Judge Schedules Justice Department’s ‘Protective Order’ Hearing This Friday

Special counsel Jack Smith delivers remarks on a recently unsealed indictment against former President Donald Trump, in Washington on June 9, 2023. Chip Somodevilla/Getty Images

The U.S. District Judge Tanya Chutkan, overseeing the Jan. 6 indictment charges filed by Special Counsel Jack Smith against former president Donald Trump, has ordered for both parties to attend the protective order proposal hearing at 10:00 a.m., Aug. 11, 2023.

Judge Chutkan had earlier called on the prosecutor and the defendant to agree on a suitable date and time on or before Aug. 11. While the Department of Justice (DOJ) gave its availability “at any time on August 9, 10, or 11,” Trump attorneys could not find a suitable time during the period.

They had replied that President Trump will not appear, but he would prefer if “both his counsel John Lauro and Todd Blanche” were present at the hearing. And the only suitable time for both attorneys to be present would be Aug. 14, after 12:00 p.m. or Aug. 15.

In the latest Aug. 8 Minute Order, Judge Chutkan said that Mr. Trump’s appearance is waived but the hearing is scheduled for Friday.

The hearing is regarding a protective gag order proposal brought forth by Mr. Smith. The DOJ said that Donald Trump intended to try the Jan. 6 indictment case in the media, and broadly in the public sphere, rather than the courtroom as they pushed for the order last week.

In a court filing (pdf) on Monday, the DOJ detailed instances of Trump attorneys appearing on television to discuss the case, particularly pertaining to the protection order.

“The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign. The Court should instead enter the Government’s proposed order.”

The DOJ response was filed against Mr. Trump calling for a more open trial.

When the government proposed the protective order, Trump attorneys argued that only certain “sensitive” elements of the case need to be restricted—honoring the “rights of President Trump and the public to free speech and an open proceeding.”

Trump attorneys argue that, this way, the government could fulfill what the protective order intends to achieve—“expedite the flow of discovery” and protect sensitive material.

However, simply following the proposed government order would be “overbroad.”

“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights.

“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,” said the filing (pdf).

DOJ Seeking Closed Case

Regarding Mr. Trump’s call to “publicly disseminate” case materials, the government stated in the Monday filing that “there is no right to publicly release discovery material, because the discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion.”

The DOJ insisted that discussing “discovery materials” openly would be “contrary to the general principle against pretrial publicity” and “could prejudice the jury.”

Hence the government requested the court should not make accommodations to grant Mr. Trump’s ability to disseminate even snippets of the court process “no matter how short” it is.

“Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court,” said the DOJ.

Trump’s Stance on Gag Order

Mr. Trump argued that the prosecutor and the opposition had ample access to the media, while pressing for Mr. Trump to remain silent.

In his filing, Mr. Trump indicated that Mr. Smith, who had filed the initial indictment charges, and subsequent proposal for the protective order spoke publicly regarding the case to the media on Aug. 1.

Besides that, Sen. Chuck Schumer (D-N.Y.) issued a statement related to the Jan. 6 indictment case, repeating the prosecutor’s allegations. Glenn Kirschner, a legal analyst for MSNBC, talked about the indictment against Mr. Trump.

Furthermore, President Joe Biden had also allegedly jumped into the issue.

“President Biden has likewise capitalized on the indictment, posting a thinly veiled reference to his administration’s prosecution of President Trump just hours before arraignment,” said the filing, citing a social media video post, which had the president drinking from a cup with a caption that read, “A cup of Joe never tasted better.”

Former President Donald Trump shakes hands with South Carolina Gov. Henry McMaster (R) before speaking as the keynote speaker at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party in Columbia, S.C., on Aug. 5, 2023. Melissa Sue Gerrits/Getty Images

Trump’s attorneys said, “Indeed, President Biden promised from the outset that his administration would ensure President Trump ‘does not become the next President again,’ adding an unprecedented political dimension to this prosecution,” citing a speech from Mr. Biden in 2022.

All these circumstances, including the fact that the DOJ “waited over two-and-a-half years to seek this indictment, during an election cycle in which President Trump is the leading candidate” should convince the court not to grant the government the proposed protective order, argued the attorneys representing Mr. Trump.

The order offends both the “First Amendment” and Rule 16, which “places no express limits on the purposes for which discoverable material can be used.”

The attorneys reiterated that they are not seeking full public disclosure, such as for grand jury material.

“However, the need to protect that information does not require a blanket gag order over all documents produced by the government. Rather, the Court can, and should, limit its protective order to genuinely sensitive materials—a less restrictive alternative that would satisfy any government interest in confidentiality while preserving the First Amendment rights of President Trump and the public,” said Mr. Trump.