Trump Claims First Amendment Right To Publish Names Of Witnesses Against Him In Jan 6 Case

Donald Trump’s lawyer John Lauro spent the weekend shouting from the rooftops that he intends to try the January 6 case in the court of public opinion, rather than in the US District Court of the District of Columbia.

In the course of a “full Ginsburg” on the Sunday news shows, he spouted a litany of bizarre claims about “aspirational” coups, “technical violations” of the Constitution, and transferring the trial to West Virginia for “diversity.” And he whined into each and every microphone about the gross unfairness of the government’s proposed protective order, which would bar Trump from publishing discovery materials on social media.

“What the Biden administration is trying to do is prevent the press from learning about exculpatory and helpful information, evidence that the people have a right to know about,” he huffed on ABC.

“I’m shocked that all the networks haven’t lined up and filed pleadings already, objecting to this very broad attempt by the Biden administration to keep information away from the American people during the election season,” he bleated on Fox. “The American people have a right to know. Of course, Joe Biden doesn’t want that to happen.”

“President Trump is saying that if there’s evidence out there that the government has that’s exculpatory or informative, then the press has a right to know, but the Biden administration doesn’t want the press to know that, and I’m shocked that there aren’t petitions now filed in the district court opposing what the Biden administration is doing,” he complained on NBC.

It’s a made-for-TV argument which somehow found its way into the flurry of motions over the proposed order which the government and Lauro have been trading since Friday night when the government suggested that the court recycle a protective order from Steve Bannon’s contempt of Congress case — one in which the defendant also had a large platform and a history of whipping up his audience against civil servants. Or, as the government put it, “The defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him.” And indeed Trump spent the past five days doing exactly that, attacking Judge Chutkan, “Deranged” Special Counsel Jack Smith, the District of Columbia, and his former vice president Mike Pence, who is almost guaranteed to be a witness against him in this case.

On Saturday, Judge Chutkan ordered Trump to file a response to the government’s proposed order by Monday at 5pm. Trump’s team replied that they couldn’t possibly meet that deadline, tut-tutting about a “concerning pattern” of behavior by the government and gesturing vaguely in the direction of the Trump’s criminal docket in the Southern District of Florida’s documents case. Then Lauro spent all day Sunday on television, instead of redlining the five-page proposed protective order.

Judge Chutkan denied the request for delay, and when the redline hit the docket it was full of the same incendiary rhetoric Lauro lobbed on television:

In a trial about First Amendment rights, the government seeks to restrict First Amendment rights. 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 motion accused the government of imposing “content-based regulations on President Trump’s political speech that would forbid him from publicly discussing or disclosing all non-public documents produced by the government, including both purportedly sensitive materials and non-sensitive, potentially exculpatory documents.” By this logic, of course, any protective order would violate the First Amendment. Although the argument is at least consistent with Lauro’s claims that his client had a First Amendment right to pressure Mike Pence to overthrow the government.

Trump not only insists on his right to share non-sensitive discovery with the public at large, he demands the right to share sensitive discovery with an almost boundless universe of people:

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. Such a limitation or requirement would unduly burden President Trump and impede the efficient preparation of his defense.

Just hours later, the special counsel responded, noting that this last provision would allow Trump to share sensitive case information with the very co-conspirators named in the indictment, all six of whom appear to be lawyers.

“The defendant’s proposed order would lead to the public dissemination of discovery material,” prosecutors argue. “Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.”

Pointing to both Lauro’s media appearances and the defendant’s incendiary social media posts, the government argued that a law protective order would allow Trump to poison the jury pool and intimidate witnesses:

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. 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.

Later last night, Judge Chutkan gave Trump a win … kind of. In a minute order, she instructed the parties to schedule a time to argue the parameters of the protective order on or before Friday. Considering how fast she’s ruled on everything else, it seems pretty likely that a protective order will be in place by Monday at the latest. But Trump’s shenanigans did succeed in delaying discovery for at least a week, so … mission accomplished?

And meanwhile on Truth Social:

Let’s see! My political Opponent, Crooked Joe Biden, tells Merrick Garland and the DOJ to indict and arrest me on bogus charges and accusations, trying desperately to steal the Election. But that wasn’t enough! He now wants Thug Prosecutor, Deranged Jack Smith, to file for a Court Order taking away my first amendment rights, SPEECH. So, based on yet another Radical Left Hoax, I’ll be the only “Politician” in American history not allowed to SPEAK. THE NEVER ENDING WITCH HUNT CONTINUES. MAGA!

“Politician.”

US v. Trump [Docket via Court Listener]

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Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.