The Mudslinging Begins in Jack Smith's Jan 6 Case Against Trump

Disputes over a sweeping protective order to hamstring Donald Trump already has both sides at odds with accusations of bad faith, secrecy, and threatening social media posts.

It didn’t take long for things to get nasty in Special Counsel Jack Smith’s case against Donald Trump for allegedly attempting to “overturn” the 2020 election.

The former president already faces a nearly insurmountable challenge in receiving a fair process, let alone a fair trial, in the nation’s capital. Following the announcement last week that a D.C. grand jury indicted Trump on four counts related to the events of January 6, Trump’s luck went from bad to worse when the case landed on the docket of Tanya Chutkan, an Obama-appointed judge with a record of imposing the toughest sentences against January 6 defendants. 

In fact, Trump would have been hard-pressed to find a more biased, conflicted judge than Chutkan, who authored a landmark opinion denying Trump’s claims of executive privilege and ordering him to produce months of records to the House Democrats’ January 6 committee, arguing Trump was not “king.”

“On January 6, 2021, hundreds of rioters converged on the U.S. Capitol,” Chutkan wrote in November 2021. “They scaled walls, demolished barricades, and smashed windows in a violent attempt to gain control of the building and stop the certification of the 2020 presidential election results. This unprecedented attempt to prevent the lawful transfer of power from one administration to the next caused property damage, injuries, and death, and for the first time since the election of 1860, the transfer of executive power was distinctly not peaceful.”

Chutkan presumably missed the 2017 inaugural riots in Washington and when the president who put her on the bench conspired with the federal government’s most powerful officials and agencies to concoct the Trump-Russia election collusion hoax intended to derail Trump’s transition to president and ultimately oust him from office.

Chutkan, however, has a keen eye when it comes to keeping tabs on Smith’s fast-moving case against Trump. Smith’s signature had barely dried on the 45-page indictment before his lawyers started to pick a fight over a proposed protective order guiding how Trump could access and share evidence.

Jack Smith wanted Trump to agree that he would “not disclose…materials provided by the United States…other than [to] persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the Court may authorize disclosure.”

Trump’s counsel did not agree. But as both sides were haggling over the details, assistant U.S. Attorney Molly Gaston filed a motion late Friday night asking Chutkan to immediately approve the government’s protective order “without awaiting a responsive brief” from the defense.

Gaston claimed her ambush motion was in good faith. (Smith did the same in the classified documents case and was scolded by Judge Aileen Cannon for failing to properly confer with defense before filing a proposed protective order. She denied DOJs motion as a result.) Issuing the protective order in quick fashion, Gaston argued, would “expedite the flow of discovery in this case [and] give the defendant prompt access to a large portion of the discovery he ultimately will receive.”

But Gaston’s filing was little more than a political stunt as well as a lowkey attempt at imposing a gag order on Trump and preventing the American people from seeing Smith’s evidence against the former president. “All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public,” Gaston wrote. “Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him.”

Gaston then referenced a brief message Trump posted on Truth Social last Friday afternoon. “[In] recent days, regarding this case, the defendant has issued multiple posts—either specifically or by implication—including the following, which the defendant posted just hours ago:”

That’s quite a stretch on Gaston’s part. And even if Trump was in fact referring to those prosecuting him—he later insisted he was not—so what? He is supposed to remain close-lipped as a presidential candidate facing unprecedented prosecution at the hands of his successor and 2024 rival? Who made Jack Smith king?

Neither the timing nor the political nature of the government’s motion bothered Judge Chutkan. The very next morning, she ordered Team Trump to respond to the proposed protective order by 5:00 p.m. on Monday night, giving his overburdened lawyers one business day to prepare a response. Trump’s counsel immediately asked for a three-day extension, explaining to Chutkan that negotiations were underway when Gaston abruptly filed her proposed protective order and noting the court’s rules allowing opposing counsel 14 days to file a response.

“[An] additional three days to brief this important issue is reasonable, consistent with the Local Rules, and serves the interests of justice. No party would be prejudiced by the requested relief, as this case is at its very early stages and no matters are currently pending that require the immediate resolution of the Motion,” John Lauro and Todd Blanche, Trump’s attorneys, explained. Emails between the parties were attached to the defense motion confirming disagreement on the proposal but underscoring at least some degree of cooperation.

And that’s when the threats began. In a follow-up motion, Gaston warned Smith’s office would not produce discovery—the government’s collection of evidence in a case—until Trump’s team agreed to the protective order: “The Government stands ready to press send on a discovery production. The defendant is standing in the way. The Court should deny the motion.”

Chutkan, to the surprise of no one, obeyed. She denied the request for a three-day extension and re-established the deadline of 5:00 p.m. on Monday.

During a Sunday interview, John Lauro told CNNs Dana Bash why his client would not agree to the proposed protective order. “We will not agree to keeping information that’s not sensitive from the press. The press and the American people in a campaign season have a right to know what the evidence is in this case provided that this evidence is not protected otherwise.” 

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But Bash, along with her media cohorts and the Democratic judge, are unconcerned with the high level of secrecy sought by Smith’s team in two unprecedented cases against a former president. Not only will Trump not get a fair shake in D.C., his trial in the court of public opinion won’t fare any better at this rate.