Former President Donald Trump’s legal team argued Special Counsel Jack Smith’s proposed protective order should be narrowed because it would violate Trump’s First Amendment right to free speech in a 29-page filing on Monday.
Trump was arraigned last week on a four-count indictment related to his alleged efforts to overturn the 2020 election.
On Friday, Smith asked U.S. District Court Judge Tanya Chutkan to issue a broad protective order that would prevent Trump from releasing any discovery in his latest criminal case to the public. Smith’s request for a protective order came after Trump posted to Truth Social, “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” which the government said was a mention of the case “by implication.”
Special Counsel Jack Smith delivers remarks on a recently unsealed indictment against former President Donald Trump at the Justice Department on June 9, 2023, in Washington, DC. (Photo by Alex Wong/Getty Images)
On Monday, Trump’s attorneys argued the “overbroad” order should be narrowed “to shield only genuinely sensitive materials from public view.” They argued “a blanket gag order over all documents produced by the government” is not necessary because they recognized that certain documents, like grand jury materials, should remain restricted from the public.
Smith hypothesized that Trump would publicize grand jury transcripts, resulting in a “harmful chilling effect on witnesses” in his motion for a protective order.
Trump’s legal team emphasized the First Amendment violations that would occur if the government’s proposed order went into effect.
“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights,” they 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.”
Trump’s attorneys also referenced President Joe Biden’s embrace of the “Dark Brandon” meme in a video Biden released on the same day as Trump’s arraignment.
“President Biden has likewise capitalized on the indictment, posting a thinly veiled reference to his administration’s prosecution of President Trump just hours before arraignment,” Trump’s attorneys argued before referencing Biden’s post. “Indeed, President Biden promised from the outset that his administration would ensure President Trump ‘does not become the next President again,’ adding an unprecedented political dimension to this prosecution.”
A cup of Joe never tasted better.
— Joe Biden (@JoeBiden) August 3, 2023
Grab yours: https://t.co/4fbxCBQNPZ pic.twitter.com/s2qboyE7C1
Trump’s attorney argued:
Against this backdrop, the government requests the Court assume the role of censor and impose content-based regulations on President Trump’s political speech that would forbid him from publicly discussing or disclosing all non-public documents produced by the government, including both purportedly sensitive materials, Proposed Order at ¶ 8, and non-sensitive, potentially exculpatory documents, Proposed Order at ¶ 1 (restricting “[a]ll materials provided by the United States in preparation for, or in connection with, any stage of this case . . .”).
Trump’s legal team suggested the court “limit its protective order to genuinely sensitive materials—a less restrictive alternative that would satisfy any government interest in confidentiality while preserving the First Amendment rights of President Trump and the public.”
Judge Chutkan, an Obama donor known to give some of the harshest sentences for January 6 defendants, will ultimately decide on Trump’s request to limit the scope of the protective order.
Jordan Dixon-Hamilton is a reporter for Breitbart News. Write to him at
