Judge partially sides with Trump, rejects Special Counsel Smith's overly broad protective order intended to completely silence Trump

August 12, 2023
Ben Marquis

Special Counsel Jack Smith, in the case stemming from his criminal indictment of former President Donald Trump in relation to his post-2020 election actions, had sought a broad protective order in the case to prevent Trump from publicly sharing any and all information he may receive from the prosecution via the discovery process.

Trump's attorneys had argued that Smith's request was overly broad and a violation of the First Amendment, and it appears that U.S. District Judge Tanya Chutkan agreed with that assessment, as she declined to accept the government's proposed protective order during a Friday hearing, according to the Washington Examiner.

However, while the judge refused to accept the prosecution's broad effort to essentially gag the former president, who is also the leading Republican candidate for 2024, she did impose some limitations on what Trump can say and share publicly for the duration of the case.

A "partial win" for both sides

NPR reported that Judge Chutkan delivered a "mixed ruling" on the protective order issue that both the prosecution and defense teams could chalk up as a "partial win."

Indeed, while she sided with former President Trump's team in deeming the government's proposal an overbroad violation of Trump's right to free speech, she also sided somewhat with prosecutors by expanding the definition of what constitutes "sensitive" materials that Trump would be limited in publicly disclosing ahead of trial to include things like audio recordings and witness testimony.

Judge Chutkan also appeared to try to stake out a non-political middle ground for herself, as she stated, "The existence of a political campaign is not going to have any bearing on my decision. I'm going to keep politics out of this."

Prosecutors had raised concerns that Trump might try to make use of discovery materials in his presidential campaign, perhaps in an attempt to intimidate witnesses or improperly sway potential jurors, and the judge seemed to acknowledge those concerns as she said of any such statements, "I will be scrutinizing them very carefully."

Trump has a "right to free speech," but it is "not absolute"

Along those lines, ABC News reported that Judge Chutkan did address the scope of former President Trump's First Amendment-protected right to free speech in relation to the protective order over "sensitive" materials turned over to the defense team in the discovery process.

"Mr. Trump, like any American, has a right to free speech," she said. "But that right is not absolute."

Chutkan also issued some cautionary words for Trump, who was not present at the hearing, without actually naming him by suggesting that any "inflammatory statements" made could serve as justification for her to speed up the timeline of an eventual trial.

"I intend to ensure the orderly administration of justice in this case as I would with any other case," the judge said. "The more a party makes inflammatory statements about this case which could taint the jury pool or intimidate potential witnesses, the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury."

A warning to both sides against "trial by media"

The Washington Examiner noted that Judge Chutkan also made a statement during the hearing that could be construed as not just a warning against former President Trump sharing sensitive information with the public but also against the apparent tendency of the special counsel's team to leak select information to favored reporters and media outlets.

"While I intend to ensure that Mr. Trump is afforded all the rights that any citizen would have, I also take seriously my obligation to prevent a carnival atmosphere of unchecked publicity and trial by media," she said in reference to previously expressed concerns from the Supreme Court. "This case is no exception."

As a final matter, Judge Chutkan also sought a middle ground on whether Trump should be allowed to review discovery materials by himself. Prosecutors had essentially asked that Trump's attorneys "babysit" him while he reviewed any discovery materials, but the judge didn't go quite that far and instead ruled that Trump could review materials alone but only with no electronic devices present and that any notes taken must be reviewed by his attorneys to guard against the sharing of any sensitive or personally identifying information.

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