Not just Trump: Law professors warn that Trump lawyers must also be careful about what they say

A 90-minute court hearing on August 11, 2023, which would have been routine in almost any other case, was indeed historic. It was the first time lawyers have prosecuted and defended former President Donald Trump over charges that he tried to overturn the 2020 election appeared before the federal judge in the case.

The hearing before Judge Tanya Chutkan concerned public statements about what legally constitutes a “discovery” — defined by the American Bar Association as “the formal process of exchanging information between the parties about the witnesses and evidence they will present in court“Prosecutors at the Justice Department wanted Chutkan to issue a so-called “protection order” barring Trump and his attorneys from posting or publicly commenting on these materials because public comments could serve to intimidate witnesses or contaminate the potential jury pool. Trump’s attorneys said any restriction on the right to speak about the documents violated Trump’s freedom of expression.

Chutkan told Trump’s lawyers She would set limits on what he could say. “I caution you and your client to exercise extra caution in your public statements in this case,” she said. “I will take all necessary steps to protect the integrity of this proceeding.” Conversation’s senior politics and society editor, Naomi Schalit, interviewed attorneys Thomas A. Durkin and Joseph Ferguson, law professors at Loyola University in Chicago the hearing.

Do people lose their First Amendment rights if they are criminally charged?

Durkin: You don’t actually lose your rights, but the investigative process requires certain limitations on what you can do with essentially government documents and information. So I’m not sure if that’s a First Amendment limitation. From what I’ve heard, the judge said to Trump and his attorney, certain things will be limited and some of your rights will be limited. I don’t think that’s a terribly difficult imposition.

Ferguson: A defendant experiences this as a compulsion. But Tom and me As a veteran lawyer, you know that putting yourself in a situation like this doesn’t stop you from doing what you would otherwise have the right to do. You have imposed the compulsion on yourself.

This does not constitute a limitation on Trump’s permanent rights to free speech. They are not absolute and in this case must act within the bounds of the competing interests of justice. According to initial reports, the judge has made it clear that justice is more important than other considerations.

What did the judge say?

Ferguson: The judge has signaled that Trump’s rights as a defendant are subject to the rules of the court. This forms the framework for all further decisions. The judge and lawyers, as court officials, have a responsibility to ensure the integrity of the proceedings against the background of the integrity of the criminal justice system.

Trump and his team are trying to bring politics into the case denigrate, delegitimize and politicize prosecutors and the playing field itself and all players. This increases the need for the judge to set a clear line. The normal concern of a judge in these cases is possible interference with the jury, intimidation of witnesses, and other forms of interference in the judicial process.

We’re not just talking about the defendant. His lawyers have been all over TV. What the judge says and rules about the limitations on attorneys’ testimony – and how she enforces them – may be as important here as anything else. Trump’s lawyers are his proxies not only for the case itself, but also for his political purposes of hearing the case publicly.

Durkin: I said recently that it seems to me that Trump is looking for a mouthpiece and not a lawyer. And I think, as Joe says, there’s the fear of the client dictating to the lawyers what to do. Many people have publicly commented on how unprofessional the citations of many of his attorneys appear to be and that at times they seem to make them approvals on his behalf. You don’t seem very experienced in dealing with the press.

Although I would probably part with Joe a little, because of course it is the wish of the defendant’s lawyers Spoil the jury pool. That’s the name of the game. But there are ways to do it professionally and there are ways not to.

The government is pushing for a speedy process. How do you feel?

Ferguson: This is about something bigger. The established practice of the Department of Justice is that a matter does not go to court 60 days before an election. The prosecutor’s office certainly cares about that. But one thing these rules really don’t take into account is today’s world where we find ourselves in a constant state of voting and campaigning, which is certainly the case with Trump.

Durkin: It is sort of the opposite of the typical case. And the administration is trying to shift all of this discovery material to the defense immediately, lest Trump’s attorneys claim, “We need more time.”

Friday’s court hearing focused on the terms of a protective order that would determine what materials and information could be released, didn’t it?

Ferguson: These orders are routine in any case if they contain highly sensitive information or are themselves the subject of great public controversy.

Members of the Iowa Republican Party show their support for various 2024 candidates, including former President Donald Trump, at the Iowa State Fair on August 9, 2023. Chip Somodevilla/Getty Images

So the hearing was about what Trump’s attorneys might say, not just Trump?

Durkin: I am working on a case where the judge’s protection order dictates that anything that is intended to be archived and is sensitive material must be archived under seal. This severely limits the ability of attorneys to publicly submit motions to speak – motions that contain a lot of detail. Motions to speak, like Smith’s indictment, are one of the ways a good defense attorney can try to influence the jury because documents can be incorporated into briefs with impunity.

So you’re saying that lawyers can use these motions to plant things that wouldn’t normally go public.

Durkin: Yes.

What did the prosecution ask for in this hearing?

Durkin: As far as I know, the prosecution wanted everything to be classified as sensitive, which is very unusual.

When materials are marked as sensitive do you have to keep your lips closed?

Durkin: Yes. It’s about who you can show the materials to, whether you can leave copies of them, whether you have to lock them up or not. And this is not an uncommon argument that people have.

So the government just wanted to get this over with and call everything sensitive and not argue about every document it presented to the defense.

Ferguson: There are two approaches here. One is the government’s approach of simply placing the whole thing under the protective order, giving the defense immediate access and allowing the judge and parties to work out issues later in the case. While the defense wants the matter resolved now, it would take time and cause delays.

At one point, Trump’s attorneys said keeping all discovery documents secret would give Joe Biden an edge.

Ferguson: I see this as an incentive for the judge to admit that what she is doing will have policy implications. She didn’t bite — she kept a clear line here, saying, “Not my role, not my concern.”

Thomas A DurkinDistinguished Practitioner in Residence, Loyola University Chicago And Joseph FergusonCo-Director, National Security and Civil Rights Program, Loyola University Chicago

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