Arkansas Democrat-Gazette

Lawyers tangle in Trump case

Protective order bid at issue

- COMPILED BY DEMOCRAT-GAZETTE STAFF FROM WIRE REPORTS

Donald Trump’s legal team told a judge overseeing the election conspiracy case against him Monday that prosecutor­s’ proposed protective order aimed at preventing the public disclosure of evidence is too broad and would restrict his First Amendment rights.

Lawyers for the early front-runner in the 2024 Republican presidenti­al primary said the judge should impose a more limited order that would bar the public release only of materials deemed “sensitive” — such as grand jury documents — rather than all evidence handed over by the government in the case accusing Trump of conspiring to overturn his 2020 election loss.

Prosecutor­s with special counsel Jack Smith’s team quickly countered with their own filing accusing Trump of objecting to their proposal because he wants to be able to use the government’s evidence to “try the case in the media rather than in the courtroom.”

U.S. District Judge Tanya Chutkan said later Monday that she would hold a hearing on the dueling proposals, and that Trump would not have to attend.

Prosecutor­s asked Friday for the protective order, which would impose rules on what Trump and his defense team can do with evidence shared by the government as they prepare for trial in the case unsealed last week.

Smith’s prosecutio­n team has said a protective order — not unusual in criminal cases — is particular­ly important in Trump’s case because of his penchant for using social media. They have expressed concern that Trump could improperly share sensitive case informatio­n online that could have a “harmful chilling effect on witnesses.”

In their filing Friday seeking the order, prosecutor­s included a screenshot of a post from Trump’s Truth Social platform that same day in which he wrote, in all capital letters, “If you go after me, I’m coming after you!”

Trump’s lawyers said that citing that post to claim there’s a danger Trump might publish grand jury informatio­n was “a provocativ­e claim when searching for headlines, perhaps, but one that falters under minimal scrutiny.”

The former president’s legal team said his post was

“generalize­d political speech” and had nothing to do with the case. A Trump spokespers­on said last week that the post was in response to “dishonest special interest groups and Super PACs.”

Trump’s lawyers, who have characteri­zed the case brought by special counsel Jack Smith as an attack on his right to free speech, told the judge that the need to protect sensitive informatio­n about the case “does not require a blanket gag order over all documents produced by the government.”

“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights,” Trump’s lawyers wrote.

“Worse, it does so against its administra­tion’s primary political opponent, during an election season in which the administra­tion, prominent party members and media allies have campaigned on the indictment and proliferat­ed its false allegation­s.”

Trump’s lawyers accused President Joe Biden of trying to capitalize on the indictment in posting what they called a “thinly veiled reference” to Trump’s prosecutio­n just hours before Trump’s court appearance last week. They included a screenshot in their court filing of a tweet from Biden’s campaign account, which included a video of the president drinking from a mug emblazoned with “Dark Brandon” — a meme featuring Biden with lasers for eyes — and the caption: “A cup of Joe never tasted better.”

Trump’s lawyers on Saturday had asked for an extra three days to respond to prosecutor­s’ request for the protective order, saying they needed more time for discussion. But Chutkan, who was nominated to the bench by former President Barack Obama, swiftly denied that request.

Prosecutor­s said that they are ready to hand over a substantia­l amount of evidence to Trump’s legal team and that much of it includes sensitive and confidenti­al informatio­n.

The prosecutor­s’ proposed order seeks to prevent Trump and his lawyers from disclosing materials provided by the government to anyone other than people on his legal team, possible witnesses, the witnesses’ lawyers or others approved by the court. It would put stricter limits on “sensitive materials,” which prosecutor­s said would include grand jury witness testimony and materials obtained through sealed search warrants.

Prosecutor­s noted in court papers Monday that Trump has made several comments about the case on social media even since they filed their protective order request. They referenced one Trump post about former Vice President Mike Pence — a potential witness in the case — in which Trump called Pence “delusional.”

Prosecutor­s said Trump’s proposal aims to allow for the release of transcript­s and audio recordings of witness interviews conducted outside the grand jury process. “The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceeding­s. The defendant has proposed an unreasonab­le order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail,” prosecutor­s wrote.

Trump has denied any wrongdoing in the case, as well as another prosecutio­n brought by Smith that accuses him of illegally hoarding classified documents at his Mar-a-Lago estate in Palm Beach, Fla.

He has characteri­zed all the cases against him as an effort to take down his 2024 campaign. His legal team has indicated it will argue he had relied on the advice of attorneys around him in 2020 and that Trump had a right to challenge an election he believed had been stolen.

CLASSIFIED FILES CASE

The federal judge presiding over the case involving Trump’s handling of classified documents is reviewing the “legal propriety” of the government’s using grand juries in both Florida and Washington to build its case against the former president.

U.S. District Judge Aileen Cannon, a Trump appointee, on Monday ordered both sides to file briefs on how Smith’s team used a grand jury in Washington to continue gathering evidence after it had already indicted Trump in Florida using a grand jury in Miami.

The involvemen­t of multiple grand juries is an issue raised by Trump’s lawyers as a potential line of attack against the prosecutio­n because there are rules that limit how and where the government can use them. Cannon’s order puts Smith on the spot early on to explain the process.

Special counsel spokespers­on Peter Carr said in an email that Smith’s office “will respond at the appropriat­e time through a filing with the court.”

Cannon’s order was prompted by a request by Smith’s team last week for a hearing on whether there were conflict of interest problems related to Stanley Woodward, a lead attorney for Trump’s co-defendant and personal aide Waltine “Walt” Nauta.

Cannon rebuffed an attempt by prosecutor­s to file more informatio­n about the conflict issue under seal, saying they’d failed to provide a “sufficient legal or factual basis.” She gave Nauta until Aug. 17 to respond, and said the government should reply back by Aug. 22. Trump’s lawyers can also weigh in by Aug. 17.

Woodward declined to comment. A Trump spokespers­on didn’t immediatel­y respond to a request for comment.

In its motion last week, the government confirmed it continued to use grand juries in Florida and Washington after indicting Trump on June 8 “to investigat­e further obstructiv­e activity.”

Trump and Nauta are charged with trying to interfere with efforts by federal officials to retrieve classified documents after Trump left the White House. Trump separately is charged with mishandlin­g state secrets. He and Nauta have pleaded not guilty.

A grand jury in Florida returned a new version of the indictment on July 27 that added more obstructio­n counts and an additional co-defendant, Carlos De Oliveira, an employee at Trump’s Mar-a-Lago resort. De Oliveira also pleaded not guilty.

Woodward has represente­d at least seven other people besides Nauta who were questioned in the classified documents probe, including three potential trial witnesses, according to the government. The potential witnesses aren’t named — prosecutor­s said that’s what they were filing under seal — but were described as the director of informatio­n technology at Mar-a-Lago and two people who worked for Trump while he was president and after he left office.

According to the government, the Mar-a-Lago IT director has a new lawyer, but prosecutor­s said that doesn’t fully resolve potential conflicts with Woodward staying in the case. Prosecutor­s have alleged that Trump, Nauta and De Oliveira conspired to try to have that employee delete security footage at Mara-Lago after the government asked for it.

Woodward continues to represent the other two potential witnesses, the government told Cannon.

Lawyers can represent multiple clients in the same investigat­ion, but not at the expense of one client’s interests. A client can agree to keep their lawyer and waive raising any conflict issues later, but the judge can investigat­e to make sure the person’s rights are protected and has the power to reject a waiver.

The government has asked for that inquiry when it comes to Woodward’s representa­tion of Nauta.

The case is US v. Trump, 23-cr-80101, US District Court, Southern District of Florida (West Palm Beach).

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