Thread by @Brandi_Buchman

TODAY: The birds and I are up early here at the Prettyman courthouse where I await a hearing before Judge Tanya Chutkan on a protective order sought by Special Counsel Jack Smith in Donald Trump's Jan. 6 indictment. Hearing starts at 10AM ET. I hope you'll join me for updates. https://t.co/iBQqOKiCbx

https://twitter.com/Brandi_Buchman/status/1689704248148144128

Lauro: Your honor, I think you hit the nail on the head
Judge Chutkan, joking: That may be the last time you say that
Lauro laughs, everyone laughs, and says he doubts that, your honor.

Lauro: We're asking the govt to show good cause. Your honor designated those items under rule 16 and case law - extrajudicial speech, or public speech is not one of the good cause factor
Chut: It is if that speech causes witness intimidation or harassment. It must always yield

Chutkan: The fact that he's running a political campaign means he has to yield to the ordinary order of justice

There's back and forth. Lauro says we don't have normal situation, normal order here

Chutkan what about situation where person is denigrating a witness - what is meant to protect that from happening?
Lauro: Obviously since prosecutors brought this case in the middle of campaign, Trump has right to respond to political opponents...

Chutkan: But that has to yield. Regardless of what is going on with his, I hate to say, his day job, this is a criminal case. The need for this to proceed in normal order and protect witnesses, integrity of process means there are going to be limits on defendant's speech

Lauro says Trump can't be subject to a contempt trap.
Chutkan cuts: What we're talking about here are the parameters of this order. What we're all considering means there are certain things, if they have impact on admin of justice or witnesses, can't be said regardless...

Chutkan cont:: of what political activity defendant is engaged in.

Lauro says if Trump has a memory of something on campaign trail he wants to talk about, he's entitled to speak about it.
Chutkan explainis no, Trump can't speak about details of the case he's being tried on...

Lauro says subject to limitations Chutkan has described , Trump understands he has to abide by the rules of this court...but he still balks at "speech"

Chutkan: What the effects on the political campaign are, are not before me and will not influence me here. This is a criminal trial. Brought at the time the prosecution was ready to bring charges. I don't have any control over that. I cannot and...

Chutkan continued: ...and will not factor in my decisions on whether it will effect a political campaign on either side.

Lauro says Trump is overburdened by requirements that counsel are present to review sensitive materials; he argues witness interviews should be designated as not sensitive.
Chutkan says she will get to that.

Lauro calls Smith's request a "blanket" order and says it is too ambiguous. He adds: The risk is someone can say something in a heated debate or campaign, and then someone will throw a flag, because 'somewhere in bowels of discovery' someone will find something to ding Trump with

Lauro says they will abide by whatever order she sets and will respect the court.
I'm happy to hear that, Chutkan says.
Lauro is still pushing.

Lauro: We can't ignore he's in the middle of political campaign.
Chutkan: I reiterate: the existence of a political campaign is not going to have any bearing on my decision, any more than any other lawyer coming before me saying their client needs to do their job

Chutkan keeps trying to parse between non-sensitive and sensitive materials. Lauro says that's why they wanted order to put burden on prosecutor to determine what is sensitive or not.

Windom is now up: Defense counsel has made comments that are political in nature here in this courtroom. I wont address those but I will say, it is emblematic of what the defendant has done more recently, incl. since we filed a week ago

Windom: Counsel has made no secret what his intention is. The good cause here is prevent pollution of the jury.
Chutkan: This is the first thing. I want you to focus on sensitive vs non sensitive and whether it should all be subject to the order

Windom: Govt's aim is to prevent any disclosure of information that would taint jury pool
Chutkan: I agree but you still have to show cause for the non-sensitive
Windom: I cant be more specific. They have ID'ed what they intend to do with it, even if its NOT sensitive

Windom says what Trump intends to do pretrial could still damage jury pool, still intimidate witnesses.
Windom notes other orders just like this have come before it in other cases; he cites Butina.

Chutkan: I think the diff. with the Butina case, which now seems so small and quiet - there was no argument there in that case that the defendant needed to speak. Like i said to Lauro, the fact that there's a political campaign wont influence my decision one way or another but...

Chutkan:
I do have to weigh all limitations on the defendants 1a rights. even without protective order, trump is subject to pretrial release conditions which also prevent him from interfering with ordinary administration of justice or prevent him from...

Chutkan cont: ...engaging in behavior that could harrass or intimidate witnesses.
Windom: the PO just limits the information and data he could use in the event he wants to go after a potential witness

Windom...But if he says something clearly he got from transcript.
Chutkan: But a transcript could be designated as sensitive... see, I'm really trying to determine if i need to subject the non-sensitive materials in the order...

Windom says its hard to speak in abstract, but in addition to overriding principles laid out by govt, 1) the govt's order is appropriately limited. iit does exempt info that is public, the defendant or defense attys come into independently unrelated to discovery process...

Chutkan: it is close. At this point, im not persuaded, govt has shown good cause subject to the protective order for all of the information in this case. I will adopt that defendants provide scope and govt deems what is sensitive.

Chutkan: I will tell you, the defendant is ALSO covered by conditions of release and ALL of his behaviors and statements are governed by the conditions of release.
If Trump makes statements that intimidate or harass witnesses, she warns, she will be scrutinizing that closely

She does not accept Trump's edit that exempts from protective order any records that become publicly available. Discovery mats could become public any number of ways, some improper.
Chutkan says instead, she'll retain gov lang that exempts only records that are publicly avail

Para 3: Defense wants to broaden def of authorized persons to review protected materials, to include not just ppl employed by Trump, but anyone assisting iin any capacity, including attys, paralegals, expert witness advisers etc.
I am not comfortable with that, Chutkan says

(i missed her input on para 2 of the proposed order. will have to come back to it. Apologies.)

Lauro: As we build our team with this incredibly large team, we want to have consultants and others working with us, including some of us who have volunteered, like volunteer lawyers and paralegals.... it will be impossible to get ready for terms gov is seeking to be ready...

Lauro: it's an impossible task unless we have people who will abide by rules of this court but provide assistance.

Lauro: In order to defend this case, we have to have more manpower working on it.
chutkan: no one is more aware than i that you are defending mr trump in more than one jurisdiction. not withstanding that fact, there is a process.

Chutkan conti: I can't allow a definition that would allow anyone, including potentially, unindicted co-conspirators, to have access to these materials. if there's a lawyer or consultant or paralegal you want to have assist you, then...

Chutkan cont: ....that person needs to be, or fit the definition and be subject to the protective order. the definition you have currently is too broad. it allows just about anyone— i live in Washington. anyone can be a consultant....

(Its true, I'm a private consultant for ice cream)

Lauro asks to submit alternative language but adds:
"Anyone who sees any discovery in this case will be done at my direction, it will not be haphazard"
Chutkan: Anyone who sees discovery will have to sign and understand they are bound by the protective order

Transcripts and audio recordings Windom is worried about - they are not from confidential sources? Chutkan asks.
Windom: During course of investigation, it was govt general practice to audio record witness interviews outside of the grand jury, they fall into prep for grand jury

Windom: There are 100s of recordings of witness interviews, what is or is not confidential, it's hard to say when you're talking about a recipient fact witness to the defendant's criminal conduct.

Wiindom: It will prevent defendant from putting a post out, and attaching a 3 second snippet of an audio recording; it'll prevent him from sending out a mass mailing to the prospective jury pool in DC; it will prevent pollution of jury pool... that is the import

Chutkan; Other materials you are concerned proposed language would exclude?
Windom: Defendant's proposed language, we would construe it broadly. We would have to designate all of those transcripts should court go with defense here but I anticipate it will result in...

Windom continued: ... protracted litigation. ...

Now light paraphrase from me: Windom says he doesn't want to come into court and have parties need to go line by line to decide whether or not what Trump said that weekend in the press was from an interview in discovery.

Chutkan to Lauro: Your client's defense is supposed to happen in this courtroom. Not on the internet. To extent he wants to make stmts on the internet, they have to always yield to witness security and safety. That's what I'm worried about. (SEE, HE'S NEVER BEEN UNDER A GAG ORDER

Lauro says it won't be fair for prosecution to "throw the red flag" and call a violation when Trump goes on press blitz/talks about case etc

Chutkan says Lauro isn't helping himself. He's causing her some concern.
She notes: The former POTUS who is engaged in a political campaign, talking about potential witnesses who may not have the kinds of protection he has - I could see possibility for a lot of problems here.

There's going to be arguments on the campaign trail. If one of Trump's statements overlap into discovery, we suddenly have a problem, Lauro says.
Trump shouldn't have that chill
Chutkan: He is a criminal defendant. He's going to have restrictions like every other defendant.

Chutkan: The fact that the defendant is engaged in a political campaign is not going to allow him any greater or lesser latitude than any defendant in any criminal case.
Lauro: We understand, absolutely, but the order paints too broadly. All we're asking for is more specificity

Govt should good cause for why materials are sensitive.
Chutkan says, I agreed with you. But as to the non-sensitive information, it wouldn't be covered. But now were' talking about what can be designated as sensitive and so far, I'm not persuaded by your argument that...

Chutkan cont: witness interviews and recordings are not covered...
Lauro: I think govt can easily ID what they think is sensitive in transcripts, video and so forth. They're capable of that rather than this broad category...

Windom: The govt sproposed order is much more specific. The defendant's order is nebulous about what is a confidential source etc. Every single person we interviewed is a potential trial witness.....

Windom cont: All of them are sensitive. I guess next arg from defense would be, designate specific pages.. That is antithetical to the smooth and orderly discovery process that this court should impose here

Chutkan will keep the language in the govt proposed protective order around sensitive materials in place because she says she is concerned about witness intimidation, safety and order.
Either side can seek a modification later, she notes.

Here is a copy of the govt's proposed protective order:
documentcloud.org/documents/2390…

Here is a copy of Trump's proposed protective order in response to the govt:
documentcloud.org/documents/2390…

Materials obtained from other governmental entities for discovery will be considered sensitive materials, Chutkan says, as govt proposed.
Lauro gets a dig-in (or 2) at J6C before saying he has concern that non-sensitive or public items could be swept up into sensitive materials

The govt said it will conspicuously mark sensitive materials in discovery in its proposal. Chutkan asks if prosecutors intend to segregate and mark all sensitive materials (like every page) because if they just mark, for example, top page, of a packet, it may get lost

Windom argues that the govt rejected Trump's suggestion that prosecutors mark sensitive materials with a page by page stamping because that would be prohibitively slow and Chutkan agrees. Windom says there will be multiple demarcations

Someone who sees Lauro, tell him to make sure he leans into the microphone or speak up

Chutkan: I do think marking every page would be unworkable and would delay this for a reason that is not really a problem. I don't mind taking the time to ensure things are done right. But it seems like a solution in search of a problem

Lauro: We're fine with it. I just resent the fact that govt has been searching for prior orders in other cases...
Chutkan cuts in, laughs and smiles and says, "All right... I feel your pain"
Lauro smiles a bit, he's amicable in this moment

She will also retain govt's language in place that defines authorized persons who can review discovery materials; defense wants to remove their obligation to review trump's notes re: sensitive materials and not include personal ID'ing information. Chutkan rejects this.

(We are at paragraph 10 in the proposed protective order here)
documentcloud.org/documents/2390…

Lauro: says he wants Trump to be able to review some of these documents in private and not have attorneys literally sit next to him while he reviews transcripts and other sensitive information
Chutkan: Well...

Chutkan: Would your client be able to review notes and materials in private but afterward, you have to check his notes to make sure no personal ID'ing material was not included in those notes?

Windom notes that defense didn't object to this language but he understands Lauro is asking that he need not sit next to Trump the entire time he reviews materials. Windom explains, its about collecting the material after the sensitive review is done...

Lauro says their objection is also to not being able to provide a copy to Trump.
Lauro: if there's a transcript or video of witness, i want to be able to share it with my client without having to sit in the room with him or someone from my defense team. that becomes impractical

Lauro: Have the client read transcripts that could be relevant and then coordinate with us.

(Defense making a lot of promises on Trump's behalf he has historically had trouble holding up)

Chutkan: Im inclined to allow the order to say that defense can inspect any notes, would apply whether Trump is accompanied by counsel or other legal staff.. so what's the harm or prejudice you see arising from him being able to read materials by himself vs with staff

Windom: The defense has a certain level of trust in defendant that the government does not.

(Understatement of The Year)

Windom notes how Trump has said in press that there shouldn't be a protective order at all....he's indicated potential to break terms...
Chutkan says she shares his concerns (I was a defense attorney, so sometimes we will diverge, she says as she laughs)...

But she wants more information.
The notes will be reviewed to ensure they don't include identifying information?
Windom: The protective order will limit risk.
Chutkan: How though?

Windom: The defendant, when only with materials himself, could photocopy, reproduce sensitive materials if he's alone. That risk is much lower than when in the presence

Judge Chutkan: you mean live tweeting?
Windom, in a reference to Trump's Mar-A-Lago troubles: " I mean taking a photo of it, any of it. He's shown a desire to hold onto materials he should not."

Chutkan says she thinks it would be burdensome for legal staff to be present any time Trump reviews materials.
Windom says ok, but he shouldn't be allowed to have any devices or computers or anything that would allow him to replicate the materials

Then, Windom says, someone has to be right outside the room he reviews materials in to collect them so they aren't left there or lost.
Chutkan says of course then asks about protective order in Florida and aks why Lauro rejects it here but Trump didn't do it there.

Chutkan: even if defendant is reviewing alone in a room without device to reproduce.. somebody has to safeguard it, collect it
Lauro: Respectfully, govt hasn't shown good cause for that intrusion
Chutkan: but the materials still have to be safeguarded and collected

Lauro: The practicality of a case like this, of this magnitude with a number of documents involved based on what folks here are requesting would put Trump and his defense team at an incredible disadvantage

"If Trump made any statements in violation of the order, then that's a problem." - John Lauro, Aug 11, 2023, 11:23AM ET

It might be more persuasive, Chutkan says, if Trump didn't enter into a protective order ag in Florida. She won't agree with anything that could result in sensitive materials being disseminated to the public, she notes.

So, a compromise will be struck.
Chutkan: i will allow the defendant to review the sensitive material without being accompanied by a member of his legal team next to him. But i will retain provision that requires counsel/team to review any notes...

Chutkan continued:... to ensure no personal identifying information is kept and if he is to review those materials alone, the defendant cannot have access to a photographic device, copy machine, or anything that could reproduce or copy those materials.

Windom: The issue remains over keeping custody on breaks or lunches
Chutkan: Oh yes, those materials must be safeguarded. they can't be left alone. And certainly, he can't carry them around with him.

We are now onto the 11th paragraph in the gov't proposed order:
Chutkan decides parties can redact materials during the trial or without leave of court. but if parties disagree on redactions, must be handled with court

Chutkan requires regular procedure for filing materials under seal and notes: redacted copies of sealed materials will be filed on public record if she grants the motion.

Onto para 12: Chutkan says parties can introduce redacted sensitive materials during hearings without leave of court so long as both sides agree, but cannot seal unredacted materials during hearings without first seeking leave of court

Chutkan says she will release a protective order with a few revisions in short order.

Now, other issues: last night she denied motion from govt to file something under seal. She says she wants as much of this trial on the public record as possible. The motion didn't persuade her it needed to be filed ex parte and the motion had no bearing on her decision today

Govt wants to hold CIPA hearing to discuss small amount of classified materials on the 28th; Lauro agrees. Chutkan says it will be part of the status conference on that day.

Chutkan: I expect parties to confer before filing any non-dispostive motions and indicate in caption whether it is opposed or not... Just say, defense opposed or unopposed so I know to give time and have a briefing schedule

Lauro says govt wont tell them how much discovery there is. They want a Rule 16 conference no later than Monday at 5 to discuss these issues so they can respond to trial schedule.
Chutkan says, here's the thing...

Chutkan: The govt is prepared to give you that information as soon as I file a protective order, correct?
Windom says yes, the govt has been trying to get this question answered (how much is in discovery, a terabyte? more?) for defense for some time now.

Windom says there is a hard drive to go over, that they will send to defense....
Chutkan: why cant you tell defense?
Windom: He'll have it in a letter in 24 hours.
Chutkan pushes him to disclosure now if he can.

Now: Prosecutor Thomas Windom says there are 11.6 MILLION pages or files which are load ready, available at length in discovery. He adds: there's a hard drive with 270d returns and extractions and still believes discovery would be complete, substantially ready by Aug 28

Chutkan turns to Lauro and says she would imagine given that information, he will want to change whatever he had in mind for a proposed trial date

Wrapping it up now Chutkan has a few notes:
I am committed to making sure this case proceeds in the normal order. The protective order is just one example of that. Courts routinely enter these orders for many of the reasons I've discussed today...

There are no motions based on Trump's recent statements about the case. They don't violate terms of release. But I do want to issue a general word of caution. As I have stressed at several points, I intend to ensure the orderly admin of justice and even arguably ambiguous stmts..

Chutkan cont: If they could reasonably be interpreted to intimidate witnesses or taint jury pool....it will be addressed.
Chutkan says take special care about your public statements and she will take whatever measures are necessary to safeguard the integrity of the case

Chutkan: I will see you all on Aug 28.

And that ends it today. I will have an update story out soon for Law&Crime.

STORY on today's hearing here.

lawandcrime.com/trump/trump-la…