Trump lawyers ask for extension in responding to DOJ's protective order

Updated August 5, 2023 at 5:25 PM ET

Lawyers for former President Donald Trump asked a federal judge on Saturday afternoon for an extension in responding to the Justice Department's motion for a protective order.

The order would limit what discovery evidence Trump could share publicly about the ongoing criminal case related to the 2020 presidential election.

Federal prosecutors filed the motion on Friday night — just hours after Trump suggested on Truth Social that he would take revenge on anyone who goes after him.

On Saturday, U.S. District Court Judge Tanya Chutkan gave Trump's legal team until 5 p.m. Monday to respond to the prosecutor's motion. Trump's attorneys responded with a request for a three-day extension.

Negotiating the protective order is a critical step for the government before they can begin the discovery process and determine a trial date and timeline for the defense case.

In his third criminal case of the year, the front-runner for the 2024 Republican presidential nomination pleaded not guilty on four felony charges that he attempted to overturn the results of the 2020 election. The magistrate judge has set the first hearing for Aug. 28.

What is a protective order?

Before a trial, prosecutors are obligated to turn over evidence with defense attorneys. This is known as discovery.

A protective order places limits on what the defendant and his or her lawyer can do with the discovery material once its in their possession. The purpose is to ensure that the information is only used to help the defense prepare for trial.

Protective orders are commonly used criminal cases, in order to prevent the disclosure of sensitive information about investigative tactics, cooperating witnesses or national security, according to David Sklansky, a professor at Stanford Law School.

"It's a case-by-case decision by the judge about whether there's reason to fear that disseminating information could be harmful to the public, to national security, to potential witnesses," Sklansky said.

After a protective order is issued, the defense has the opportunity to ask the judge to remove or modify it at anytime.

What does the Justice Department want to prevent Trump from doing?

In Trump's election case, prosecutors are seeking to only allow Trump and his attorneys disclose discovery materials, like witness interviews, to a select group of people — those hired to help with their defense, potential witnesses, witnesses' lawyers and others approved by the court.

That means that Trump will likely still have free rein to talk about the case and the prosecutors, according to Sklansky, a former prosecutor.

"This is not an effort to silence Trump. It is not an effort to stop Trump from talking about the case," he said. "It's an effort to protect the use of information that's provided in discovery."

How is a protective order different from a gag order?

Essentially, protective and gag orders address different concerns. Protective orders relate to concerns of how the defense may handle sensitive or confidential information shared with them as part of discovery.

Gag orders place restrictions on what the defendant and their attorney can and cannot discuss outside the courtroom. They are typically issued to control the flow of information and prevent jury bias in order to ensure a fair trial.

What happens if a defendant violates a protective order?

It depends on the judge.

A person who violates a protective order could be held in contempt of court. But more likely, that person will receive a warning for the first offense, according to Rick Rossein, a professor at the CUNY School of Law.

"It would be unusual for a judge to jail somebody for a first violation, but they certainly have the right to do that," he said.

Rossein suspects that the judge in Trump's election case will play an even more active role in the motion for a protective order if the prosecution and defense are not able to agree on the terms.

"The judge is going to have to actually be very involved in crafting the actual language of the protective order," he said. "This will become the judge's protective order."

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