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Trump Tells Supporters He’ll Defy Any Protective Order Issued in Jan. 6 Case

If he follows through on his promise, Trump could be found in contempt of court.

Former President Donald Trump speaks as the keynote speaker at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party on August 5, 2023, in Columbia, South Carolina.

During a campaign event in New Hampshire on Tuesday, former President Donald Trump promised his supporters that he would not abide by any protective order imposed by a federal judge in the case involving his attempts to overturn the outcome of the 2020 presidential election.

A protective order would bar Trump and his lawyers from disclosing certain kinds of evidence publicly, specifically evidence that could be used to intimidate witnesses or that could otherwise negatively affect the fairness of the case. Although protective orders are not uncommon, Trump has errantly suggested that such an order would violate his First Amendment right to free speech.

In comments on Tuesday, Trump insinuated that President Joe Biden was directing special counsel Jack Smith to pursue the protective order, echoing unfounded claims he’s made in the past that the case against him is politically motivated. Trump has not provided any evidence to back up these claims.

“Crooked Joe now wants the thug prosecutor, this deranged guy, to file a court order taking away my First Amendment rights so that I can’t speak…I will talk about it. I will,” Trump told the audience gathered before him.

The request from Smith and the Department of Justice (DOJ) to have a protective order placed on evidence in the case came as Trump made comments last week that appeared to be a threat against those considering cooperating with the investigation. On Friday, Trump wrote in a post on his Truth Social website, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

That post was included by prosecutors — alongside other arguments — as a reason why Trump should be barred from sharing evidence in a public setting, as his doing so could have a “harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” the DOJ said in its filing.

Judge Tanya Chutkan, who is overseeing the case, scheduled arguments over the request for a protective order for Friday. In her announcement of the date for those arguments, Chutkan indicated that she recognized Trump would likely seek to “publicly disseminate, and publicize in the media, various materials obtained from the Government in discovery.”

Chutkan also dismissed claims by Trump’s legal team that a protective order would stifle his speech rights.

“There is no right to publicly release discovery material, because the discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion,” the judge said.

In an interview with NPR, Mark MacDougall, an adjunct professor at Georgetown Law School, agreed that Trump’s speech rights wouldn’t be violated with a protective order.

“It’s not a gag order and would not restrict him from talking about almost anything,” MacDougall explained. “He just could not use the evidence produced by the government to support those statements.”

Still, once Chutkan makes her decision on the protective order, it could lead to the first instance of Trump’s lawyers in the case appealing a decision from the judge, as they could argue, if the order is imposed, that it violates Trump’s constitutional rights. That appeal would go to the District of Columbia Circuit Court of Appeals; if Trump’s legal team still isn’t satisfied with the outcome, it could be further appealed to the U.S. Supreme Court.

Such appeals would likely be an attempt to delay on the part of Trump and his lawyers. By questioning each technical order handed out, Trump makes it more likely that his trial will take place after the 2024 election.

Trump is running for the GOP nomination for the third time in as many election cycles; if he manages to win next fall, it could mean he would no longer have to go to trial. As president, Trump could appoint a new attorney general, who could decide to drop all federal charges against him — in both this case and the Mar-a-Lago government documents case.