Legal experts: Trump lawyers “undermined” their own argument — and Jack Smith walloped them

Smith's team insisted on a protective order, accusing Trump of seeking to "try the case in the media"

By Igor Derysh

Managing Editor

Published August 8, 2023 8:43AM (EDT)

Former President Donald Trump speaks during the Moms for Liberty national summit on June 30, 2023 in Philadelphia, Pennsylvania. (Michael M. Santiago/Getty Images)
Former President Donald Trump speaks during the Moms for Liberty national summit on June 30, 2023 in Philadelphia, Pennsylvania. (Michael M. Santiago/Getty Images)

Special counsel Jack Smith's team on Monday accused former President Donald Trump of trying to publicly disclose evidence and trying his election conspiracy case in the media in response to a filing from Trump's lawyers asking the judge to reject a proposed protective order in the case.

Smith's team over the weekend asked U.S. District Judge Tanya Chutkan to issue a protective order barring Trump from releasing evidence after Trump issued a seeming threat on Truth Social, writing "IF YOU GO AFTER ME, I"M COMING AFTER YOU!"

Trump's lawyers filed their response on Monday, five minutes before Chutkan's imposed deadline, asking the judge to limit the order to "genuinely sensitive" material.

"In a trial about First Amendment rights, the government seeks to restrict First Amendment rights," Trump's attorneys wrote. "Worse, it does so against its administration's primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations."

Former federal prosecutor Renato Mariotti said Trump's legal team "dresses up a fairly mundane dispute about the scope of a protective order to make it seem like a First Amendment fight with the Biden administration."

"Lots of flash and very little substance," he tweeted.

Former federal prosecutor Andrew Weissmann called the First Amendment claim "bogus" because the Constitution allows a defendant to be jailed pending trial and face restrictions if he is released.

Trump's lawyers in a footnote insisted that Trump's Truth Social post was "generalized political speech, not directed to this case." In the same footnote, MSNBC legal analyst Lisa Rubin noted, Trump's lawyers accuse Smith's office of "pos[ing] the greater risk of improper disclosure, given the frequency of apparent leaks from the Special Counsel's office."

"The most important thing to know about Trump's opposition to the government's proposed protective order is this: He wants the freedom to disclose witness interviews, recordings, etc. conducted outside the grand jury," Rubin explained. A fight over which evidence is too sensitive could slow down proceedings but "it's more than timing. A protective order that allows Trump to reveal the identity of witnesses and discuss the substance of their statements outside the grand jury could 1) prejudice potential jurors; and 2) intimidate, if not endanger, some of the most helpful witnesses," she added.

Smith's team fired back in a quick response filing Monday afternoon, accusing the former president of seeking to "try the case in the media rather than in the courtroom," calling out Trump attorney John Lauro for appearing on "five television programs" on Sunday to discuss the case in "detail."

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"The defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him," the filing said. "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."

National security attorney Bradley Moss criticized Trump's team for "stepping on rakes" by undermining their viable legal arguments by "peppering your pleadings with political hyperbole."

"It does not help your argument and will annoy the judge," he tweeted.

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"Trump's team undermined their arguments with extraneous hyperbole and Smith is hitting them for it," he added.

Chutkan late Monday ordered both sides to schedule a hearing this week to discuss their arguments. Trump has repeatedly lashed out at the judge, an Obama appointee who has issued the harshest sentences on Jan. 6 rioters, accusing her of bias and demanding she be recused.

"Trump may win a few points in this battle (although Smith will likely win more)," predicted CNN legal analyst Norm Eisen, "but the speed at which this is moving suggests he will lose the war."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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Aggregate Donald Trump Jack Smith Politics Tanya Chutkan