(The Hill) — Donald Trump’s legal team turned to the First Amendment in combating a Justice Department (DOJ) request to limit what evidence he can share and discuss with the public, parroting the former president’s claims the protective order takes aim at his candidacy.
Monday’s filing echoes one of Trump’s defenses to the broader Jan. 6 case, arguing he should only be limited from sharing “sensitive” evidence in the case with the public while pushing for “volunteer attorneys” to have access to the full range of discovery in the case.
The Justice Department attacked the proposal in its own filing hours later, dismissing Trump’s effort as a way to try the case in the media by selectively releasing evidence, including information from confidential witnesses that may ultimately not be used at trial.
The protective order, a routine request from prosecutors, structures how to handle evidence in the case, and was initially requested by DOJ on Friday just hours after Trump made an incendiary comment on social media.
“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights,” Trump’s attorney wrote in the Monday filing, calling DOJ’s request too broad.
“Worse, it does so against its administration’s primary political opponent.”
DOJ shot back saying that Trump was seeking to improperly use a process designed only to help him prepare his own defense.
“The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media,” DOJ wrote.
“There is no right to publicly release discovery material, because the discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion.”
Trump was warned in his Thursday arraignment about making any improper contact with witnesses in the case.
But in the Friday request from the prosecution, they noted Trump “has previously issued public statements on social media regarding witnesses, judges, attorneys and others associated with legal matters pending against him.”
The request noted Trump would have access to a broad range of material, including details on witness testimony and information gathered through subpoenas.
It then included a screenshot of Trump’s message just hours earlier, one his campaign would later say was not directed at any one individual.
“IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump wrote.
The First Amendment has become a core argument for Trump’s team.
While such a defense may not fare well in the broader Jan. 6 case – where prosecutors have argued any Trump claims have no bearing on otherwise criminal efforts to seek to remain in office – they could prove more effective in the much more narrow discussion on the protective order.
The Trump team’s proposed red line would bar the sharing only of sensitive records in the case, something it seeks to define as evidence that would jeopardize witness security or deals with confidential sources.
“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—a less restrictive alternative that would satisfy any government interest in confidentiality while preserving the First Amendment rights of President Trump and the public,” Trump’s attorneys John Lauro and Todd Blanche wrote in the filing, calling DOJ’s current language “untargeted.”
The Justice Department said the discovery in the case will include everything from subpoena returns, witness testimony, exhibits presented to the grand jury and material obtained through search warrants.
DOJ argued that some of the language proposed by Trump’s team would allow for an “end-run” that would permit the sharing of some sensitive materials in discovery by obtaining it through subpoena while another would allow for the release of numerous recorded interviews.
“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,” DOJ wrote.
The Trump filing also suggests that much like in the aftermath of his election loss, Trump may rely on a series of unpaid attorneys to help with the case, wishing to provide them access to discovery documents.
“Defense counsel may choose to bring on, for instance, volunteer attorneys or others without paid employment arrangements to assist with the preparation of this case. The government cannot preclude the assistance of those individuals, nor should President Trump be required to seek permission from the Court before any such individual assists the defense,” Trump’s team writes.
There, too, DOJ opposed language put forth by Trump’s team defining the group of potential volunteers, arguing it is “boundless and would allow virtually any volunteer to access discovery.”
Special Counsel Jack Smith similarly sought a protective order in the Mar-a-Lago case, which deals with a substantial amount of highly classified information.