Why a Trump protective order in the Jan. 6 case is not a gag order

Former President Trump’s attorneys are battling with the Justice Department over a protective order in his criminal case stemming from efforts to overturn the 2020 election and the Jan. 6 Capitol riot.

The proposal would not limit Trump’s ability to discuss the prosecution generally, making it distinct from a gag order, which would restrict Trump’s ability to speak about the case outside of court filings and hearings.

But Trump has claimed prosecutors’ proposal, which would place rules on how Trump can access and discuss evidence he receives in preparing his defense, would violate his First Amendment rights.

A “gag order” refers to a judge barring attorneys, parties or witnesses from discussing a case with the public, according to Cornell University’s Legal Information Institute. 

“The special counsel is not seeking a gag order,” said Barbara McQuade, a former U.S. attorney and current law professor at the University of Michigan. “He is instead seeking a protective order that would prevent the public disclosure of discovery material such as evidence, witness grand jury testimony and interviews.” 

Prosecutors have been seeking a protective order before turning over any evidence to Trump and his legal team. Resolving the battle could impact the case timeline: Trump’s attorneys have said they can’t suggest a trial date until seeing the scope of prosecutors’ evidence.

On Friday, special counsel Jack Smith told the judge overseeing Trump’s Washington, D.C. criminal case that the government is prepared to provide the former president’s attorneys with a “substantial amount of discovery,” including some to which “the defendant is not entitled at this stage of the proceedings.”

But to do so, the judge must stop Trump from engaging in “improper dissemination or use of discovery materials, including to the public,” Smith said. 

The DOJ special counsel argued that Trump has previously issued social media statements regarding witnesses, judges, attorneys and others linked to his legal matters. He cited an ambiguous but forceful post Trump made Friday on Truth Social that read: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

“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,” Smith wrote in the filing. 

Trump’s attorneys hit back, accusing the government of trying to hamper Trump’s First Amendment rights while he runs for president. His attorneys argued that prosecutors are working for a Justice Department under President Biden, whom they dubbed Trump’s “primary political opponent.” 

In response, Smith accused Trump’s attorneys of proposing an order designed to “allow (Trump) to try this case in the media rather than in the courtroom.”

McQuade said protective orders like the one requested by the government are “routinely granted” in criminal cases and will likely be granted in Trump’s case.

“Discovery is intended to help the defendant prepare his defense for trial, not to enable him to try the case in the media,” she said. 

The “broad language” proposed by Trump’s attorneys might allow his team to share discovery material with any lawyer who may be assisting Trump as opposed to his retained defense team, she added. 

“That would mean that lawyers like Rudy Giuliani and Sidney Powell could receive the discovery material,” McQuade said. “Because they are described as co-conspirators, such language would compromise the integrity of any ongoing investigations.”

The judge overseeing Trump’s case indicated she plans to hold a hearing this week on the protective order request and asked the parties to provide possible times

Prosecutors said they were available anytime over the next three days. Trump’s team noted one of his attorneys, Todd Blanche, will be in Florida on Thursday for a proceeding in the classified documents case, asking for a hearing on Monday afternoon or Tuesday so he could also attend.

Trump’s Jan. 6 case wouldn’t be the first time the former president is put under a protective order in his criminal cases. Judges previously approved such orders for his classified documents case in federal court in Florida and his hush money case in New York state court.

During Trump’s arraignment in the hush money case, prosecutors and the former president’s attorneys indicated they were close to reaching an agreement on a protective order.

But in the weeks following, talks broke down. Trump’s attorneys pushed back against Manhattan prosecutors’ proposal, although the judge ultimately entered a protective order.

In the classified documents case, Trump did not object to a protective order.

–Updated at 2:34 p.m.