The hearing on a DOJ-requested protective order against Donald Trump, which was hurriedly scheduled despite Trump’s full legal team not being available, took place on Friday. The outcome turned out to be somewhat of a surprise, with Judge Tanya Chutkan adopting the defense’s proposal, though there are some big caveats.
That came after an extensive back and forth between Thomas Windom, a prosecutor on Jack Smith’s team, and Trump attorney John Lauro. Before we get to the details of the decision, it’s worth sharing some of the more interesting exchanges with the bench.
At one point, Chutkan made a joke that seemed just a bit inappropriate.
LAURO now up: "I think you hit the nail on the head," he said.
CHUTKAN: "I think that may be the last time you say that for awhile," she says to laughter in courtroom.
— Kyle Cheney (@kyledcheney) August 11, 2023
I understand courtrooms aren’t always deadly serious places, but stating that the defendant isn’t going to be happy with her decisions going forward is a bit much. That’s going to come across as pre-judging the case, probably because it sounds a whole lot like pre-judging the case.
Regardless, what she said regarding the politics of the case is very instructive as to how things will be handled going forward.
IMPORTANT — CHUTKAN: “What the defendant is currently doing — the fact that he’s running a political campaign has to yield to the orderly administration of justice. If that means he can’t say exactly what he wants to say about witnesses in this case, that’s how it has to be.”
— Kyle Cheney (@kyledcheney) August 11, 2023
LAURO: "The risk is that someone can say something in the course of a heated debate or a heated campaign and [prosecutors] are going to throw a flag."
He vows his client will follow precise letter of the court's order.
CHUTKAN: "I'm glad to hear that."
— Kyle Cheney (@kyledcheney) August 11, 2023
Lauro might be making a promise he can’t keep there. Trump has never been known to follow the “precise letter” of any court’s order, and his volatility on social media has become legendary in that respect. Chutkan reiterating during the proceedings that the terms of the former president’s release are still in full effect is a clear brushback pitch on that issue.
Still, the big thing here is Chutkan stating that she will not take into account the presidential campaign when making rulings. That could put Trump in a precarious position, where he wants to lash out at certain figures, i.e. Mike Pence, yet faces repercussions because Pence is known to be a witness in the case. Chutkan’s dismissal of political implications gives Joe Biden an advantage in the race by default, and that’s the big problem with the DOJ bringing these charges in the midst of a presidential campaign instead of a year ago. As I’ve long speculated, I believe that was purposeful.
Moving to the actual decision on the matter, Chutkan ultimately adopted the defense’s proposal (which is more of a compromise than a straight win) to have a redline on what material will be considered under the protective order. Specifically, “sensitive” information will be covered while the DOJ’s broader request to cover essentially all discovery won’t be.
CHUTKAN sums up the arguments. "It is close."
"At this point, I'm not persuaded that the government ahs shown good cause to subject to the protective order all the inormation in this case." She adopts defense proposal.
— Kyle Cheney (@kyledcheney) August 11, 2023
That’s where the split in this split decision comes in. While team Trump scored a win by getting a redline on what materials are under the protective order, Chutkan did narrow many of the defense’s other requests, including who can review sensitive information as part of discovery. She likewise broadened what is considered sensitive material in regard to the case to cover recordings.
CHUTKAN says defense definition is too broad.
"It allows just about anybody — I live in Washington. Anyone is a consultant." She notes language could permit unindicted coconspirators to see discovery.
— Kyle Cheney (@kyledcheney) August 11, 2023
Chutkan then went on to take a shot at Trump’s internet postings, noting that Lauro’s arguments are centering on politics and not making a defense in the courtroom.
CHUTKAN says Lauro is "conflating what your client need sto do to defend himself and what your client wants to do politically. Your client’s defense is supposed to happen in this courtroom, not on the internet."
— Kyle Cheney (@kyledcheney) August 11, 2023
When again pressed on the matter by Lauro, Chutkan doubled down, stating that Trump will abide by the same restrictions any other defendant would have, with no care for politics.
LAURO, again: "President Trump will scrupulously abide by his conditions of release."
— Kyle Cheney (@kyledcheney) August 11, 2023
Later in the hearing, Chutkan again made a joke at Trump’s expense. This time about classified documents being at Mar-a-Lago.
Thomas Windom got in a good laugh line about how Trump has shown a tendency to hold onto material that he shouldn't have.
— Ryan J. Reilly (@ryanjreilly) August 11, 2023
Getting to my strict opinion on the matter, this is going to be a nightmare for Trump’s lawyers. Trying to stop the former president from attacking people who could be witnesses in the case (or even attacking the judge) is going to be nearly impossible. Chutkan has now officially taken the position that Trump is just another defendant and that no accommodations will be made to ensure the case doesn’t interfere with the election.
Given that, a speedy timeline is something Republicans should prefer. This needs to be handled before the nomination process is decided. Primary voters deserve to know whether their candidate will be in jail (or under house arrest) for the general election. Again, this is the problem with the DOJ bringing these charges so late in the game, and I’m sure Joe Biden is more than happy with the timing.
Lastly, for those that want to read the defense’s proposal, it’s posted below.
