Trump’s Attorneys Claim Special Counsel’s Protective Order Tramples His First Amendment Rights

Donald Trump’s attorneys opposed Special Counsel Jack Smith’s proposed protective order on Monday, claiming entering it would violate the former president's free-speech rights.

“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights," attorney John Lauro wrote in a 13-page legal brief. "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." 

Putting a protective order in place is the first step required before prosecutors can start sharing the evidence they have amassed against Trump, over his attempts to overturn his defeat in the 2020 presidential election. 

Trump allegedly committed four federal crimes in that effort: conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing an official proceeding, and violating a criminal analogue of the Ku Klux Klan Act, a Reconstruction-era law punishing attempts to trample on the civil rights of freedmen and women. Here, Trump stands accused of seeking to “oppress, threaten, and intimidate” people out of “the right to vote, and to have one’s vote counted.”

Before bringing those allegations before a jury, prosecutors must start sharing evidence with Trump — and shielding that information before trial. Trump's legal team claims that the order prosecutors proposed to govern that evidence sharing is "overbroad," and they noted that the case falls with Trump leading the GOP candidates in the primary race.

"Against this backdrop, the government requests the Court assume the role of censor and impose content-based regulations on President Trump’s political speech that would forbid him from publicly discussing or disclosing all non-public documents produced by the government, including both purportedly sensitive materials [...] and non-sensitive, potentially exculpatory documents," the filing states.

Attorney General Merrick Garland appointed Smith and his team of career prosecutors to safeguard against the appearance of politics, but Trump's attorneys suggest that President Joe Biden isn't helping in that effort. Their latest filing screenshots a photograph of Biden drinking coffee out of a "Dark Brandon" mug hours before Trump's arraignment, in what was widely viewed as a sly reference to the criminal prosecution. The social media post made no direct reference to Trump's case. Biden has avoided commenting on Trump's legal troubles, and Trump has produced no evidence that Smith's investigation has been anything but independent.

Like Manhattan District Attorney Alvin Bragg before him, Smith so far has not requested a gag order for Trump, who portrays any effort by prosecutors to limit his public communications about the pre-trial evidence in his criminal cases–a routine procedural step in criminal proceedings–as a threat to his freedom of speech.

Under Smith’s proposed protective order, Trump and his lawyers would be barred from publicly disclosing sensitive evidence exchanged between the parties in pre-trial proceedings, including “grand jury subpoena returns, witness testimony, and related exhibits presented to the grand jury.” The proposed order does not limit discussion of records that are already publicly available independent of the government’s prosecution.

Trump would remain free to comment on his case, and he hasn’t been shy about doing so. On Friday, Trump wrote on his website Truth Social: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Prosecutors flagged that salvo for the judge, not as an alleged violation in its own right, but as a sign of how Trump could go after witnesses that he learned were cooperating with the government.

Though seemingly acknowledging prosecutors' interest in preventing the disclosure of information about cooperating witnesses, Lauro claims that the proposed order swings too broadly, and his objections are generally two-fold. He wants to broaden the pool of people allowed access to "Sensitive Materials," and he wants prosecutors to clearly designate (and ultimately narrow) their definition of what's sensitive.

"Defense counsel may choose to bring on, for instance, volunteer attorneys or others without paid employment arrangements to assist with the preparation of this case," his brief states. "The government cannot preclude the assistance of those individuals, nor should President Trump be required to seek permission from the Court before any such individual assists the defense."

Trump's legal team wants to include those unpaid volunteers into those allowed to be read onto the sensitive materials. They also demanded that the special counsel "conspicuously" designate information considered inappropriate for public release, asking to eliminate language barring the disclosure of "[r]ecordings, transcripts, interview reports, and related exhibits of witness interviews."

U.S. District Court Judge Tanya Chutkan, for her part, appears eager to resolve this controversy quickly.

On Saturday, Chutkan issued an order giving Trump’s attorneys until 5 p.m. Monday to respond to Smith’s proposed protective order, and she quickly rejected the defense's request for a three-day extension hours later. Trump's attorneys filed their responses mere minutes before that deadline, drawing red-lines through the language that they wanted to replace.

Prosecutors have jockeyed to move forward quickly with their election interference case.

“The Government stands ready to press send on a discovery production,” prosecutors wrote. “The defendant is standing in the way.”

Chutkan signaled that she may decide to rule on the matter without a hearing, leaving an open question over whether she will schedule oral arguments.

"The court will determine whether to schedule a hearing to discuss the proposed protective order after reviewing Defendant's response and, if included, his revised proposed protective order with modifications in redline," she wrote on Saturday.