Fight over Trump Jan. 6 secrecy order marks start of race to trial (2023)

U.S. District Judge Tanya S. Chutkan said Trump would not be required to attend the hearing over special counsel Jack Smith’s request Friday for a protective order. Prosecutors explained that they wanted to immediately turn over evidence to speed the defense’s trial preparations, but were concerned in part over Trump’s history of posting on social media about “witnesses, judges, attorneys and others” associated with cases against him, including one that day that said: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

But Trump’s defense team complained the government’s proposed limits were overbroad and would limit the First Amendment rights of President Biden’s main political opponent.

“The government requests the Court assume the role of censor and impose content-based regulations on President Trump’s political speech that would forbid him from publicly discussing or disclosing all non-public documents produced by the government,” attorneys Todd Blanche and John Lauro wrote in a 13-page motion.

Prosecutors shot back that Trump this weekend attacked his former vice president and potential government witness Mike Pence, while one of his attorneys discussed the case on five Sunday talk shows. The prosecution turns over evidence “to afford defendants the ability to prepare for and mount a defense in court — not to wage a media campaign,” Assistant U.S. Attorney Thomas P. Windom replied, noting that court rules bar defense counsel from feeding pretrial publicity that could prejudice jurors.

The skirmish over the typically routine matter of a protective order is an early sign of how vigorously both sides will argue over how quickly the case should head toward trial. Prosecutors have indicated they want to try Trump as soon as possible, while Trump’s team is likely to push for delays at every step.

Looming over the fight is the 2024 presidential election calendar, the assumption that the Justice Department would prefer to see a trial wrapped up before the GOP presidential nomination convention next summer, and Trump’s stated desire to postpone trial in a separate special counsel prosecution in Florida until after the November 2024 election.

By charging Trump alone, “Smith has brought a streamlined case that gives him the best chance of getting to trial before the 2024 election,” former federal prosecutor and Georgetown University law professor Randall D. Eliason wrote on his legal blog, explaining that adding more defendants would have meant more delays.

“The case is built for speed. It should in fact go to verdict well before Nov 2024,” Harry Litman, a former federal prosecutor and Justice Department official who teaches law and political science at UCLA and UC San-Diego, added on the social media platform formerly known as Twitter.

At Trump’s arraignment last week, Chutkan put the question front and center, directing both sides this week to begin arguing when the trial should take place, and how long it will take ahead of an Aug. 28 hearing.

In doing so, Chutkan teed up a battle similar to one decided earlier this summer by U.S. District Judge Aileen Cannon, her Florida counterpart overseeing Trump’s criminal case for allegedly mishandling classified papers and obstruction.

Smith has said his prosecutors will seek a speedy trial in both cases, and earlier this summer asked Cannon to set a December trial date in the documents case.

Delay is often any defense attorney’s best friend, however, and Trump’s attorneys pushed back. Blanche and Lauro replied in the Florida case that moving that fast “would result in a miscarriage of justice.” In arguments likely to be repeated before Chutkan, they told Cannon that holding a trial during the election contest would be unfair to Trump, limit his ability to campaign, and add to the burden of preparing for two other trials he is facing: an unrelated criminal trial in Manhattan in March, and a civil trial, also in New York, scheduled to begin in October, over fraud allegations leveled by the state’s attorney general.

Cannon split the difference, penciling in a May 20 trial date — although that could depend on whether unexpected hitches in handling of classified evidence or legal arguments over evidence and case precedent cause delays.

That would seem to make February or April the most promising months for a trial in Washington, D.C., on the election case. However, the March window could open up as well, after Manhattan District Attorney Alvin Bragg — whose office is prosecuting Trump on state charges of falsifying business records in connection with hush money payments during the 2016 election — recently signaled an openness to letting federal prosecutors go first.

“I’ve been a federal prosecutor or a state prosecutor, and now obviously local. In matters like this, judges will confer and I take a very broad lens on justice, will obviously follow the directives of our court, but won’t sit on ceremony in terms of what was charged first or things like that,” Bragg said in a WNYC interview.

Monday’s filing was triggered by a weekend dispute over proposed rules that the former president and his legal team must follow in handling evidence turned over by the government, which itself was the product of prosecutors’ desire to hand over much of it immediately.

Such protective orders can be technical, but are routinely approved by judges to protect witnesses and government investigative methods and priorities by limiting evidence sharing by the defense to people authorized by the court. They are different from “gag orders,” which would limit what Trump and his legal team could say publicly.

Prosecutors asked Chutkan late Friday evening to issue an order, but Trump’s defense objected, accused the government of waiting until after hours that day to present a “take-it-or-leave-it” ultimatum, and urged Chutkan not to “encourage such improper tactics by the government in the future.”

Attached emails showed that prosecutors, beginning the evening after Trump’s indictment, proposed that his side accept the same secrecy rules as he did in his Florida case, and indicated more than once that the government’s goal was “in the interest of getting you discovery as soon as possible.”

“The Government stands ready to press send on a discovery production. The defendant is standing in the way,” Windom wrote to the court.

Prosecutors warned that Trump’s statements could have a “harmful chilling effect on witnesses” and the administration of justice, proposing that he not disclose government-provided materials to anyone outside his legal team, potential witnesses, their lawyers, or others approved by the court.

Trump’s defense did not contest secrecy for grand jury, sealed orders and search warrant materials, but sought to widen disclosure to include “volunteer attorneys” or others not directly employed by his lawyers.

Blanche and Lauro also objected to the wholesale restriction of other materials such as interview reports that did not threaten witness security, and asked the judge for the freedom to cite sensitive information in public court filings or hearings without prior approval as long as it was redacted.

Shayna Jacobs in New York contributed to this report.