The federal judge overseeing the election conspiracy case against Donald Trump agreed with the defence on a looser version of a protective order for evidence in the case, but largely sided with the prosecution on what sensitive materials should be protected as she vowed to keep politics out of her rulings.
US District Judge Tanya Chutkan repeatedly said that Mr Trump was subject to the court’s rules as a defendant before trial even though he is also running for president at the same time.
She also warned that she would not let political considerations affect her rulings.
Ms Chutkan said: “Your client’s defence is supposed to happen in this courtroom, not on the internet.”
She rejected prosecutors’ broader protective order proposal that sought to prevent the public airing of all evidence they hand over to Trump’s defence as they prepare for trial.
She instead seemed poised to impose a more limited protective order that would bar the public release only of materials deemed “sensitive,” such as grand jury materials.
She did, however, block other defence requests to broaden the scope of who can see discovery and what should be considered sensitive.
The government considers the vast majority of evidence in the case to be sensitive. The judge sided with the prosecution on what materials are considered sensitive and therefore protected under the order.
When prosecutors proposed the protective order, it became an early flashpoint in the case. The prosecutors called the judge’s attention to a post on Mr Trump’s social media platform in which he said he would be “coming after” those who “go after” him.
They warned Mr Trump could improperly share sensitive information online that could have a “harmful chilling effect on witnesses.”
They accused Mr Trump of objecting to their proposal because he wants to be able to use the government’s evidence to “try the case in the media rather than in the courtroom”.
Lawyers for Mr Trump, who has railed against prosecutors and the judge on social media and during campaign events, said the government’s proposed order went too far and would restrict his rights to free speech.
John Lauro, a lawyer for Mr Trump, raised the example of former Vice President Mike Pence — who is both competing against Trump for the Republican nomination and a potential witness in the case – before Ms Chutkan.
Mr Trump has repeatedly attacked Mr Pence for being disloyal.
“President Trump has the ability to respond fairly to political opponents,” Mr Lauro said.
Mr Trump, the early front-runner in the 2024 Republican presidential primary, says he is innocent of the charges, including conspiracy to defraud the United States.
He has portrayed investigations into him as politically motivated.
Prosecutors say that they are ready to hand over a substantial amount of evidence to Mr Trump’s legal team and that much of it includes sensitive and confidential information — like transcripts from the grand jury that investigated the case and evidence obtained through sealed search warrants. Grand jury proceedings are secret.
Prosecutors’ filing last week seeking the protective order included a screenshot of a post from Mr Trump’s Truth Social platform that same day in which the Republican former president wrote, in all capital letters, “if you go after me, I’m coming after you”.
Prosecutors wrote: “If the defendant were to begin issuing public posts using details — or, for example, grand jury transcripts — obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case.”
A spokesperson for Mr Trump said the Truth Social post was made in response to “dishonest special interest groups and Super PACs” and is “is the definition of political speech”.
The prosecutors proposed a protective order barring Mr Trump and his lawyers from disclosing materials provided by the government to anyone other than people on his legal team, possible witnesses, the witnesses’ lawyers or others approved by the court.
They also asked for stricter limits on “sensitive materials”, which would include grand jury witness testimony and materials obtained through sealed search warrants. In those instances, Mr Trump could only be shown the documents, not get a copy himself.
Mr Trump’s team, meanwhile, asked for a more narrow order that would bar the public release only of the materials deemed “sensitive”, such as grand jury documents.
Defence attorneys wrote in court papers that the need to protect sensitive information “does not require a blanket gag order over all documents produced by the government”.
The case, unsealed last week, is the first criminal case that seeks to hold Mr Trump accountable for his efforts to cling to power before an angry mob of supporters fuelled by his election lies attacked the Capitol on January 6 2021.
It comes as Mr Trump faces two other criminal cases and tries to reclaim the White House.
Mr Trump has pleaded not guilty to four felony counts, including conspiracy to defraud the US and conspiracy to obstruct Congress’ certification of Democrat Joe Biden’s electoral victory.
The charges could lead to a lengthy prison sentence in the event of a conviction, with the most serious counts calling for up to 20 years.
Jack Smith and his prosecuting team has indicated that he wants the case to move to trial swiftly, and this week proposed a January 2 trial date.
Mr Trump is already scheduled to stand trial in March in a New York case stemming from hush money payments made during the 2016 campaign and in May in another case brought by Smith accusing the former president of hoarding classified documents at his Mar-a-Lago estate in Palm Beach, Florida.
Mr Smith charged Mr Trump with dozens of felony counts in June alleging the former president illegally kept classified records after he left the White House and obstructed government efforts to get them back.
A new indictment recently unsealed in that case accuses Mr Trump of scheming with Mar-a-Lago staffers to try to delete security footage sought by investigators.
Magistrate Judge Bruce Reinhart imposed a similar protective order in that case in June, which prohibits Mr Trump and his legal team from publicly disclosing evidence turned over to them by prosecutors without prior approval.
Mr Trump has characterised all the cases against him as an effort to take down his 2024 campaign.
His legal team has indicated that it will argue in the latest case that he had relied on the advice of attorneys around him in 2020 and that filing it represents an attack on his right to free speech and his right to challenge an election that he believed had been stolen.
Mr Trump has also lashed out at the judge overseeing the case, writing on his Truth Social platform that his legal team would be “immediately asking for recusal of this judge”, as well as to move the case outside of Washington.
