An Alternative to a Trump Protective Order

WASHINGTON - Aug. 7, 2023 - PRLog -- Attorneys prosecuting Donald Trump regarding his role in challenging the 2020 presidential election have asked federal Judge Tanya S. Chutkan to issue a protective order prohibiting the former president from publicly disclosing certain sensitive information his defense team will be obtaining from the federal government.

Such protective orders are routinely granted in criminal cases to protect potential witnesses and for other reasons, notes public interest law professor John Banzhaf.

But, the law professor notes, Trump is no ordinary defendant, and he has a history of disclosing information and lashing out at - some say trying to intimidate - potential witnesses.

Thus it is possible - although not likely - that he might successfully resist and/or even openly defy any protective order; e.g., the government's proposal, Trump attorney's counter proposal, or something in between.

Therefore Judge Chutkan might wish to consider - and federal prosecutors may wish to suggest as a possible fallback position - a simple alternative: not provide Trump and his lawyers with many of the "sensitive materials" until they are about to be introduced in the trial where they will therefore be made public.

To make this procedure seem less onerous and restrictive, the judge might simply order that certain "sensitive materials" not constitutionally required to be turned over to the defense by Brady and Giglio may be withheld unless and until Trump and his attorneys pledge with appropriate assurances not to disclose it.

This way it will be Trump's own commitment - possibly backed up by any bond, threat of arrest, or other protective mechanism the judge may approve - not to disclose the information, and not a "gag order" from the court, which will protect sensitive information until it is about to be introduced at trial, suggests Professor Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law Emeritus
George Washington University Law School
"The Man Behind the Ban on Cigarette Commercials"
FAMRI Dr. William Cahan Distinguished Professor
Fellow, World Technology Network
Founder, Action on Smoking and Health (ASH)
Inventor of the "Banzhaf Index
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf