January 6 protective order grants some leeway to Trump

The special counsel’s team prosecuting the January 6 case against Trump may not designate absolutely all discovery materials as “sensitive.” But neither did Trump gain all the leeway he sought in the designation or handling of “sensitive” materials. Furthermore, materials independent of the discovery process are by definition not sensitive.

January 6 protective order in three versions

Per the docket page for the January 6 case, the government, on August 4, moved for a sweeping protective order. They might or might not have done so in response to a “trolling” post by Trump on Truth Social.

IF YOU GO AFTER ME, I’M COMING AFTER YOU!

On Monday, in a lightning-fast response to satisfy a tight court deadline, the Trump team filed a response. They did not object completely to any protective order. But their response contained redline and strikeout to make the protective order more reasonable. Exhibit A of the Trump response shows the proposed government’s protective order, with redline and strikeout showing suggested changes.

The government insisted in its reply that “all materials” should be subject to the protective order. In that reply they cited various appearances by John Lauro, Trump’s lead counsel, on various Sunday Morning talk shows. The reply does not mention Trump’s “trolling” of the government on Truth Social, but it does mention his “trolling” of former Vice-President Mike Pence. The government actually quoted this post:

WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was “too honest.” He’s delusional, and now he wants to show he’s a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!

(But the government saw fit not to address whether Pence shared notes of his telephonic conversations with Trump before January 6 with the government, who then used those notes to prepare their grand jury presentment.)

Yesterday Judge Tanya Chutkan held a hearing on the matter. At that hearing, according to Newsweek, she said the government had not adequately shown why the court should treat all materials as sensitive. As to “witness intimidation,” the judge referred to Trump’s “conditions of release” to cover that consideration.

The final protective order

The protective order, in its final form, does grant a difference between sensitive and non-sensitive discovery materials.

But it doesn’t give the Trump team everything they wanted. Paragraph 8, which governs the designation of sensitive materials, still declares all:

Recordings, transcripts, interview reports, and related exhibits of witness interviews; and Materials obtained from other governmental entities

as subject to the government’s declaration that they are sensitive. Still, the order allows Trump to challenge a sensitive-material designation in a specific motion.

With regard to the eventual destruction of sensitive materials (Paragraph 6), the Trump team did get all they wanted. That proposed paragraph survives almost intact from the Trump response.

From its reply, the government is clearly trying to present the January 6 event as a terrorist incident. That reply cites a case involving the prosecution of Zacharias Moussaoui, the “Twentieth Hijacker” of September 11 fame.

Thus far the docket still does not reflect any motions for change of venue. But lawyer John Lauro did say afterward that “we are in uncharted waters.”