Judge says only ‘sensitive’ material is covered by a protective order, then agrees with the prosecution’s definition
The federal judge presiding over former President Donald Trump’s 2020 election case has generally favored Trump’s defense attorneys in enforcing a protective order for evidence. However, the judge made an important point on the side of prosecutors by expanding the scope of what qualifies as “sensitive” material warranting defense.
U.S. Special Counsel Jack Smith is overseeing the case regarding Trump’s 2020 election meddling. Trump’s legal team appeared in federal court in Washington, D.C. for their preliminary hearing before District Judge Tanya Chutkan.
During the trial, arguments were presented about the limitations of the evidence in the case. Prosecutors argued in their legal submissions that Trump’s lawyers should be restricted from sharing “sensitive” material with the former president. This category includes recordings and transcripts of conversations between Trump associates and the prosecution, as well as witness testimony before the grand jury. In response, Trump’s lawyers asserted that the government’s request was overly broad and interfered with Trump’s rights under the First Amendment.
In a decision described as “close,” the judge cast doubt on the government’s ability to prove that all the information gathered in the Chutkan case would fall within the defense order. She ruled that only information specifically classified as “sensitive” should be preserved. However, she agreed with the government’s position that every person interviewed by the prosecution could serve as a witness and should be treated sensitively.
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“At the beginning of the trial,” Chutkan commented, “the defendant has the right to speak freely; however, it is important to note that this right is not absolute. Without a protective order, a party has the potential to disclose this information to a wider jury pool.”
Federal prosecutor Thomas Windom stressed on Friday that the restrictions were necessary to prevent “the distribution of inappropriate materials to the general public.”
“In fact, the defendant has expressed an intention to submit any information they deem informative,” Windom informed the judge.
“The defense has publicly discussed their strategy, which is centered on avoiding trial in this very courtroom. Your honor should recognize this,” he urged.
Chutkan concurred with the argument, yet she displayed some reluctance to issue a blanket order. Trump’s attorney, John Lauro, subsequently contended that the government’s request was “unprecedented.”
“We are navigating uncharted territory here, with a defendant engaged in a presidential campaign while simultaneously being targeted by the DOJ with charges,” Lauro expressed.
“The reality of him conducting a political campaign must not supersede the orderly administration of justice,” Chutkan responded. She indicated that Trump might release evidence pertaining to former Vice President Mike Pence’s testimony, for instance, with the intention of undermining his credibility as a witness.
“The defendant’s wish to counter his political adversaries must yield,” Chutkan asserted. “There exist limitations. This is a criminal case, and the imperative for it to proceed in a systematic manner entails that there will be constraints on the defendant’s speech.”
Addressing Lauro, she clarified that the potential impact of a protective order on the presidential campaign did not fall under her purview. “I cannot and will not factor in the repercussions it may have on either side’s campaign while making my decisions,” she affirmed
Trump’s legal team endeavored to convince the judge that the government’s request was overly extensive, potentially preventing Trump from addressing political challenges on the campaign trail without inadvertently violating the protective order.
“Given the current circumstances, every action we take is subject to intense political scrutiny due to the government’s actions,” he remarked. “Equity and fairness must prevail here. They haven’t even clarified the extent of the discovery—whether it’s one terabyte or three terabytes. The presence of an ongoing campaign cannot be ignored.”
Chutkan reassured, “His rights will be upheld. The presence of a political campaign will not influence my decision; I am committed to excluding that from my deliberation.”
While Chutkan eventually aligned with Trump’s defense team by acknowledging that not all evidence gathered by the federal grand jury should be covered by the protective order, she concluded that materials like witness interviews and other “sensitive” elements must be shielded from public view.
“You are blending your client’s defense strategy with his campaign intentions,” she pointed out to Trump’s attorneys. “The former president participated in a political campaign where he discussed possible witnesses, who may not possess the same level of protection that he does.”
“I foresee potential challenges,” she added. “I can anticipate how making statements about potential witnesses prior to the trial could disrupt the orderly progression of justice and potentially breach his release conditions.”
Chutkan also found a middle ground regarding a specific paragraph in the proposed order that stipulated a defense counsel’s presence while Trump reviewed sensitive materials. The defense argued that this requirement would be overly burdensome, considering their workload and that they couldn’t spend hours in the room as Trump reviewed materials.
The judge ruled that Trump could examine materials without a defense attorney present, but she prohibited him from having his phone or any device capable of copying or photographing the materials.
Chutkan, who was appointed by President Obama, has gained a reputation as the “toughest punisher” in cases related to the January 6th Capitol riot. The Associated Press reported that she has consistently taken a stringent stance against defendants in these cases compared to other judges in Washington’s federal trial court. The Justice Department has pursued over 800 cases, marking the largest prosecution effort in its history.
Chutkan has imposed harsher sentences than what the DOJ sought in seven instances. In four cases where the DOJ didn’t request jail time, Chutkan handed down prison sentences ranging from 14 to 45 days. For all 11 riot defendants who appeared before her, she ordered them to be incarcerated.
Trump is facing charges including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding, and conspiracy against rights. These charges stem from the investigation into the 2020 election interference and the January 6, 2021, Capitol Riot led by special counsel Jack Smith.
The leading contender for the 2024 GOP nomination has entered a not-guilty plea to all the charges.