I Didn’t Have “Media Stories about Protective Orders” on This Year’s Bingo Card

By Sara Kropf

Protective orders in criminal cases are . . . . typical. Boring, even. (Are you really going to read a blog post about protective orders?) But even the most mundane procedural matters seem to take on outsized importance when they arise in the criminal cases against Donald Trump.

So, yes, I guess you are going to read a blog post about protect orders.

Protective Order Basics

A protective order is a court order that limits how a party may share information obtained during the court case. They are extremely common in both civil and criminal matters.

Rule 6(e) of the Federal Rules of Criminal Procedure limits the persons to whom the government may share information it obtains through the grand jury process. So, there are certain powerful limitations in place to prevent the government from disclosing this material.

But Rule 6(e) does not limit the defendant’s sharing of information. A protective order creates that limit. Rule 32(d)(1) authorizes the court to enter a protective order:

(d) Regulating Discovery.

(1) Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party’s statement under seal.

Procedurally, the government will provide a draft protective order to the defense. Each U.S. Attorney’s Office has a fairly standard version, although it can be modified if circumstances warrant it. The defense will review it. There’s usually not much—if any—negotiation over the terms. Once both sides are in agreement over the terms, the government will file a “consent motion” with the court to enter the protective order on the docket. (A consent motion is one that both sides agree to.) Once the court signs the protective order and files it on the docket, the government will disclose the discovery material to the defense. This happens in maybe a day or two.

It’s standard, it’s quick, and it’s generally noncontroversial.

The provisions of a basic protective order in a criminal case will include:

1. The defense agrees that any material provided by the defense is covered by the agreement.
2. The defendant agrees that only certain authorized person may see the material—usually the defendant, defense counsel, people working with the defense (like experts and investigators) and potential witnesses who are contacted by the defense.
3. Before defense counsel may show any material to anyone, that person must be provided with a copy of the protective order and sign an acknowledgement that he or she will abide by it.
4. The government will not provide the material to the defense until the defendant (and counsel) sign the order.

As for #3, the defense does not need to provide the government or the court with a copy of the acknowledgement. Instead, counsel simply maintains a copy of it in her files and if there’s ever a question about whether someone knew they were bound by the agreement, could produce a copy of it. (In 20+ years—knock on wood—this has never happened to me. Again, these are standard orders, and everyone knows the rules.)

Violating a protective order is like violating any other court order. It exposes the violator to sanctions such as a finding of contempt.

The Proposed Trump Protective Order

Of course, in the case against Mr. Trump, nothing is standard or quick or noncontroversial.

The government has proposed a protective order in the case against Mr. Trump in the District of Columbia. According to the government’s motion filed last week, the defense marked up the proposed protective order but the edited protective order “did not, in the Government’s estimation, protect numerous categories of sensitive materials, including grand jury materials and sealed search warrant affidavits.” So, the government filed a motion with the court, attached its proposed order, and asked the court to enter it.

Notably, the government says that this protective order will prevent the “improper dissemination or use of discovery materials, including to the public. 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.” The government brief then screenshots Mr. Trump’s social media message from the same day that said, “IF YOU GO AFTER ME, I’M COMING AFTER YOU.” (All caps in original, of course.)

The defense will respond to the motion on Monday and will presumably attach its version of the proposed order for the court to consider.

The court can then review both versions and hold a hearing to discuss it, or simply enter a signed protective order on the docket. The final order could be the government’s proposed version, or the defense version, or something else altogether.

The version proposed by the government is unusual in that it has additional limitations over material the government identifies as “Sensitive Material.” That material is:

1. Materials containing personally identifying information as identified in Federal Rule of Criminal Procedure 49.1 (this includes social security number, date of birth, home address etc.);
2. Rule 6 materials, including grand jury subpoena returns, witness testimony, and related exhibits presented to the grand jury;
3. Materials obtained through sealed search warrants and 2703(d) orders;
4. Sealed orders obtained by the Government’s filter team related to this case;
5. Recordings, transcripts, interview reports, and related exhibits of witness interviews; and
6.  Materials obtained from other governmental entities.

There are a few ways that the government’s proposed version goes beyond a typical protective order.

First, no one other than the defendant, defense counsel, people working directly with the defense, and the person about whom the material relates may see Sensitive Material. This means that it cannot be released by Mr. Trump as part of his frequent public statements.

Second, and this is VERY unusual for white collar cases, defense counsel can show Sensitive Material to Mr. Trump but cannot give him a copy of it. Mr. Trump cannot write down any personal identifying information from the material.

A helpful reader pointed out to me that limiting a defendant’s access to some discovery is actually quite common in some violent crime cases, where witness retribution is a real concern if the defendant knew the names of witnesses cooperating against him.

What Will the Court Do?

In most matters like this, courts generally defer to what the government wants. I think it will do that here, but with an important limitation.

I don’t think the court will stop the defense from providing a copy of the Sensitive Material to Mr. Trump. That seems like a bridge too far at this point in the case (but see my note below). This is a complicated matter, and it’s a tough sell to say that a defendant cannot have a copy of certain documents to print, review, mark-up, and so forth. That could be viewed as limiting Mr. Trump’s ability to participate fully in the defense of the case.

I do think the court will preclude Mr. Trump from releasing any of the Sensitive Material publicly and will require all future court filings to include this material under seal.

NOTE: If Mr. Trump discloses any of the Sensitive Material in the future in violation of the protection order, the judge may in fact limit his access. Given his proclivity to push the envelope, this is an extremely likely outcome down the road.