Trump’s team should fight this protective order down to the last word.
This is why Jack Smith needs a protective order to prevent Trump from disclosing witness testimony when he receives discovery in the election interference case. It’s easy to imagine an unbalanced supporter seeing this post as a call to action and going after the witnesses. pic.twitter.com/5hgN9XmU2F
— Barb McQuade (@BarbMcQuade) August 5, 2023
We have lived with protective orders in the J6 cases mostly because there was little upside to fighting them other than to prove a point.
But the Gov’t has prosecuted Trump in the media for years. To bar him from commenting on the evidence against him is a violation of his First Amendment rights.
The rules against disclosure of discovery to the public are intended to protect the jury pool from being prejudiced by disclosure of information that may never become part of the trial record.
One of the most famous SCOTUS examples is when a confession by a criminal defendant — known to be false — was widely publicized in the local press. There was no way to protect the juror pool in the small community from knowing the details of the confession but it was never going to be part of the evidence at trial.
That is an example of why discovery is sometimes subject to a protective order.
But there is no good faith argument to be made here that the Gov’t has been sensitive to avoiding the creation of bias in the juror pool by its pre-indictment conduct.
There is no rule or principle of law that protects the identity of witnesses or their testimony before the Grand Jury. I say this over and over — the secrecy rules before the GJ apply to the Court staff and Govt actors — no one else.
Here is the relevant text of Federal Rule of Criminal Procedure 6(e):
(A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).
(B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury:
(i) a grand juror;
(ii) an interpreter;
(iii) a court reporter;
(iv) an operator of a recording device;
(v) a person who transcribes recorded testimony;
(vi) an attorney for the government; or
(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).
Not mentioned anywhere in that list are the witnesses themselves, attorneys for the witnesses, the defendant, or the defense team.
You cannot make use of the GJ for the purpose of harassing or intimidating a witness — that is obstruction.
But the Gov’t was not obligated to produce GJ witness transcripts at this point in the case — SCO Smith made the decision to do that as part of a gambit to force an early trial.
Having that information that he controlled become public is a function of his decision-making.