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UPDATE (Aug. 7, 2023, 5:06 p.m. ET): Donald Trump's legal team filed its response on Monday to the Justice Department's protective order motion in the 2020 election interference case.
Though one of Donald Trump’s social media threats is featured in special counsel Jack Smith’s recent protective order motion, the motion doesn't seek a gag order for the former president in the 2020 election interference case.
Rather, the Justice Department is pressing U.S. District Judge Tanya Chutkan in Washington to block Trump's “improper dissemination or use of discovery materials,” as Smith’s team told the judge in its pending motion. Such motions aren’t unusual in criminal cases, where prosecutors want grand jury and witness information protected to the extent possible.
Prosecutors were going to make this protective order motion anyway; they just added Trump's post for additional support.
What’s unusual, of course, is citing a leading presidential candidate’s social media threat in support of such an order. Where Trump’s post comes in, as the government frames it, is to show a recent example of him being unhinged. The former president posted Friday, days after being indicted in the 2020 election case: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
Smith’s team cited Trump’s words after arguing the DOJ’s proposed order “is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him.”
After screenshotting Trump’s post, the government observed: “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.”
So, again, the special counsel isn’t looking for a gag order. At least not in this motion. Even if Chutkan grants the protective order, and she probably will in some fashion, that alone wouldn’t preclude Trump from publishing similar broad threats going forward. Prosecutors were going to make this protective order motion anyway; they just added Trump's post for additional support of their claim that such an order is needed for this particular defendant. (If you want to read the specific language Smith wants in the order, his proposed order is here.)
And taking a step back, even if this protective order motion isn’t about trial timing, it’s not entirely unrelated to that ever-important issue across all of Trump's cases.
The government is pushing for the order so prosecutors can turn over discovery to Trump ahead of trial. One of the ways the defense will likely try to delay the case is by arguing for needing more time to review the evidence. The sooner the defense gets that evidence, the less excuse it has for delay. To be sure, the defense should be given ample time to review discovery — but that doesn't entail indefinite delay through the election season because the defendant happens to be running for president.
And though it’s early in the case, Chutkan seems eager to get the ball rolling, ordering the government to propose a trial date by Thursday. Litigation over the weekend further showed she isn’t up for unnecessary delays, as she denied Trump’s request to extend his deadline to respond to Smith’s protective order motion. It’s still due Monday at 5:00 p.m. ET.
Whether Chutkan fully grants the protective order or some modified version of it, given her denial of Trump’s attempt to delay his response and her apparent desire to get a trial date on the calendar, expect her to issue that order expeditiously.