intimidating witnesses.
Lauro argued that because of Trump’s political campaign, he might need to address witness testimony. Former Vice President Mike Pence, who is running against Trump in 2024, testified before the special counsel grand jury in April.
“He is a criminal defendant,” Chutkan said of Trump. “He is going to have restrictions like every other defendant.”
Chutkan said the protective order will require defense attorneys to review any notes Trump takes while looking at sensitive materials to make sure they don’t contain any witness’ personal identifying information.
“He has shown a tendency to hold onto material which he should not,” Windom said.
The trial is still many months away. Smith’s team proposed Thursday that jury selection start in December and that a trial get underway just after the new year.
A Jan. 2 trial date, Smith’s team wrote, “would vindicate the public’s strong interest in a speedy trial — an interest guaranteed by the Constitution and federal law in all cases, but of particular significance here, where the defendant, a former president, is charged with conspiring to overturn the legitimate results of the 2020 presidential election, obstruct the certification of the election results, and discount citizens’ legitimate votes.”
Lauro, previewing potential arguments at trial, said on NBC’s “Meet the Press” over the weekend that Trump may have committed “a technical violation of the Constitution” but did not violate criminal laws.
