Published by The Lawfare Institute
in Cooperation With
Donald Trump’s attorneys, John Lauro and his partner, Gregory Singer, walk into the courtroom early. It’s 9:40 a.m. on the very Friday that they argued to the court was “lost … as an option” as a date on which to hold this hearing. The press corps is amused. “I guess they found a Friday that worked for them,” one reporter says.
Todd Blanche, arguably Trump’s head honcho attorney, arrives a couple of minutes later. The trio is jovial, smiling wide, setting up their desks. Blanche takes a seat across from Lauro and Singer, an unironic visual of a seasoned federal prosecutor on one side and a cast of local attorneys from Tampa on the other. But it's Lauro who has his game face on. He studies his iPad, punches a few buttons, cranes his neck when the judge’s chambers crack open and then shuts the iPad just as quickly. We still have seven minutes to go, but Lauro is ready. Blanche, on the other hand, wipes the tired off his face.
Then the next cast of characters arrive. Representing the “Biden administration,” as Lauro describes the special counsel’s team during his numerous Sunday talk show appearances, are Molly Gaston, Thomas P. Windom, and an FBI agent. They place their equipment on the desk. Blanche saunters to enemy territory, shakes hands with Windom and Gaston, and cups his hands to whisper something in Windom’s ear. The two smile, nod, and Blanche returns to his side. Lauro shakes Windom’s hand and waves at the others.
Then Judge Tanya Chutkan takes the bench.
She greets both sides with a big smile; she seems warmer than her pithy docket entries ordering this or that. An orange scarf that peeks out from her black robe adds to her presence.
But then she recites the criminal case number and then, “United States of America v. Donald J. Trump.” Not quite so warm now.
First, Chutkan takes care of housekeeping matters. The briefing schedule is on her mind. Under Rule 47(b), a party has 14 days to oppose a motion or as much time as the court allots it. Reply briefs must be submitted in seven days. She looks up from the text she’s just read and states, "I routinely depart from the 14 and seven day time limits, as do many of my colleagues, when it serves the interest of justice and efficiency." Then she smiles, and proceeds.
The purpose of this hearing, Chutkan states, is to resolve the parties’ inability to agree on the precise scope of a protective order. A protective order prohibits the defendant from disseminating materials obtained from the government during discovery. As Chutkan notes, the government’s proposed protective order is broad. It protects both sensitive and nonsensitive material “[t]o safeguard witness privacy and the integrity of these proceedings,” as prosecutors argue in their brief. Defendants objected to the breadth of the protective order. In their briefs, and on the Sunday morning talk shows, defense counsel requests that the court adopt their proposal, “which narrows the Proposed Order to shield only genuinely sensitive material from public view.”
After this level setting, Chutkan begins with the most obvious issue: the scope of the protective order. Citing the Supreme Court case United States v. Cordoba, Chutkan reminds the parties that she is bound by her constitutional duty to have the government show good cause for its version of the protective order. At the same time, she must balance the safety of witnesses, prevent perjury, and uphold national security. "Mr. Trump, like every American, has a First Amendment right to free speech,” Chutkan continues, “but that right is not absolute.” His speech is limited by his release conditions, she concludes, as well as an “orderly administration of justice.”
Chutkan calls Windom to the podium. If the government’s goal is to expedite the flow of discovery and protect sensitive materials, couldn’t those goals be met by the defense’s proposed protective order that limits the scope to just sensitive materials? Put another way, Chutkan wants to know why nonsensitive materials are being swept up in the government’s proposed protective order.
Windom offers what he calls “three overlapping good cause objectives.” First, the purpose of discovery is for a “fair and efficient adjudication in the courtroom,” instead of in the court of public opinion. Windom cites the judge’s ruling in a case about a Russian spy, Maria Butina. In that case, she shared the same concerns. Second, the government's proposed order is consistent with the goals of safeguarding witness security and preventing harm to their reputation.Finally, the government’s order is in line with the court’s interest in preventing pretrial publicity that could pollute the jury pool. “The defendant is asking for the court’s blessing, to use criminal discovery for political purposes,” Windom concludes.
Chutkan flashes a coy smile, much like this: 😏.
She asks the question again. What is the good cause to subject nonsensitive material to the government's protective order? Windom says he’s concerned that the defendant will use the nonsensitive information to sensationalize the case publicly and sully the jury pool, intimidate witnesses, and cause reputational harm to witnesses. See, for example, Lauro’s appearance on the Sunday morning talk shows to broadcast his strategy to have the public try this case, Windom quips.
But Chutkan is concerned that the government’s order may be so overinclusive that it limits Trump’s First Amendment right. When Windom tells her a vast majority of the material is sensitive, she suggests how she’ll rule on the case: Couldn’t the government delineate between what’s sensitive and what’s not, she asks counsel? He reminds her about the importance of “get[ting] this case to trial” as speedily as possible.
“Oh I know,” she quips.
Blanche chuckles. But Lauro doesn’t flinch. “You hit the nail on the head,” he says, as he smoothly saunters to the podium.
“I think that may be the last time you say that for awhile,” she says to laughter in the courtroom. She’s amused with her own joke too.
Lauro reminds the court that these are “uncharted waters.” Trump’s political opponent has dispatched his Justice Department to bring criminal charges against the former president, he argues. Trump has the right to speak about these issues.
Chutkan’s expression is changed. The corner smile has disappeared. One eyebrow lifts: 🤨. She leans into the mic. Her voice deepens, and the court is silent. If Trump’s speech causes witness harassment over the course of his political campaign, she says, “it 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.”
Do you have Mike Pence in mind, Lauro asks the judge as Blanche chuckles in the background.
“Or anyone,” she responds.
But if prosecutors decide to bring the case during a campaign season, “Trump has a right to address his political opponent,” Lauro responds.
Chutkan’s eyes roll to the back of her head. There are limits, she chides. There are limits to what goes on in his “day job” when he’s a criminal defendant. There will inherently be limits to his speech, she states.
“My client will abide by the integrity of the process,” Lauro starts but then says, but he “can’t be subject to some kind of contempt trap,” he insists.
Chutkan is baffled. “Nobody has talked about a contempt trap. We are talking about the parameters of [this] order,” she says. Trump’s speech rights must yield to pretrial release conditions and rules against witness intimidation.
But what about if Trump is talking about a memory on the campaign trail, Lauro pleads? If that memory intimidates witnesses, he can’t talk about it, she concludes with a sideways look at Lauro.
She has to level-set again, bringing Lauro back to the issue of sensitive versus nonsensitive materials. But Lauro is undeterred. The government’s protective order would provide an enormous political “advantage" to Biden and his campaign. He later paints a picture: In the course of a heated campaign, Trump may inadvertently say something that will cause prosecutors to throw a red flag up and say he was in violation of the protective order. “Everything that we do now is under a political microscope,” Lauro concludes.
Chutkan is firm in her next remark. “This is a criminal trial. I will not factor in the effects it will have on a political campaign on either side.” She repeats the sentiment. “The existence of a political campaign is not going to have a bearing on my decision. … I will keep politics out.”
When Windom takes the podium to respond, he begins by expressing the desire to avoid addressing the political comments by Lauro. Chutkan nods—she’s as warm as she was when the hearing started. A smile again starts off across her face 😌.
Windom again stresses the government’s aim is to protect any material in discovery, including nonsensitive information, for that material can still pollute the jury pool, intimidate witnesses, and cause reputational harm for the witnesses. He reminds the judge that the court in the Southern District of Florida entered the same order. The court should follow the Florida court’s lead.
Chutkan thinks for a second before answering. She’s reminded of the Butina case Windom had mentioned earlier, and she uses it to anchor her next point. “I think the difference between in the Butina case,” Chutkan begins, “which seems so small and quiet now,” she chuckles, was that “there wasn’t an issue that the defendant in that case needed to speak.” In Trump’s case, the political campaign necessitates the president to speak. So where is the line?
She reminds the parties that Trump is under pretrial release conditions that prevent him from polluting the jury pool, intimidating witnesses, and causing reputational harm to witnesses that the government is concerned about. Windom interjects and says the concern here is that the defendant could use nonsenstive data from discovery to go after potential witnesses publicly.
But such material could be marked sensitive, could it not, reasoned Chutkan?
“It is close,” she starts. “At this point, I’m not persuaded that the government has shown good cause to subject the protective order to all the information in this case.” She thus adopts the defense’s proposal but not without reminding counsel that Trump is still subject to pretrial release conditions. “Regardless of if statements are from discovery or not, if they have an effect on administration of justice” or intimidate witnesses or the like, “I will be scrutinizing them carefully.”
The hard stuff is over. Chutkan now turns to the defense’s red-lined proposed order. She denies the defense’s other exemptions of sensitive information that becomes publicly available. Instead, she instructs counsel to modify the protective order if materials become publicly available during the course of pretrial litigation. Similarly, she rejects the defense’s exemption to records Trump gets from ways other than from discovery. She also concludes that she is uncomfortable broadening the definition of “Authorized Persons”—or those who are permitted to view discovery materials—to allow volunteer attorneys, consultants, and other nonretained lawyers from accessing discovery.
Lauro pleads that the defense group is small, relative to the prosecution team. It’s an impossible task to expect defense counsel to triage through discovery on their own without support staff.
But, the judge asks, what if that support staff includes co-conspirators who have not yet been indicted?
Lauro pauses for the first time in the hearing and takes the question in. Eventually, the judge says, “The definition you have” of support staff ”is too broad. It allows just about anyone in.” She continues, “I live in Washington, anyone is consulting.” The courtroom breaks out in laughter, and Lauro smiles too. He tries to respond, but Chutkan is firm. Then she asks Windom to respond. He passes. “Sometimes it’s good to just move on,” she remarks.
She decides on a middle ground: to allow additional members who review discovery in this case to sign the protective order in writing.
Another dispute concerns Paragraph 8(e) of the defense’s proposed protective order. The defense strikes “recordings, transcripts, interview reports, and related exhibits of witness interviews,” which are designated as sensitive, and replaces the language with “information regarding the government’s confidential sources or which may jeopardize witness security.” The government objects, citing recorded witness interviews conducted outside of grand jury proceedings, as just one example, including interviews in preparation for the grand jury proceedings that would fall outside the scope of the protective order if the defense’s language is adopted.
Lauro, though, has a different concern. He’s worried about the transcripts from the Jan. 6 committee in the House, “assuming they didn’t destroy it,” Lauro quickly notes. “That clearly should not be designated as sensitive, particularly if it has Brady … materials.” In response, Chutkan chides Lauro for “conflating what your client needs to defend himself and what he wants to do politically. Your client’s defense has to happen in the courtroom, not on the internet. To the extent your client wants to make statements on the internet, he has to yield to witness’s security.”
“Trump will scrupulously abide by your orders,” Lauro promises. Chutkan gives him the side eye. But he asks her to consider the debate stage, where there are “arguments back and forth” and his statements may inadvertently implicate materials in discovery. “He should not have that chill in how he advocates,” Lauro contends.
Chutkan is apparently unmoved by Trump’s plight. “He’s a criminal defendant. He’s going to have restrictions like every other defendant. … The fact that he is a candidate does not give him [greater] latitude than any other defendant.”
She orders that the government’s language in 8(e) will be incorporated in her protective order. “Disclosure of any of these materials is too great a risk” both because every single person the government interviewed could be a potential trial witness and also because of the risk of polluting the jury pool. “I’m concerned that members of the public also, who are not bound by conditions of release, would intimidate witnesses” and threaten the integrity of the proceeding, she concludes.
Paragraph 8(f) also generates some debate. Defense counsel wants to nix “materials obtained from other government entities” as falling under the protection from the protective order.
Windom says, hold on, that bucket includes nonpublic transcripts from the House Jan. 6 committee.
Lauro springs to his feet, objecting that the provision is too broad a category and makes all materials obtained from government entities automatically sensitive. What if nonsensitive material gets swept up in this, he asks?
“I’m going to regret saying this, but parties are free to seek modification” of the order, Chutkan concludes and orders the retention of the government’s language.
With regard to defense counsel's broader request under Paragraph 8 that the government “conspicuously mark” sensitive materials, she orders that the government’s source logs that organize the materials by title, description, date, and a label for sensitive (as opposed to nonsensitive) is sufficient. She rebuffs the defense’s attempt to have prosecutors go page by page and mark documents.
Paragraph 10 also creates a minor kerfuffle. The paragraph governs the handling of sensitive information among authorized persons and the former president. The government proposed that the president not be permitted to view discovery without counsel present, and if President Trump “takes notes regarding Sensitive Materials, defense counsel must inspect those notes to ensure that [Trump] has not copied down personally identifying information.”
“This raises an important issue,” Lauro starts.
“As opposed to the other [issues]?” Chutkan asks.
Lauro’s warmed up to her. We all have. He chuckles. She chuckles. Blanche chuckles. We all chuckle.
What are we arguing about again?
“In 40 years of practice,” starts Lauro, “I have never seen counsel sit next to a client and babysit what they review and what notes they take.” The defense is short staffed compared to prosecutors. To spend time looking over Trump’s shoulder while he reviews documents would distract from the more important tasks needing to be completed for this defense.
Windom is not convinced. “Defense has a level of trust [for their client] that we don’t. … He has shown a tendency to hold onto materials he should not have.”
Windom expresses concern that, without supervision, Trump could photocopy the documents. Or he could do a less sophisticated operation and take a picture with his phone. He might even “Truth” it.
Chutkan comes up with a compromise. Trump is allowed to review sensitive information without his legal team present in the room, but the team must be present to retrieve the materials as soon as Trump exits the room. Any notes that Trump takes must be reviewed by counsel. And while Trump independently reviews the documents, he cannot have an electronic device with him that would allow him to take a picture or photocopy the document.
Paragraphs 11 through 13 don’t receive much debate, and the protective order released by Chutkan is pretty self-explanatory with regard to the requirements for using sensitive information in public filings.
Before closing, Chutkan goes over a few more housekeeping items. She notes that her decision to deny a motion for leave to file under seal did not have a bearing on her decision today. And after the government moved to schedule a conference under the Classified Information Procedures Act to discuss the small amount of classified information at issue in the case, the parties agree to hold the conference on Aug. 28, after the already-scheduled status conference.
In response to Lauro’s request that the government not hide the ball with regard to the volume of discovery, Windom discloses that the first production will include 11.6 million pages or files. There is also a hard drive of 2,703 other materials.
“I can just imagine your motion for a trial date now, Mr. Lauro,” Chutkan jokes. The defense team rolls with it.
Judge Chutkan ends with this:
I intend to ensure the orderly administration of justice in this case as I would with any other case. Even arguably ambiguous statements from parties or their counsel … can threaten the process. … In addition, the more a party makes inflammatory statements about this case which could taint the jury pool ... the greater the urgency will be that we proceed to trial quickly[.] ... I will take whatever measures are necessary to safeguard the integrity of these proceedings.
It’s now 11:29 a.m. The hearing is over.
Windom crosses to the other side and shakes the hand of defense lawyer Lauro. If the defendant weren’t Donald Trump, I’d argue this was a pretty standard confrontation between the government and defense counsel.