Judge warns of restraints to what evidence Trump can talk about, agrees to limited protective order

Published 4:57 pm Friday, August 11, 2023

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WASHINGTON — The federal judge overseeing the election conspiracy case against Donald Trump warned Friday that there are limits on what the former president can publicly say about evidence in the investigation as he campaigns for a second term in the White House.

Presiding over her first hearing for the case, U.S. District Judge Tanya Chutkan in Washington heard arguments on how to structure a protective order for evidence turned over by prosecutors, a common step in criminal cases. But she also used the forum to address the case’s unprecedented mix of legal and political concerns.

Chutkan stressed that political considerations wouldn’t guide her decisions. She also repeatedly said Trump was subject to the court’s rules as a defendant before trial even as he runs for the 2024 Republican nomination for president.

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“Your client’s defense is supposed to happen in this courtroom, not on the internet,” Chutkan told Trump’s lawyers.

The judge said that the more anyone makes “inflammatory” statements about the case, the greater her urgency will be to move the case more quickly to trial to prevent witness intimidation or jury pool contamination. She noted that “arguably ambiguous statements” could be construed as intimidation or harassment of potential witnesses.

“I will take whatever measures are necessary to safeguard the integrity of the case,” she said.

A prosecutor said the Justice Department was prepared to turn over an initial batch of more than 11 million pages of evidence to Trump’s lawyers in the first criminal case seeking to hold Trump accountable for his efforts to cling to power before an angry mob of supporters fueled by his election lies attacked the Capitol on Jan. 6, 2021.

Chutkan agreed with Trump’s defense team on a looser version of a protective order barring the public release only of materials deemed sensitive, like grand jury materials. But prosecutors consider most of the evidence in the case to be sensitive, and she largely sided with the government on what will get that label and protections.

Thomas Windom, a top deputy to special counsel Jack Smith, also argued Trump needs safeguards when he reviews case materials. In another sign of the unique circumstances facing the former president, Windom quipped about the indictment Trump faces in Florida after classified materials were discovered in his Mar-a-Lago residence.

“He has shown a tendency to hold on to material to which he should not,” Windom said.

The protective order became an early flashpoint in the case as prosecutors last week called the judge’s attention to a post on Trump’s social media platform, Truth Social, including a screen shot where he said he would be “coming after” those who “go after” him.

They warned Trump, who has railed against prosecutors and the judge online and during campaign events, could improperly share sensitive evidence that could have a “harmful chilling effect on witnesses.”

Prosecutors had wanted a broad order that sought to prevent the public release of all evidence they hand over to Trump’s defense as they prepare for trial, instead limiting evidence to a small circle of lawyers and possible witnesses.

“The defendant has broadcast their strategy, and that is to not try this case in the courtroom,” Windom said.

But the defense argued the government’s proposed order went too far and would restrict his free speech rights, especially as he runs for president. They argued that the need to protect sensitive information “does not require a blanket gag order over all documents produced by the government.”

John Lauro, an attorney for Trump, raised the example of former Vice President Mike Pence — who is both competing against Trump for the Republican nomination and a potential witness in the case before Chutkan. Trump has repeatedly attacked Pence for being disloyal.

“President Trump has the ability to respond fairly to political opponents,” Lauro said.

Trump, the early front-runner in the GOP presidential primary, says he is innocent of the charges, including conspiracy to defraud the United States. He has portrayed investigations of him as politically motivated.

Prosecutors say a substantial amount of evidence they’re ready to turn over to Trump’s legal team includes sensitive and confidential information — like transcripts from the grand jury that investigated the case and evidence obtained through sealed search warrants. Grand jury proceedings are secret.

“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,” prosecutors wrote in their motion.

Sensitive material that will be covered by the protective order include documents related to witness interviews and material obtained from other governmental entities.

The case unsealed last week comes as Trump faces two other criminal cases and tries to reclaim the White House.

Trump has pleaded not guilty to four felony counts, including conspiracy to defraud the U.S. and conspiracy to obstruct Congress’ certification of Democrat Joe Biden’s electoral victory. The charges could lead to a lengthy prison sentence in the event of a conviction, with the most serious counts calling for up to 20 years.

Smith’s team has indicated that it wants the case to move to trial swiftly, and this week it proposed a Jan. 2 trial date. Trump is already scheduled to stand trial in March in a New York case stemming from hush money payments made during the 2016 campaign and in May in another case brought by Smith accusing the former president of hoarding classified documents at his Mar-a-Lago estate in Palm Beach, Florida.

Magistrate Judge Bruce Reinhart in June imposed a similar protective order in the Florida case that prohibits Trump and his legal team from publicly disclosing evidence turned over to them by prosecutors without prior approval.