Lawyers tangle in Trump case
Protective order bid at issue
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).