(Photo by Michael M. Santiago/Getty Images)
On Friday, Special Counsel Jack Smith moved to file a document under seal in the election interference case in DC. This motion was consistent with — in fact mandated by! — the protective order signed by the court back in August of 2023 and Local Rule of Criminal Procedure 49(f)(6)(i). If either party includes sensitive discovery material in a filing, it must file the document under seal along with a redacted version for the public docket.
And yet Donald Trump’s lawyers have seized upon this mundane occasion to throw a shrieking tantrum, accusing the Special Counsel of deliberately putting protected information on the public docket in advance of the election.
“The true motivation driving the efforts by the Special Counsel’s Office to disseminate witness statements that they previously sought to lock down is as obvious as it is inappropriate,” they fulminate. “The Office wants their politically motivated manifesto to be public, contrary to the Justice Manual and longstanding DOJ norms in cases not involving President Trump, in the final weeks of the 2024 Presidential election while early voting has already begun throughout the United States.”
The issue here is that, after giving Trump every little thing his heart could desire with respect to presidential immunity, the Supreme Court remanded the case to Judge Tanya Chutkan to determine what to do in light of its ruling that presidents can do crimes now. The trial judge asked the parties for their thoughts on how to proceed, and Trump said he’d like to do functionally nothing until 2025. The Special Counsel responded that his office was prepared to immediately defend its newly procured superseding indictment, particularly the decision to include the pressure campaign to convince Vice President Pence to accept fraudulent swing state ballots on January 6. And given the choice between NEVER and NOW, the court chose to get on with the matter.
Perhaps realizing their strategic error (or maybe because flopping is their favorite tactic) Trump’s lawyers responded with multiple motions demanding that the court reconsider its order that the special counsel defend his charging decisions, although none of these protests has actually been denominated as a motion to reconsider. Instead Trump’s counsel just screamed bloody murder about it in a response to a motion to exceed page length and a motion to compel. And now they’re yelling because Jack Smith didn’t redact enough, and Donald Trump is still under a gag order, and that is NO FAIR!
President Trump has abided by these restrictions for over a year. Yet now, in advance of predictable national news coverage, the Office seeks to disseminate protected content of Sensitive Materials, including direct quotations and summaries, while the gag order restricts President Trump’s ability to fully address the details of the filing on the campaign trail.
They whine that the Special Counsel objected to putting unredacted grand jury material on the public docket in Florida, even going so far as to school Judge Aileen Cannon on the difference between protected discovery materials (presumptively not public) and evidence at trial (presumptively public). And boy did she ever show them!
“The Office believes President Trump’s Constitutional rights to impartial jurors and fair proceedings—to say nothing of witness privacy and even safety—all take a back seat to the Office’s political goals,” they fume, seemingly impervious to the irony of arguing that Trump has a constitutional right to attack witnesses at a campaign rally while simultaneously accusing the prosecution of poisoning the jury with “impotent” redactions that fail to anonymize job titles.
And although the brief only spanned seven pages, Trump’s lawyers still managed to squeeze in an ad hominem attack on his enemies.
“While the Presidential immunity filing contains few, if any, new allegations not already covered in other politically motivated and inaccurate lawfare efforts that President Trump’s opponents have improperly funded and disseminated, it is irresponsible for the prosecutors to so quickly abandon the safety and privacy interests that they previously assigned great weight in this case and in the Southern District of Florida,” they whine, while demanding to chew more clock with another round of briefing on the proposed redactions. “Accordingly, the Court should require the Office to make consistent redactions regarding identity-related information and to show cause why their proposed public disclosure of voluminous purportedly sensitive witness statements will not pose risks to potential witnesses and unfairly prejudice the adjudication of this case.”
It’s a lot. And considering Judge Chutkan’s irritation the last time they tried this, it seems unlikely to succeed.
US v. Trump [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.