Most criminal defendants are also restricted by limits on what they and their lawyers can do with evidence provided to them by the prosecution during what is called the discovery process. Criminal defendants are allowed to see the evidence and learn the identities of witnesses against them so they can prepare their defense, but they are not allowed to expose the evidence to the public or to reveal the names of the witnesses against them in order to protect the witnesses from allies of the criminal defendant who might want to threaten or harm the witnesses before trial. Some criminal defendants and their attorneys are even put under a gag order, restricting them from discussing the case in any manner in public.
There was a hearing today before Judge Tanya S. Chutkan in federal district court in Washington D.C. so that she could hear oral arguments from prosecutors and the defense in the matter of The United States of America v. Donald J. Trump, the defendant in a criminal case involving four charges of breaking three federal laws in 2020 and 2021, The issue before the court was a motion filed by prosecutors for Special Counsel Jack Smith seeking a protective order over the discovery prosecutors are getting ready to release to the defense to prepare for the upcoming trial of Defendant Trump.
Prosecutors had asked the judge to issue an order restricting what the defendant and his attorneys could do with the materials they were prepared to turn over in discovery. “All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public,” prosecutors wrote in their motion. "Such a restriction is 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."
Prosecutors singled out one statement by Defendant Trump on his social media account last Friday afternoon: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!" Prosecutors asked the court to restrict the use of discovery materials by the defense to the trial only, and to require that the defendant be permitted to see the discovery materials only in the presence of his lawyers.
On Friday the judge split the difference between the two sides, ordering that sensitive information in the discovery materials should be protected, such as the identities of witnesses or any “personal identifying information” that could be used to identify the witnesses. She also issued an order protecting all information that had been gathered in the grand jury process, a normal restriction given that grand juries operate under secrecy. She allowed Defendant Trump to be shown sensitive information by his attorneys but ordered that he cannot have any sort of devices with him such as a cellphone that could be used to copy or disseminate information.
Defense attorneys tried to frame Friday's hearing in terms of Defendant Trump’s rights under the First Amendment, claiming that any protective order would “put a chill” over the defendant’s right to “defend himself” during the 2024 presidential campaign. Judge Chutkan was having none of it. The defendant has a right to free speech under the First Amendment “like any other American, but that right is not absolute,” she said from the bench. “He is a criminal defendant. He is going to have restrictions like every other criminal defendant.” Addressing the claim that Defendant Trump was a special case because he is running for president, Judge Chutkan referred to his being a candidate as “his day job,” like any other defendant facing criminal charges.
While nothing she did today amounted to a gag order, the judge repeatedly told the defense that she would hold Defendant Trump accountable for statements he made in public that could potentially identify or endanger witnesses or taint the jury pool. She said that she thought there were “problems here,” caused by the fact that witnesses “may not have the type of protections that he has,” referring to Defendant Trump’s Secret Service protection.
Prosecutors told the judge that the defendant had “already begun to try the case in the media,” and cited the fact that the lead defense attorney, John Lauro, had made five appearances on television news shows last Sunday. Lauro countered by making an example of former Vice President Pence, who has made statements about the demands Defendant Trump made on him to interfere with the process of certifying the electoral votes on January 6, 2021. Lauro claimed that any restrictions on what the defendant could say in public would “impede his ability to conduct his campaign.”
“I do want to issue a general word of caution — I intend to ensure the orderly administration of justice in this case as I would in any other case,” Judge Chutkan said, warning the defense attorneys that she would be watching for “even arguably ambiguous statements” that could be interpreted as threatening witnesses. “I caution you and your client to take special care in your public statements in this case. I will take whatever measures are necessary to protect the integrity of these proceedings.”
Commentators have claimed since Defendant Trump was first indicted in New York City, and again when he was indicted in Florida, and again when he was indicted in Washington D.C., that the nation is facing an unprecedented situation because he is a former president and a candidate in the 2024 election.
Yet the only unprecedented thing about today’s hearing was the fact that defense attorneys referred to the defendant throughout as “President Trump” while the judge simply referred to him as “Mr. Trump” and the prosecutors referred to him as “the defendant.” Other than that, everything that happened today in Washington D.C. happens every day in courtrooms all over the country when criminal defendants face restrictions on what they are permitted to do with discovery materials, how they are able to review the materials, and are restricted from identifying witnesses.
Defendant Trump wants to be able to try his case in public with no rules on what he can say because he claims protection under the First Amendment. Today he was told in a federal courtroom in Washington D.C. that he faces restrictions on what he can say about witnesses against him before he goes to trial on the four federal charges against him. That trial will take place in a court of law under rules of evidence and legal procedure, a foreign land to the man who tells lies and threatens people as a matter of normal course in his life.
It’s not his life anymore, not the part of it that will be tried in at least three and possibly four courtrooms over the coming 12 or more months.
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.
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