Special Counsel Jack Smith tore into John Lauro, attorney for ex-President Donald Trump, over his media tour in a new filing to support his request for a protective order.
On Friday, Smith reacted to a Trump Truth social media post, which said, “If you go after me, I’m coming after you,” by filing a request for a protective order, arguing Trump posts could have a chilling effect on witnesses.
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But over the weekend, Lauro performed what’s known in the business as a “Full Ginsburg,” appearing on all five Sunday shows to spread the same set of talking points he’s been reciting into any microphone that will have him.
On Monday, Smith cited those appearances in a new filing to support the protective order he has proposed to Federal District Judge Tanya Chutkan:
The central purpose of criminal discovery is to provide the defendant with materials necessary to prepare for a fair trial. To facilitate the efficient production of discovery to the defense, the Government proposed a reasonable protective order consistent with current practice in this District. The defendant instead proposed an order designed to allow him to try this case in the media rather than in the courtroom. To safeguard witness privacy and the integrity of these proceedings, the Court should enter the Government’s proposed protective order.
Smith cited chapter and verse from those appearances:
On Sunday, August 6, defense counsel appeared on five television programs and discussed this case in detail, publicly commenting on topics including the parties’ disagreement over the protective order, the defense’s planned legal arguments, the defendant’s actions and statements during the charged conspiracies, and expected testimony of a prospective witness. For instance, regarding the protective order, defense counsel stated:
On CNN: “[T]his protective order that’s being suggested by the Biden administration is an effort to keep from the press important non-sensitive information” and “we will not agree to keeping information that’s not sensitive from the press. The press and the American people in a campaign season, have a right to know what the evidence is in this case, provided that this evidence is not protected otherwise. So, we’re going to oppose it, as we have. But for whatever reason, these lawyers on the prosecution team want to keep that from the press.” Defense counsel then suggested that the Government, by its proposed protective order, was “trying to impinge on the freedom of the press.”
• On ABC: “This is an attack on you and members of the press. I’m really surprised people haven’t spoken out about it. What the government – what the Biden administration is trying to do is prevent the press from learning about exculpatory and helpful information, evidence that the people have a right to know about. What the position of the prosecutor is non sensitive, ordinary evidence should not be disclosed to the press. That’s shocking. Not only do they want to violate President Trump’s First Amendment rights, they want to violate Freedom of the Press, and I’m surprised that the major networks aren’t filing papers along with me on Monday.” Defense counsel then suggested he could “get [the ABC reporter] a lawyer” to engage in litigation over the protective order.
• On NBC: “Well, I’m shocked and I can find you a lawyer to address this, but I’m shocked that all of the news media outlets aren’t protesting what the government is trying to do. They’re trying to say that we have discovery that’s not sensitive, but we don’t want the press to hear about it, and Mr. Trump, our team is saying, President Trump is saying that if there’s evidence out there that the government has that’s exculpatory or informative, then the press has a right to know, but the Biden administration doesn’t want the press to know that, and I’m shocked that there aren’t petitions now filed in the district court opposing what the Biden administration is doing.”
• On CBS: “We’re all in favor of protecting sensitive and highly sensitive information, but it’s unprecedented to have all information hidden in a criminal case, including, by the way, information that might be exculpatory and might be exonerative of President Trump. The Biden administration wants to keep that information from the American people.”
• On FOX: “The Biden administration wants the judge to put in place an order that will prevent the press from obtaining exculpatory and material information that might be relevant to these proceedings, even though Mr. Trump, President Trump, has argued from the very beginning, as I have, that this is an attack, this indictment is an attack on his First Amendment rights. Now what the Biden administration wants to do is deny all Americans the opportunity to learn non-sensitive information about what the case involves, in a political season.” Defense counsel continued, “I’m convinced the Biden administration does not want the American people to see the truth, and they acted on it by filing this protective order, which is an effort to keep important information about this case from the press. I’m shocked that all the networks haven’t lined up and filed pleadings already, objecting to this very broad attempt by the Biden administration to keep information away from the American people during the election season. The American people have a right to know. Of course, Joe Biden doesn’t want that to happen.”
In television appearances, defense counsel also made specific claims about what the defendant allegedly said and did during the charged criminal conspiracies, and discussed anticipated testimony of Michael R. Pence, stating on ABC that the former Vice President would “be one of our best witnesses,” and on CBS that “the Vice President will be our best witness.”
The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign. The Court should instead enter the Government’s proposed order.
Judge Chutkan ordered a hearing to decide the issue no later than August 11, 2023.
