The first miniskirmish in the prosecution of former President Donald J. Trump on charges of conspiring to overturn the 2020 election involves a step that is taken in the early phases of many prominent criminal cases: a proposal to impose rules on how the voluminous discovery evidence in the matter should be handled.
The disagreement started on Friday, when prosecutors in the office of the special counsel asked the judge who is overseeing the case for what is known as a protective order governing the disclosure of discovery material to Mr. Trump’s lawyers. The entreaty was routine, although in making their request, the prosecutors took what could be considered an extra step.
In their motion, the prosecutors drew Judge Tanya S. Chutkan’s attention to a threatening message that Mr. Trump had posted that day on social media. Vague but strongly worded, it read, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
The prosecutors did not ask Judge Chutkan to issue a gag order against Mr. Trump because of the post. But they did use the message to suggest there should be clear rules in place to keep the former president from posting online any evidence that his legal team would get through the discovery process, an apparent acknowledgment that for Mr. Trump, few things are ever routine.
Their argument was inferential, asserting that a protective order was “particularly important” in this case because Mr. Trump has a longstanding habit of attacking those involved in criminal cases against him. On Sunday, he went on the warpath on social media, attacking the special counsel as “deranged” and calling for Judge Chutkan to be recused from the case.
On Monday, Mr. Trump’s lawyers responded to the government’s request by arguing in court papers that prosecutors, by asking Judge Chutkan to limit the former president from publicly discussing the evidence in his case, was infringing on Mr. Trump’s First Amendment rights and was having “the court assume the role of censor.”
The papers sought to frame the typical process of putting in place a protective order as part of what is shaping up to be Mr. Trump’s main defense against the charges in the case: that the government has criminalized his efforts to exercise his rights to free speech.
On Monday night, in what has become a typical tit for tat, prosecutors fired back, accusing Mr. Trump’s legal team of proposing its own version of the order “designed to allow him to try this case in the media rather than in the courtroom.”
Here is what to know about the protective order and what to expect.
What is the purpose of discovery and protecting it?
Discovery evidence represents the bulk of the information that criminal investigators collect during an inquiry. It can come from any number of sources: interviews with witnesses, grand jury testimony or data from seized communications devices like cellphones or computers.
One of the first steps in a prosecution involves the government turning over all of that information to defense lawyers so they can understand the scope of the case against their client. Discovery evidence provides lawyers with a wide view of the legal landscape, allowing them to start planning pretrial motions to attack the charges or even trial defenses. If the discovery evidence is particularly damning, it can also cause lawyers to advise their clients to plead guilty.
Protective orders are typically put in place over discovery material to ensure that the case moves forward in an orderly fashion and with a measure of decorum. The orders, which can vary greatly in severity, generally demand that the defense employ discovery evidence only to pursue actions related to the case itself and not to release it widely and seek to try the case in the court of public opinion before it reaches a courtroom.
What kind of protective order did the government request in this case?
The government’s proposed protective order in the election interference case is fairly standard.
Its central provision is to restrict disclosure of discovery evidence only to parties with a direct interest in the case: Mr. Trump, his lawyers, any potential witnesses and their lawyers, and a catchall category of other people “to whom the court may authorize disclosure.”
The proposal also creates a special category of “sensitive materials” that “must be maintained in the custody and control of defense counsel.” These materials would include things like “personally identifying information” concerning witnesses in the case and any information that emerged from the grand jury that investigated the former president. (Grand juries work under strict secrecy rules.)
Mr. Trump’s legal team could show him the sensitive materials, but under the proposed order they would not be allowed to give him copies. He would also not be permitted to write down any personal information about people mentioned in the materials.
Moreover, while the sensitive discovery evidence could be used to file motions in the case, those motions would have to be partly redacted or submitted under seal.
What have Mr. Trump’s lawyers said about the proposal?
In a filing to Judge Chutkan on Monday evening, John F. Lauro, one of Mr. Trump’s lawyers, tried to suggest that the proposed protective order was not a way to keep the case on an orderly keel, but was rather an attack on Mr. Trump’s free speech rights.
“In a trial about First Amendment rights,” Mr. Lauro wrote, swinging the discussion back to his — and his client’s — vision of the case, “the government seeks to restrict First Amendment rights.”
Mr. Lauro proposed what he described as a “more measured approach” — one that would allow Mr. Trump to speak freely about the nonsensitive discovery materials and that would narrow the scope of the government’s order “to shield only genuinely sensitive materials from public view.”
Mr. Lauro had previewed some of these arguments on Sunday, making a somewhat misleading claim that prosecutors were seeking to hide certain facts from public disclosure.
“What the Biden administration is trying to do is prevent the press from learning about exculpatory and helpful information — evidence — that the people have a right to know about,” he said on “This Week” on ABC.
But under the government’s proposed protective order, Mr. Lauro and his colleagues will be free to use any exculpatory information they receive through the discovery process to file pretrial motions — even if certain details will need to first be redacted or some of the motions will initially have to be filed under seal.
Mr. Trump’s lawyers will also be able to use any “helpful information” they obtain at a public trial should there ultimately be one — provided Judge Chutkan rules it is admissible.
And, of course, much of the material shielded by the protective order may not be exculpatory or helpful to the former president at all, but rather incriminating and damaging.
In a filing on Monday night, Thomas P. Windom, one of the prosecutors on the case, chided Mr. Lauro for appearing “on five television programs” on Sunday and discussing “this case in detail.”
Mr. Windom also said that Mr. Trump’s plan to try the case in the media ran counter to the reason discovery evidence was disclosed.
“The defendant seeks to use the discovery material to litigate this case in the media,” Mr. Windom wrote. “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.”
What will the judge do next?
Judge Chutkan is almost certain to impose some sort of protective order, though it remains to be seen what sorts of restrictions she will put in place.
She could decide to caution Mr. Trump about his online screeds — though she may simply ignore the situation while considering this narrow issue.
But even if she does send a shot across his bow, any move to formally issue a gag order is likely to be part of a separate process — and only after warnings are issued.