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Judge delivers mixed ruling on protective order in Trump's Jan. 6 case

Brandon Bell
Getty Images

Updated August 11, 2023 at 3:42 PM ET

The judge overseeing former President Donald Trump's trial in the Jan. 6 case sided with Trump's lawyers and ruled that a protective order sought by prosecutors will cover only material the Justice Department designates as sensitive, not all the information to be exchanged in the discovery process.

But Judge Tanya Chutkan sided with the Justice Department in designating witness interviews and recordings as "sensitive" and covered by the protective order. She said, "Disclosure of any of those materials creates too great a risk that witnesses may be intimidated" or the jury pool be polluted.

The order is a partial win for both sides. Trump's lawyers had argued that a more restrictive protective order would violate his First Amendment rights as he campaigns for president. Prosecutors worried Trump would make the criminal discovery process and the details he learned there part of his political campaign.

"The existence of a political campaign is not going to have any bearing on my decision," the judge said. "I'm going to keep politics out of this."

Judge Chutkan noted that Trump is still governed by conditions of his release that include not intimidating or harassing witnesses or interfering with the administration of justice. If those kinds of statements are made, she said, "I will be scrutinizing them very carefully."

And she rejected a proposal by Trump's lawyers to allow a broad swath of people working with the defense team to view the discovery materials. Chutkan said "unindicted coconspirators" could have access to these materials under the defense's broad definition, as well as volunteers and consultants to the defense. "I live in Washington, anyone is a consultant," she said.

Chutkan said the Justice Department bore the burden of showing "good cause" for a protective order on such bases as witness protection, security and protection of information vital to national security. But she said she also needs to "minimize" the effects of pretrial publicity under precedent.

"Mr. Trump, like everyone else, has a First Amendment right to free speech," Chutkan said. "But that right is not absolute."

A protective order bars Trump and his attorneys from improperly using any evidence — which may include sensitive and highly confidential information — that prosecutors share with the defense team before trial.

Earlier this week, prosecutors proposed that Chutkan set a start date of Jan. 2, 2024, for the trial. The government lawyers estimate their part of the case could last about four to six weeks.

Trump's filing on a trial date proposal is due next week. After hearing that prosecutors had amassed 11.6 million documents or files they would start handing over to the defense on Friday, the judge joked, "I can only imagine your trial proposal now," to Trump's attorney John Lauro.

The former president, who is the front runner for the GOP nomination in 2024, has been suggesting he wants to delay the case, perhaps until after the next election. If he regains the White House, Trump could instruct his attorney general to drop the case, or even seek to pardon himself. Trump has pleaded not guilty to the federal charges.

Trump already has a busy legal calendar for 2024. He's set to face trial in Manhattan on charges related to hush money payments to the adult film star Stormy Daniels in March 2024, and to go to trial in Florida in May 2024 on charges that include willful retention of national defense information and obstruction, over classified papers he stored in a ballroom, bathroom and storage area at his Mar-a-Lago resort.

Manhattan District Attorney Alvin Bragg recently told The Brian Lehrer show on WNYC he would be amenable to moving the New York trial, so long as the judge there agrees.

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Carrie Johnson is a justice correspondent for the Washington Desk.