By Petr Svab and Jackson Richman
WASHINGTON—District Judge Tanya Chutkan opposed the request by prosecutors to bar former President Donald Trump from revealing non-sensitive evidence provided to him by the prosecutors ahead of the trial on whether he conspired to illegally obstruct the counting of the 2020 electoral votes.
During an Aug. 11 hearing in Washington, she decided to issue a gag order that only forbids the release of information prosecutors label as sensitive.
The prosecutors, with the office of special counsel Jack Smith, requested a blanket gag order, citing concerns over safety and intimidation of witnesses.
The judge questioned the defense over the potential use of non-sensitive information to intimidate witnesses.
President Trump’s lawyer, John Lauro, a former federal prosecutor himself, responded that President Trump will abide by the pre-trial conditions, which already prohibit witness intimidation. He stressed that it’s the prosecutors’ job to prove why such a abroad restriction of the 45th president’s First Amendment rights is necessary.
He noted that the burden on President Trump’s rights is already significant, given that its up to the prosecutors to decide what information is and isn’t sensitive.
Federal prosecutor Thomas Windom said that most of the information ready to be handed over to the defense, over 11 million pages and files, will be marked as sensitive.
Mr. Lauro mentioned several times that President Trump is in the middle of an election campaign, but the judge refused to take that into account.
Mr. Windom suggested that President Trump was planning to release information before trial that could taint the jury pool in an effort to try the case in the media.
Mr. Lauro said that public speech isn’t grounds for a gag order.
The judge ultimately made the point that if President Trump would try to intimidate witnesses, there would be other mechanisms to address it—it could affect the conditions of his pre-trial release.
Mr. Lauro concurred, but noted that one of the key witnesses in the case, former Vice President Mike Pence, is among President Trump’s opponents in the primary race. The two should be able to have a back-and-forth during the campaign, he said.
The judge retorted that President Trump will face the same restrictions as any other criminal defendant.
Mr. Lauro wanted the prosecutors to mark what specific information is sensitive within each document. Mr. Windom considered that too challenging. The judge sided with the government.
To the displeasure of the defense, the judge refused to allow access to the evidence beyond President Trump’s staff lawyers.
The gag order is binding to both sides, even covering information that is or becomes public, she said. The defense would be required to ask for a modification of the order in order to release sensitive information that has become publicly available.
The case was brought by Mr. Smith on Aug. 1 alleging a conspiracy to “impair, obstruct, and defeat” the collection and counting of electoral votes; conspiracy against Americans’ right to vote; obstruction of the electoral vote counting by Congress; and conspiracy to obstruct the electoral vote counting.
The indictment posits that President Trump didn’t genuinely believe that victory in the election was unlawfully taken from him and his attempts to reverse the results were thus fraudulent and corrupt.
On Aug. 10, Mr. Smith proposed Jan. 2, 2024, as the date to start the trial with jury selection to launch as early as Dec. 11.
He stressed the public’s interest in a speedy trial, particularly in this case “where the defendant, a former president, is charged with conspiring to overturn the legitimate results of the 2020 presidential election, obstruct the certification of the election results, and discount citizens’ legitimate votes.”
The defense appears to have been building an argument that the prosecutors and Judge Chutkan are improperly rushing the case.
Last week, the judge gave the defense three days, over the weekend, to respond to Mr. Smith’s request for the gag order even as the regular rule in the District of Columbia federal courts gives parties 14 days to respond.
“Without doubt, the Court’s decision to vary from the default Local Rules and allow President Trump less than one business day to respond to this important Motion is a concerning development, inconsistent with his due process rights,” President Trump’s lawyers wrote in response.
That same day, the judge ordered the parties to offer her two dates, no later than Aug. 11, for a hearing on the gag order. While the defense asked for an Aug. 14–15 date, the judge wouldn’t oblige, setting the hearing for Aug. 11.