Federal prosecutors asked a federal judge to reject Donald Trump’s request for fewer restrictions over how he can publicly share evidence in the case involving his efforts to subvert the 2020 election, arguing the former president was seeking to abuse the discovery process.
“The defendant seeks to use the discovery material to litigate this case in the media,” prosecutors wrote in an eight-page brief on Monday. “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.”
The court filings, submitted to the US district court judge Tanya Chutkan, who is overseeing the case, highlighted comments made over the weekend by Trump’s lawyer John Lauro about the former vice-president Mike Pence being a potential witness to stress the importance of strict restrictions.
“This district’s rules prohibit defense counsel from doing precisely what he has stated he intends to do with discovery if permitted: publicize, outside of court, details of this case, including the testimony of anticipated witnesses,” prosecutors wrote.
Trump has characterized the indictment, charging him with four felonies over his attempt to obstruct the congressional certification of Joe Biden’s election win on 6 January 2021 and overturn the results of the 2020 election, as a political witch-hunt and infringing on his first amendment rights.
To that end, his lawyers filed a brief earlier on Monday asking the judge to issue a less restrictive protective order, a routine step in criminal cases to ensure evidence turned over to defendants in discovery is used to help construct a defense and not to chill witnesses.
The 29-page document asked for various accommodations, such as giving Trump the ability to make public any transcripts of witness interviews that are not protected by grand jury secrecy rules, and to expand the circle of people who could gain access to the discovery material.
But the prosecutors in the office of special counsel Jack Smith provided a line-by-line refutation of Trump’s requests, including that he be permitted to share evidence turned over to his legal team in discovery with people other than his own lawyers, such as volunteer attorneys.
Allowing such broad language, prosecutors wrote, would render it boundless and allow Trump to share evidence, for instance, with any currently unindicted co-conspirators who are also attorneys and could benefit from otherwise confidential information.
The procedural dispute between prosecutors and Trump’s legal team sets up an early test for Chutkan, who will now decide the matter. Chutkan ordered both sides to confer and jointly inform her by Tuesday 3pm of potential dates for a hearing to take place before 11 August.
But a bitter fight this early in the process, over the protective order, which prosecutors say must be implemented before they start turning over evidence to Trump, suggests the case could be marked by contentious pre-trial motions from the former president with an eye on delay.
As in the classified documents case, Trump’s overarching strategy in legal cases is to delay them. If a trial drags past the 2024 election and Trump were to win, he could try to pardon himself or direct his attorney general to drop the charges and jettison the case.
The current dispute started almost immediately after Trump was arraigned last week, when prosecutors took the routine step of asking for a protective order but specifically referenced a vaguely threatening post from Trump that read “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
The prosecutors did not ask the judge to impose a gag order on Trump to prevent him from discussing the case, but made an inferential argument that there needed to be clear rules on how Trump could publicly use evidence turned over to him in discovery.
Their main requests were to limit the people with access to the discovery materials to just people with an interest in the case, such as Trump’s lawyers, and to create a special category of “sensitive materials” that “must be maintained in the custody and control of defense counsel”.
The sensitive materials would include things like “personally identifying information” of witnesses and information that emerged from the grand jury during the criminal investigation, which is kept secret under federal law.
Under the proposed protective order, the government also allowed Trump’s lawyers to show him the sensitive materials. But he would not be permitted to keep copies or write down any personal information about the people in the materials, since that would circumvent the rule about copies.
The Trump campaign responded hours later, saying in a statement that the post had not been directed at anyone involved in the case and suggesting that prosecutors were seeking to punish him for engaging in first amendment activity, or “the definition of political speech”.
