Trump’s Lawyers Argue Protective Order Would Violate His Free-Speech Rights

WASHINGTON— Donald Trump’s lawyers on Monday clashed with prosecutors over how much evidence the former president should be able to access in the federal case charging him with conspiring to overturn his 2020 election loss, the first of many expected battles over free speech and the integrity of the sprawling probe.

In dueling court filings, Trump’s team said prosecutors’ request to prevent him from publicly airing any evidence violates his First Amendment rights, while prosecutors accused the defense of trying to let Trump “try this case in the media rather than in the courtroom.”

The dispute began late Friday when special counsel Jack Smith’s team sought a protective order, an otherwise routine move in criminal cases, after Trump posted a message on his Truth Social platform, saying “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” 

Prosecutors cited concern that the message might have been aimed at people connected to the case, and urged U.S. District Judge Tanya Chutkan to limit disclosure of evidence to people with a direct interest in the case, namely Trump and his lawyers. Some sensitive evidence, prosecutors suggested, could be discussed with Trump as long as he didn’t keep or take notes on it, namely the identities of witnesses and their personal information.

On Monday, Trump’s lawyers asked the judge to keep only a limited amount of evidence from public view.

“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights,” Trump attorneys Todd Blanche and John Lauro wrote Monday in a court filing. “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 said any protective order should “shield only genuinely sensitive materials” so as to balance what they described as his First Amendment right to discuss the evidence with prosecutors’ efforts to protect the integrity of the case. 

Prosecutors fired back.

“The defendant seeks to use the discovery material to litigate this case in the media,” their Monday night filing said. “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 dueling requests reflect the legal challenge of preserving Trump’s free speech as he seeks the 2024 Republican presidential nomination while also protecting the legal system from a defendant who often goes after prosecutors, judges and others involved in criminal cases against him. 

Deciding how much grand-jury evidence to protect will be among the first tests for Chutkan, who has been assigned to the case. Legal observers expect there will be further instances of Trump and his attorneys citing free speech in defending his actions. 

It isn’t known when Chutkan will rule on the matter, but she told the parties Monday night that she would hold a hearing on the issue this week. 

Trump pleaded not guilty Thursday to four crimes, including conspiring to defraud the U.S., obstructing an official proceeding, and conspiring against the rights of voters. Prosecutors say Trump worked with a group of advisers and lawyers to subvert the will of American voters by trying to cling to power after his defeat in 2020, actions that culminated in the attack on the Capitol.

The indictment returned last week addresses Trump’s right to free speech and acknowledges that he had a right to challenge the election results and even falsely claim fraud. But prosecutors said what Trump did went far beyond such rights and involved discounting legitimate votes.

A protective order would bar parties involved in the case from disclosing or disseminating details of discovery evidence, such as information on witness testimony and subpoenas. Prosecutors said protection of evidence was “particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him.”

If Trump were to share information from grand jury transcripts, Smith’s team continued, it could have a chilling effect on witnesses and hurt the case.

Trump’s campaign immediately responded by saying the social-media post wasn’t directed at anyone in particular and was “the definition of political speech.”

Orders protecting discovery evidence are common in criminal cases. In May, a New York judge ordered limits on how Trump can use and review evidence in advance of his state criminal trial on charges connected to his role in paying hush money to a porn star. 

Such evidence can contain details from witness testimony and data collected from electronics and other devices seized in the course of an investigation. Prosecutors turn over the information to defense lawyers so they can know how best to represent their client. In seeking a protective order, prosecutors are trying to ensure that the defense doesn’t publicly release the evidence it obtains, which could taint the case at trial.

Smith’s team had sought to restrict disclosure to only people with a direct interest in the case, namely Trump and his lawyers. They also proposed a category of “sensitive material” that must remain in the hands of defense lawyers, including things such as witness names and grand jury information.

“President Trump does not contest the government’s claimed interest in restricting some of the documents it must produce,” his lawyers wrote in the brief. “However, the need to protect that information does not require a blanket gag order over all documents produced by the government.”

Write to Sadie Gurman at [email protected]