Trump's attorneys argue for narrower protective order in 2020 election case

Washington — Former President Donald Trump's legal team said only "genuinely sensitive materials" should be shielded from public view in response to a request from special counsel Jack Smith, who asked a judge to limit what evidence could be publicly shared in the case involving Trump's alleged efforts to overturn the 2020 election. 

In a 29-page court filing on Monday, Trump attorney Todd Blanche and John Lauro argued for a much narrower protective order than Smith had proposed, saying "a less restrictive alternative that would satisfy any government interest in confidentiality while preserving the First Amendment rights of President Trump and the public." 

"In a trial about First Amendment rights, the government seeks to restrict First Amendment rights," Trump's attorneys wrote. "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 defense team said only material deemed "sensitive" — including grand jury information, material derived from sealed search warrants and personal details — should be blocked from public disclosure as the case progresses.

"President Trump does not contest the government's claimed interest in restricting some of the documents it must produce, such as those containing Rule 49.1 information and Rule 6 grand jury materials," the attorneys said, referring to personally identifiable information and grand jury material, respectively. "However, the need to protect that information does not require a blanket gag order over all documents produced by the government. Rather, the Court can, and should, limit its protective order to genuinely sensitive materials."

Trump is charged with four criminal counts accusing him of trying to thwart the 2020 election results through several schemes that sought to block the transfer of power to President Biden. Trump has pleaded not guilty.

In a court filing last Friday, Smith said he was ready to hand over a "substantial" amount of evidence to Trump's defense team, but asked U.S. District Court Judge Tanya Chutkan to issue a protective order that would bar Trump and his attorneys from improperly disclosing evidence. The government's proposed order would apply to "[a]ll materials provided by the United States in preparation for, or in connection with, any stage of this case" and would bar their disclosure beyond the defense team, potential witnesses and their attorneys and others authorized by the court.

Smith said restrictions on what evidence could be made public are "particularly important in this case" because Trump has posted on social media about "witnesses, judges, attorneys, and others associated with legal matters pending against him." 

He pointed to a Truth Social post from Trump earlier Friday that said, "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 court filing said.

Trump's campaign said in a statement Saturday that the Truth Social post was in response to "dishonest special interest groups" and political committees that have attacked him. 

Trump's lawyers also addressed that post in Monday's filing, saying it "does nothing to support the [government's] Proposed Order."

"The government argues that, based on this post, there is a danger that President Trump might publish grand jury transcripts or other sensitive information," they said. "A provocative claim when searching for headlines, perhaps, but one that falters under minimal scrutiny."

The filing argued that the government "does not explain how a post on a different topic, which does not include or describe sensitive information, suggests President Trump might disseminate such information in the future."

The former president's legal team had sought more time to respond to the government's request for a protective order, but Chutkan denied the request, keeping in place a Monday afternoon deadline.

In the hours leading up to the deadline, Trump lashed out at Smith and Chutkan in a series of Truth Social posts. 

"I shouldn't have a protective order placed on me because it would impinge upon my right to FREE SPEECH," Trump said in one.

Later Monday, Smith asked the judge to reject the defense team's proposed changes to the protective order, arguing that such changes would allow them "to try this case in the media rather than in the courtroom." 

Smith cited Lauro's appearance on five news programs on Sunday in which he discussed the case, the dispute over the protective order and potential testimony from former Vice President Mike Pence, who is a key witness in the case. Smith also noted that Trump has attacked Pence on social media in recent days. 

Trump's legal team's proposed changes to the protective order would allow them to make public witness interviews that were not conducted during grand jury proceedings, Smith said. 

"The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings — no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence — and claim that it supports some position the defendant later may make in pre-trial motions or at trial," Smith argued. "Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court." 

In:
• Donald Trump
• United States Department of Justice
• Jack Smith

Caitlin Yilek

Caitlin Yilek is a politics reporter for CBS News Digital. Reach her at caitlin.yilek@cbsinteractive.com. Follow her on Twitter: https://twitter.com/hausofcait

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