The first skirmish in the prosecution of former President Donald J. Trump on charges of conspiring to overturn the 2020 election involves the handling of discovery evidence. Prosecutors have requested a protective order from Judge Tanya S. Chutkan to govern the disclosure of discovery material to Mr. Trump’s lawyers. The prosecutors drew attention to a threatening message that Mr. Trump had posted on social media, suggesting that rules should be in place to prevent him from posting online any evidence obtained through the discovery process. The protective order is necessary to ensure that the case proceeds in an orderly fashion and to prevent the release of discovery evidence to the public.
Discovery evidence is the information collected by criminal investigators during an inquiry. It is turned over to defense lawyers so they can understand the case against their client and plan their defense. A protective order is typically put in place to ensure that the case proceeds in an orderly fashion and with decorum. The government’s proposed protective order in this case restricts the disclosure of discovery evidence to parties directly involved in the case. It also creates a category of “sensitive materials” that must be kept in the custody and control of defense counsel. Mr. Trump’s lawyers will be able to see the sensitive materials but will not be allowed to make copies or write down any personal information about people mentioned in the materials. Any motions filed using sensitive discovery evidence would need to be partly redacted or filed under seal.
Mr. Trump’s lawyers have requested an extension to respond to the government’s proposal, but Judge Chutkan rejected the request. One of the lawyers, John F. Lauro, claimed that the government was trying to hide certain facts from public disclosure, but under the proposed protective order, the defense will still have access to exculpatory information and will be able to use it in pretrial motions and at a public trial, if there is one. The judge is likely to impose some sort of protective order, but it is unclear what restrictions she will put in place. She may choose to caution Mr. Trump about his online behavior or could issue a gag order if necessary.
It remains to be seen how Mr. Trump will respond to the protective order. He has already attacked the prosecutors and called for Judge Chutkan to be recused from the case. If he defies the judge’s order, there could be consequences for his defense. Judge Chutkan may issue warnings or take further action to ensure compliance. In a separate federal case, Mr. Trump’s lawyers objected to certain provisions of the protective order, but ultimately the government changed its stance after their complaints.