Left: Special counsel Jack Smith arrives to speak about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington. (AP Photo/Jacquelyn Martin)/Right: Former President Donald Trump arrives to board his plane at Ronald Reagan Washington National Airport, Thursday, Aug. 3, 2023, in Arlington, Va., after facing a judge on federal conspiracy charges that allege he conspired to subvert the 2020 election. (AP Photo/Alex Brandon)
Special counsel Jack Smith has urged a federal judge to rebuff Donald Trump’s latest attempts to have his Jan. 6 indictment tried “in the media rather than in the courtroom,” and forestall what they worry would become a “carnival-like atmosphere” where the former president jeopardizes evidence, witness safety and the integrity of proceedings overall.
Indicted just a week ago, a quickly forming fight over what is typically a standard process for discovery continued with Smith’s filing on Monday night.
Trump, who faces criminal conspiracy and obstruction counts in Washington, D.C., for his efforts to overturn the results of the 2020 election, has argued — among other things — that he should be permitted to share unfiltered evidence in discovery publicly and with anyone from paralegals to unpaid advisers to “volunteer attorneys” and others he’s tapped to assist him in trial preparation.
This all poses an array of significant problems, according to Smith.
“For example, several co-conspirators are identified as attorneys, whom the defense might interpret as ‘other attorneys assisting counsel of record,” Smith wrote.
He also noted that, if permitted, the “boundless” nature of Trump attorney John Lauro’s modifications to the proposed protective order would very likely mean that grand jury materials could be exposed by the former president in the not-so-distant future.
To underline this, Smith noted in an eight-page reply that over the last weekend, federal prosecutors explicitly told Lauro they would give Trump’s team transcripts and audio recordings of interviews done outside of the grand jury process, something that, as a practical matter, the federal government is not obligated to provide at this stage in proceedings.
Despite that offer, Trump’s team was not sated and Lauro appeared on five separate television programs to discuss the case last weekend and publicly comment on the brewing legal battle while skewing critical details of the case and potentially running afoul of local rules regarding the conduct of attorneys in criminal cases.
Lauro’s media appearances also touched on the subject of anticipated witness testimony; he directly mentioned former Vice President Mike Pence at one point telling hosts on ABC and CBS that Pence would be “one of our best witnesses.”
Attorney for former President Donald Trump John Lauro arrives with Trump at Ronald Reagan Washington National Airport, Aug. 3, 2023, in Arlington, Va. Former Vice President Mike Pence is refuting claims from ex-President Donald Trump’s legal team that Trump never asked him to reject votes from certain states while certifying the 2020 election. (AP Photo/Alex Brandon)
Lauro appeared on CNN, NBC and Fox too and it did not go unnoticed by federal prosecutors how Trump spent his day before Lauro hit the media circuit and discussed Pence, among other things: Trump spent it lashing out at Pence on social media — precisely the sort of thing that the protective order initially requested by the government would alleviate.
In response to all of the proposed revisions, Smith and federal prosecutors Thomas Windom and Molly Gaston emphasized that Trump’s “stated goal” was clear: he wishes to try the case in the press and local rules clearly and cleanly forbid this.
“[There] is no right to publicly release material, because the discovery process is designed to ensure a fair process before court, not to provide the defendant an opportunity to improperly press his cause in the court of public opinion,” the government argued.
“Normal order should prevail. No oral argument is necessary,” Smith wrote.
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U.S. District Judge Tanya Chutkan, who is presiding over the matter unfolding inside the E. Barrett Prettyman courthouse, responded to the back and forth quickly late Monday evening.
Ultimately, both Trump’s team and the special counsel were asked to confer on a time to meet this week to hash out the terms of the protective order. Judge Chutkan asked that the parties meet by Friday, Aug. 11 if everyone had availability.
Then, on Tuesday afternoon, with roughly a half-hour to spare until a 3 p.m. deadline Chutkan imposed for the parties to reconcile, Smith and Lauro filed a joint notice.
The two parties were noticeably disparate in their approach.
Prosecutors concisely offered, as anticipated given their broadcasting of it in filings and court appears, any time this week to convene.
Trump’s lawyers, however, expressed an impending potential conflict: Trump is also being indicted in Florida and Todd Blanche, Lauro’s co-attorney in the Jan. 6 case, will be representing Trump in Miami where he’s facing criminal charges involving classified materials found at his Mar-a-Lago estate.
And since Trump would like both of his lawyers present, and since Lauro prefers an afternoon session to the morning, Trump’s lawyers explained—given everything else—”we would respectfully request a setting on Monday (after 12:00 p.m.) or Tuesday (all day) to allow for both Mr. Blanche an Mr. Lauro to be present.”
NOW: Trump Team and Special Counsel Jack Smith file a joint order, notifying the court:
The government is available Aug 9-11.
Trump says he wont show, his attys will but they have a various number of options, conflicts…potentially floating dates into next week. pic.twitter.com/rRC3ulVlt0— Brandi Buchman (@Brandi_Buchman) August 8, 2023
Before 3 p.m., Chutkan had not yet filed a response though she has been remarkably swift in her responses thus far, taking time over the weekend to address the brewing fight with the protective order.
At present, the next date between Smith and Trump before Judge Chutkan is formally set for Aug. 28. It will be then that the parties could decide when the long-awaited trial will get underway.
Read the reply from the special counsel here.
Read the joint reply from Smith an Trump’s attorneys here.
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