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Why prosecutors want a protective order in the criminal case against Trump

Former President Donald Trump speaks as the keynote speaker at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party on Aug. 5 in Columbia, S.C.
Melissa Sue Gerrits
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Getty Images
Former President Donald Trump speaks as the keynote speaker at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party on Aug. 5 in Columbia, S.C.

Attorneys for former President Donald Trump have until Monday evening to respond to a request by federal prosecutors for a protective order in the latest criminal case against him.

The Justice Department charged Trump with four criminal counts related to allegations that he attempted to overturn the results of the 2020 presidential election, which he lost. In federal court in Washington, D.C., last week, Trump pleaded not guilty.

Federal prosecutors are now asking District Judge Tanya Chutkan to issue a protective order in the case.

That would bar 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.

On Saturday, Chutkan denied a request from Trump's attorneys for more time to respond to the request for a protective order, leaving them until 5 p.m. Monday to reply to the Justice Department's proposal and suggest any changes.

Chutkan said she would decide whether to schedule a hearing on the proposal after reviewing the defense's response.

What is a protective order?

Long before a criminal case goes to trial, prosecutors have to share what's called "discovery" with the defense.

That could include potential evidence, such as grand jury documents and witness statements, and it may contain personal identifying details and other confidential information.

Stanford Law School professor David Sklansky said protective orders are commonly used in criminal cases to shield sensitive information about investigative tactics, cooperating witnesses or national security.

"It's a case-by-case decision by the judge about whether there's reason to fear that disseminating information could be harmful to the public, to national security, to potential witnesses," he said.

Sklansky added that a protective order in this case would not be intended to "silence Trump" or prevent him from talking about the case, but rather an effort to "protect the use of information that's provided in discovery."

Legal experts say a person could receive a warning or be held in contempt of court for violating a judge's protective order.

The DOJ says it will protect sensitive information in the case against Trump

In their motion for a protective order, Special Counsel Jack Smith and prosecutors Molly Gaston and Thomas Windom argued that it would allow the Justice Department to release discovery material to the defense quickly and give Trump expedient access to information that could be used in his defense.

The prosecutors said the order would also shield any "sensitive and confidential" information included in discovery from public view.

That is particularly critical in this case, they argued, because Trump has "previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him."

Prosecutors pointed to a post Trump made on Truth Social on Friday that read: "IF YOU GO AFTER ME, I'M COMING AFTER YOU!"

"If the defendant were to begin issuing public posts using details—or, for example, grand jury transcripts—obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case," the motion reads.

Government attorneys say the proposed protective order is "consistent with other such orders commonly used in this District and is not overly restrictive," and that Trump's legal team could ask the judge to modify it at any point during the case.

A Trump campaign spokesperson on Saturday said the Truth Social post is "the definition of political speech" and not aimed at anyone involved in the election case against him.

An attorney for Trump slams the prosecution's proposal

On Saturday, Trump's attorneys John Lauro and Todd Blanche asked Judge Chutkan to be able to respond to the prosecution's request by Thursday rather than Monday, but their request was denied.

In their motion for an extension, the attorneys said a few more days would allow them and the Justice Department to "meaningfully confer—and potentially resolve—this dispute without Court intervention."

Defense attorneys said Trump was "prepared to confer in good faith regarding an appropriate protective order" but may ask for a hearing on the proposal if the two sides failed to reach a compromise.

Publicly, though, Lauro made pointed criticisms of the proposed protective order during his appearances on various political TV talk shows Sunday morning.

"This is an attack on you and members of the press," Lauro told ABC This Week anchor George Stephanopoulos. "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," Lauro added.

Trump says he'll ask for a new judge and a change of venue

The protective order isn't the only legal issue at play.

Trump said in another social media post on Sunday that his defense team would immediately ask "for recusal of this judge on very powerful grounds," though he didn't specify what those grounds would be.

The former president said he wouldn't be able to get a fair trial under the current judge.

Born in Kingston, Jamaica, District Judge Tanya Chutkan got her law degree from the University of Pennsylvania Law School and later worked for the District of Columbia Public Defender Service and in private practice. She was appointed to the U.S. District Court for the District of Columbia in 2014.

Trump also said his defense team would request a change of venue and ask that the case be moved outside of Washington, D.C. Lauro previously said they would seek a trial in West Virginia.

Republican rivals respond to Trump's indictment

The latest indictment against Trump comes as candidates campaign for the GOP nod in the 2024 presidential election.

Trump remains the Republican front-runner, but other candidates, including his former Vice President Mike Pence, have criticized Trump for his efforts to overturn the results of the 2020 election won by Joe Biden.

Trump, in turn, has lashed out at those critics. He called Pence "delusional" in a social media post Friday evening.

On Sunday morning, Pence again accused Trump of asking him to interfere in the election.

"President Trump was wrong then, and he's wrong now. I had no right to overturn the election," Pence said on CNN's State of the Union. "The American people deserve to know that President Trump asked me to put him over my oath to the Constitution, but I kept my oath and I always will."

Also appearing on the show was former New Jersey Gov. Chris Christie, a former federal prosecutor who said he believes Trump could get a fair trial in D.C.

"I believe jurors can be fair," said Christie, a former supporter of Trump's who's criticized his attempts to cast doubt on the 2020 election results. "I believe in the American people, and I believe in the fact that jurors will listen fairly and impartially."

Another GOP candidate, former Arkansas Gov. Asa Hutchinson, also weighed in on the indictment, telling NPR on Saturday that no one is above the law.

"I've always said that Donald Trump was morally responsible for what happened on Jan. 6, and now he's been charged with criminal conduct in regard to that," he said.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Joe Hernandez
Juliana Kim
Juliana Kim is a weekend reporter for Digital News, where she adds context to the news of the day and brings her enterprise skills to NPR's signature journalism.