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Trump's legal team offer more lax rules for a proposed protective order in Jan. 6 case

Former President Donald Trump speaking at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party on Saturday in Columbia, S.C.
Melissa Sue Gerrits
/
Getty Images
Former President Donald Trump speaking at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party on Saturday in Columbia, S.C.

Updated August 8, 2023 at 12:14 AM ET

Former President Donald Trump's legal team is proposing less restrictive rules than those offered by federal prosecutors over what details can be publicly disclosed in the Jan. 6 criminal case against Trump.

In a court filing submitted Monday evening, Trump's lawyers proposed two options for a potential protective order's guidelines "to shield only genuinely sensitive materials from public view."

"This more measured approach is consistent with other protective orders entered by this Court in cases concerning the events of January 6, 2021, and appropriately balances the government's claimed desire to 'protect [] highly sensitive categories of material' and 'expedite the flow of discovery,' " the filing read.

His attorneys also repeated Trump's own claims that prosecutors for the Justice Department are politically motivated in their attempt to restrict the former president's First Amendment protections.

"In a trial about First Amendment rights, the government seeks to restrict First Amendment rights," Trump's lawyers wrote in the court filings. "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."

The filing comes in response to an effort made by special counsel Jack Smith late Friday to seek a protective order to limit what discovery evidence Trump can share publicly about this criminal case. The prosecutors said the order would also shield any "sensitive and confidential" information included in discovery from public view.

Trump's lawyers were denied an extension over the weekend to get more time to respond to the motion for a protective order.

Negotiating the parameters of this protective order is a crucial step for prosecutorsbefore they can begin the all-important discovery process and nail down a time for an actual trial.

How the government responded to Trump's team

In their response to the Trump legal team's proposal, federal prosecutors reiterated their support for a broader protective order, saying it would "safeguard witness privacy and the integrity of these proceedings."

The filings late Monday showed just how far apart the two sides are on the issue.

Trump's team included a correspondence between the defense and prosecutors that seemed to emphasize that point. An email from prosecutors in court filings said: "We have had a chance to review it and do not believe we will be able to come to an agreement on most issues."

The government's suggested order would apply to all discovery produced by prosecutors, which "is consistent with others routinely entered in criminal cases in this District," lawyers for the Justice Department wrote.

"The defendant's proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant's stated goal; the defendant seeks to use the discovery material to litigate this case in the media," prosecutors 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."

On Trump and his attorneys' claim that such an order would impede on his First Amendment rights, the prosecutors said, "There is no right to publicly release discovery material."

Judge Tanya Chutkan will decide next steps on the protective order. The next scheduled hearing is on Aug. 28 at 10 a.m. ET.

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