U.S. District Court Judge Tanya Chutkan at turns sided with the Justice Department and attorneys for former President Trump in a battle over how much he can publicly discuss evidence as he faces trial for seeking to overturn the 2020 election.
Chutkan hashed out a deal that gives Trump more latitude to discuss evidence gathered in the Jan. 6 case while blocking the sharing of sensitive discovery such as witnesses testimony gathered in the case.
The coming protective order in the case also follows recommendations from DOJ that limit the sharing of discovery with “volunteer attorneys” – a prospect Chutkan noted could greenlight the sharing of evidence in the case with the same group of attorneys that advised Trump ahead of Jan. 6 and are now listed as co-conspirators in the case.
“Mr. Trump, like every American, has a First Amendment right to free speech, but that right is not absolute. In a criminal case such as this one, a defendant’s free speech is subject to release conditions … and must yield to the orderly administration of justice,” she said.
“I don’t want this order to be over-inclusive. I don’t want to issue a blanket protective order over information that is not sensitive.”
She warned the parties to take “special care” in any statements they make about the case, saying she would ensure there was no “carnival atmosphere of unchecked publicity and trial by media,” a nod to language from an earlier Supreme Court case.
“The more a party makes inflammatory statements about this case … the greater the urgency will be that we proceed to trial quickly,” Chutkan said.
Chutkan went through competing protective orders paragraph by paragraph, repeatedly sidestepping any effort to interject politics into the debate.
Trump attorney John Lauro accused prosecutors of wanting to implement the conditions to stymie Trump’s presidential campaign, calling them “oppressive” and a “contempt trap” at one point.
“The existence of a political campaign is not going to have any bearing on my decision. I intend to keep politics out of this,” Chutkan said.
“I cannot and I will not factor into my decisions the influence it will have on a political campaign on either side.”
The hearing came after both sides volleyed over the extent Trump should be able to discuss evidence in the case, with attorneys for the Justice Department fearing Trump’s plan would allow him to reveal key evidence without context, which could intimidate witnesses and impact their safety while tainting a future jury pool.
“The defendant’s proposal is specifically tailored to try this case in the media,” DOJ prosecutor Thomas Windom said, adding that Trump was seeking a “blessing” for free rein to discuss evidence only provided to help him establish a defense.
He noted that Trump has already posted about several witnesses in the case.
Trump’s attorneys on the other hand sought an order that would allow the former president to discuss a wide variety of evidence gathered in the case — including sharing direct testimony from witnesses offered before the grand jury — while also sharing discovery with any volunteers or unpaid consultants working with the defense team.
“Truly, this kind of blanket order is extraordinary,” Lauro said during the proceedings.
“President Trump has the right to respond and speak about these issues.”
Chuktan ultimately determined DOJ didn’t show good cause for drafting a broad order that would restrict all of the materials prosecutors hand over.
But in the end, it may make little difference. DOJ said the majority of evidence in the case would be considered sensitive, leaving it out of bounds for Trump to discuss publicly.
The evidence is expected to be extensive. Windom said the first production will include 11.6 million page, though he said it was “extraordinarily well organized.”
“I can just imagine your motion for a trial date,” responded Chutkan, joking to Trump’s attorneys.
But after Trump’s initial win, Chutkan largely sided with DOJ, adopting their definition of what would constitute sensitive discovery to carve out much of the witness testimony the former president’s team expressed an interest in sharing.
“I’m finding it very difficult to envision a former president engaged in a political campaign talking about witnesses who may not have the kind of protections that he has. I could see the possibility for a lot of problems here,” Chutkan said.
“I can see how in advance of trial making public statements about potential witnesses is going to in and of itself affect the orderly administration of justice and could run afoul of his release conditions.”
The discussion then moved to Trump’s ability to review evidence in the case without his attorneys present, as well as his ability to take notes while reviewing the discovery.
At one point, the Justice Department nodded to conduct from Trump that spurred his prosecution for improperly handling classified materials at Mar-a-Lago, saying he could not be trusted with documents in the case.
“Defense counsel has trust in the defendant that the government does not,” Windom said, adding later, “He has shown a tendency to desire to hold on to material which he should not.”
Lauro protested, saying with Trump’s attorneys were spread thin across his multiple cases as well as their other clients and do not have time to “literally babysit” the former president while he reviews evidence.
While Chutkan allowed Trump to review evidence on his own, she barred him from using any electronic devices in the process, including photocopiers.
Chutkan said she would issue the protective order shortly based on her rulings at the hearing.
Updated at 1:17 p.m.