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DOJ seeks to protect evidence in Jan. 6 charges against Trump

The former president already has been posting on social media about the judge, witnesses and special counsel

Former President Donald Trump speaks Saturday as the keynote speaker at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party in Columbia, S.C.
Former President Donald Trump speaks Saturday as the keynote speaker at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party in Columbia, S.C. (Melissa Sue Gerrits/Getty Images)

Attorneys for Donald Trump explained Monday how they’ll protect evidence in the case connected to his efforts to overturn the 2020 election — although their client spent the weekend complaining about prosecutors and the judge on social media.

Federal prosecutors had filed a proposed protective order on Friday, writing that it would allow the government to provide Trump with discovery information while “protecting a large amount of sensitive and confidential material.”

The filing, from Justice Department special counsel John L. “Jack” Smith and other prosecutors, said the proposed protective order aims to prevent any improper sharing of discovery materials, something that’s “particularly important” because Trump has issued public social media statements about witnesses, judges, attorneys and other people tied to matters against him.

Prosecutors also pointed to a social media post from Trump’s Truth Social account on Friday, which read in all capital letters: “If you go after me, I’m coming after you!”

“If the defendant were to begin issuing public posts using details—or, for example, grand jury transcripts—obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” the prosecutors wrote in the filing.

In a response Monday, Trump’s attorneys argued the government went too far to curtail Trump’s free speech, particularly during a presidential campaign.

Restricting documents tied to the case would run “contrary to established law and President Trump’s First Amendment rights,” the filing said.

Over the weekend Trump posted about the case several times on Truth Social, including comments about Smith, federal Judge Tanya Chutkan and former Vice President Mike Pence, a potential witness in the criminal case against him.

Trump continued posting after the federal prosecutors’ filing, including several posts about Pence Monday morning.

“I never said anything bad or even slightly inappropriate to Liddle’ Mike Pence. What I did do was make him, over the many people who wanted it, Vice President of the United States. Disloyalty in politics is alive and well. MAGA!!!” Trump posted Monday.

The posts about Pence came after an interview the former vice president and rival for the Republican presidential nomination gave to CNN that aired Sunday.

“I have no plans to testify, but, look, we’ll always comply with the law,” Pence said, adding that he would tell the truth if called to court. “The American people deserve to know that President Trump asked me to put him over my oath to the Constitution, but I kept my oath and I always will.”

Trump faces four felony counts connected to a broad-ranging effort to overturn his loss in the 2020 election. Prosecutors alleged Trump tried to pressure state officials to stop vote-counting or change totals and Justice Department officials to issue false statements about fraud in the election and tried to enlist Pence to toss electoral votes of Pennsylvania and other states where Trump lost.

Trump first appeared in court in response to the charges last week, where he pleaded not guilty. Magistrate Judge Moxila Upadhyaya arraigned Trump and also set a briefing schedule for Chutkan to set a trial date at an Aug. 28 hearing.

Among his social media posts from the weekend, Trump also indicated he will try to have Chutkan recuse herself from the case, calling her the “number one draft pick” of Smith. He also said his attorneys would attempt to move the case out of Washington D.C., where the attack on the Capitol took place.

“No way I can get a fair trial, or even close to a fair trial, in Washington D.C.” Trump posted in all caps.

Trump’s attorneys have not filed any court documents that request a change in venue or judge.

Trump allies have also rallied around arguments that the former president cannot receive a fair trial in Washington.

“The likelihood that a D.C. jury will vote to convict Donald Trump is exceptionally high, and the facts don’t matter, the laws don’t matter. They hate him,” Republican Sen. Ted Cruz of Texas said.

University of Michigan Law School professor Barb McQuade said getting a federal judge to recuse themselves from a case, or moving a case from one district to another, is a high bar.

The fact that Chutkan has handled a case dealing with Trump in the past — where she allowed the House select panel investigating the attack access to his White House papers — would not be enough, McQuade told CQ Roll Call.

“These arguments may sound good to Trump supporters and the general public but they are not going to fly in court,” McQuade said. “The mere fact that a judge ruled against you is not going to be enough.”

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