Special counsel Jack Smith filed a motion Tuesday asking a judge to conceal the identity of prospective jurors in Donald Trump’s election interference case, citing the former president’s recent attacks on court personnel.
And a second motion noted Trump has yet to make good on his plans to rely on an advice of counsel defense at trial, with prosecutors arguing the former president will be required to turn over additional evidence to back such a claim, including all his communications with his attorneys.
Smith’s team cited “the particular sensitivities of this case, stemming both from heightened public interest and the defendant’s record of using social media to attack others” in asking Judge Tanya Chutkan to shield the identities of jurors. It also asks her to arrange for their “discrete” entry and exit from the courthouse.
The requests come a week after a New York judge issued a gag order barring Trump from attacking court staffers after the former president after he complained a clerk for the judge was Senate Majority Leader Chuck Schumer’s (D-N.Y.) “girlfriend.” Schumer has said he does not know the clerk.
It also comes as Smith has asked Chutkan to impose a “narrow” gag order on Trump that would bar him from attacking court personnel and even prosecutors, as well as making disparaging comments about witnesses, something they argue could influence the case.
In preparing to select the jurors who will weigh the unprecedented case, Smith’s team is pushing to use juror surveys and allow attorneys to conduct research on those who may be selected, something they say could help prevent further litigation.
But the order they proposed would bar any attempts to follow the group on social media or gain access beyond what they chose to publicly share.
“The Court should make clear to the parties, however, that research beyond what is publicly available—especially if it results in any kind of contact with a potential juror—would infringe upon potential jurors’ privacy interests,” Smith’s team wrote.
“The parties should also be precluded from any form of investigation—whether online or otherwise— that could reasonably be perceived as vexatious or harassing.”
The filing notes that Trump shared a photo of the clerk with Schumer to his more than 6 million followers on social media.
“Given that the defendant—after apparently reviewing opposition research on court staff—chose to use social media to publicly attack a court staffer, there is cause for concern about what he may do with social media research on potential jurors in this case. It is therefore necessary for the Court to employ the limited restrictions described above,” prosecutors wrote.
In the second motion, Smith’s team asked for Chutkan to push Trump to formally notify the court of his plans to launch an advice of counsel defense — and share the accompanying evidence such a defense requires.
“When a defendant invokes such a defense in court, he waives attorney-client privilege for all communications concerning that defense, and the Government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing,” Smith’s team wrote.
Trump, in various media appearances, along with his attorneys, have argued the former president was relying on the advice of his attorneys in rolling out a multi-pronged effort to stop the transfer of power after his election loss.
Smith’s team nodded to this defense in the indictment – noting the numerous advisors and lawyers to Trump who said there was no widespread fraud and who contested the advice from the handful of attorneys arguing Trump should seek to block the certification of the vote.
The request comes after Trump has filed numerous motions seeking to delay various deadlines in the case.
Prosecutors – who note Trump’s team opposes their motion – argue that a last-minute rollout of a defense relying on claims that Trump was simply following the advice of his attorneys would kick back other deadlines in the case.
“Waiting until the eve of trial—or, worse, when jeopardy attaches—to raise an advice-of-counsel defense risks causing substantial disruption and delay, particularly in this case given the number of attorneys involved,” prosecutors write.
Prosecutors note that the Federal Rules of Criminal Procedure do not address this specific defense but argue the judge has the authority to force Trump to make a formal notice.
Trump, however, is already required to turn over evidence in the case by Dec. 18, with prosecutors arguing they need time to address the claim – including the possibility it may not be cleared as a defense at trial.
“If the evidence disclosed by the defendant shows that the advice-of-counsel defense is unavailable as a matter of law, in fairness the Government should be permitted to raise
that matter in advance of trial before questioning, evidence, and argument,” they argue.
“Given his extensive public statements, the defendant cannot complain that formal notice will prematurely or unfairly reveal a hidden trial strategy.”
Updated at 1:23 p.m.