The government in the Trump election-conspiracy case in federal court in D.C. has asked Judge Tanya Sue Chutkan to issue a protective order, directed mainly at barring Donald Trump or his team from publicly discussing materials turned over by the government that may be evidence in the case or relevant to the testimony of witnesses. This sort of order is routine in criminal and civil cases, but this is nothing like a routine case: The defendant is a candidate for president, being prosecuted by a government headed by his potential general-election opponent, and one of the key witnesses in the case (Mike Pence) is also running against Trump in the primary. Moreover, even when an order is routine, its scope is important, and the Trump defense offers to agree to an order barring disclosure of certain sensitive documents.

That raises the core dispute: Special counsel Jack Smith notes Trump’s long-standing habit (ongoing in this case) of “public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him.” This, Smith argues, when combined with his lawyer’s making the rounds of the Sunday shows, demonstrates Trump’s “plan to litigate this case in the media” and “could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case.” As Smith writes in his reply brief:

The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings—no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence—and claim that it supports some position the defendant later may make in pre-trial motions or at trial. Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court. Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper. (Citation omitted).

Trump’s lawyers respond by noting that Joe Biden himself has been promoting a Dark Brandon meme on social media that was widely interpreted as referencing Trump’s indictment and that there has been extensive use by Democrats of the indictment to make political arguments against Trump.

Smith’s request, as well-grounded as it is in customary criminal procedure as well as in Trump’s habitual inability to keep his mouth shut or abide by rules, has five basic problems.

First, there’s no avoiding the fact that this case is being litigated at the heart of a national campaign. As much as this is a mess of Donald Trump’s own making, the indictment and the events it covers are central to the voters’ decision about whom to nominate and whom to elect. Fairness to them, as much as to Trump, counsels against anything that will limit public debate on this case. It’s not even necessarily in the interests of Trump’s opponents, at least in the primary, to give Trump a shield that allows him to duck discussion of it on the debate stage.

Second, there’s the Pence problem. It’s unfair to Trump to let Pence talk about the subject of this indictment, and of Pence’s potential testimony, when Trump can’t respond. It would be even more unfair to Pence to gag him, given that his strength in resisting Trump on January 6 lies at the heart of his campaign for president. And Pence’s conduct on that occasion vividly demonstrates that he cannot be intimidated.

Third, there’s the jury issue. Normally, one would plan to find a fair jury among people unfamiliar with the parties or at least with the events at issue in the trial. But the whole subject of this case has been front-page national news, and even more so D.C. news, for more than two and a half years. That means one of two things: Either the jury will be selected among people who pay no attention to the news anyway, or it will have to rely upon finding people who’ve already heard a lot about this case but promise credibly to be fair anyway. In either event, trying to cap publicity now is closing the barn door long after an entire herd of wild horses has escaped it.

Fourth, this is not actually the first public trial of this case. There was an impeachment trial before the Senate. There was a congressional committee composed entirely of Trump’s political enemies, which held nationally televised hearings. Smith may complain that there’s a risk of misleading and partial leaks of evidence, but there have already been vast quantities of such leaks in this very case already.

Fifth, in any case, and especially in one where the national political press has both an intense interest and a clear rooting interest for one side, there is bound to be a high risk of leaks from both sides of the case. Yet, because the people on the government side are so numerous and because it can be difficult at times to be certain whether a selective leak benefits the interests of one side or the other, the government can claim deniability when the press writes stories supporting the prosecution. What is a defendant who is also a political candidate to do?

Under the circumstances, Judge Chutkan should issue the narrowest possible order. It’s simply not practical or fair to anyone to try to hold back the inevitable deluge of public debate over this case.