A federal judge pressed special counsel Jack Smith on Monday to explain why he used a D.C. grand jury to investigate the Florida-based case against former President Donald Trump for mishandling classified documents, while Mr. Trump’s legal team urged another federal judge in Washington to limit the prosecutor’s bid to muzzle him.
U.S. District Judge Aileen Cannon is based in South Florida, where Mr. Smith filed an indictment against the former president and where the trial is expected. But the charges were brought based on the recommendation of a grand jury in Washington, causing Judge Cannon to question whether the move was constitutional.
In a brief order, Judge Cannon ordered prosecutors to “address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.”
Judge Cannon’s order was in response to the special counsel’s request for a hearing to examine a potential conflict of interest for an attorney for Walter Nauta, a Trump aide who has also been charged in the case.
Mr. Smith’s team must reply by Aug. 22.
Mr. Trump is seeking a change of venue from Washington in the broader criminal case brought by Mr. Smith on charges that the former president tried to overturn the results of the 2020 presidential election. Mr. Trump says he will not receive a fair trial in the Democrat-dominated District.
In that case, lawyers for Mr. Trump asked a federal judge Monday to limit Mr. Smith’s bid to prevent the former president from publicly discussing evidence before a trial. The Trump team said Mr. Smith’s request to muzzle the former president is “overbroad” and would violate Mr. Trump’s First Amendment rights.
The legal brief said the Justice Department’s prosecution is taking place amid the campaign for the presidency in 2024, in which Mr. Trump is the GOP frontrunner.
The brief also noted that President Biden himself has made veiled references to the prosecution of his likeliest rival.
“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights,” Mr. Trump’s lawyers wrote. “Worse, it does so against its administration’s primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations.”
Instead, his lawyers said, the court should issue an order that shields “only genuinely sensitive materials from public view.”
The decision is up to U.S. District Judge Tanya S. Chutkan.
Protective orders are common in criminal cases, but prosecutors said it’s needed especially in this case because Mr. Trump has posted on social media about “witnesses, judges, attorneys, and others associated with legal matters pending against him.”
Prosecutors cited a particular post on Truth Social on Friday in which he wrote, “If you go after me, I’m coming after you!”
Mr. Trump said Monday that Judge Chutkan should recuse herself.
He said Mr. Smith sought “the Judge of his ‘dreams’ (WHO MUST BE RECUSED!), in an attempt to take away my FIRST AMENDMENT RIGHTS.”
The indictment accuses Mr. Trump and his allies of lying about the 2020 election results after his loss and pressuring Vice President Mike Pence and state election officials to take action to help him remain in office.
Those efforts came to a head on Jan. 6, 2021, when Trump supporters breached police barricades around the U.S. Capitol in an attempt to stop Congress’ certification of the Electoral College vote.
The Trump team said that Mr. Biden has “capitalized on the indictment, posting a thinly veiled reference to his administration’s prosecution of President Trump just hours before [Trump’s] arraignment” on Aug. 3.
The brief cited a social media post by Mr. Biden that day, in which he is pictured holding a cup of coffee and saying, “A cup of Joe never tasted better.”
“Indeed, President Biden promised from the outset that his administration would ensure President Trump ‘does not become the next president again,’ adding an unprecedented political dimension to this prosecution,” wrote Trump lawyers Todd Blanche and John Lauro.
“Moreover, the Biden Justice Department waited over two-and-a-half years to seek this indictment, during an election cycle in which President Trump is the leading candidate,” they said.
Against this backdrop, they wrote, “The government requests the Court assume the role of censor and impose content-based regulations on President Trump’s political speech that would forbid him from publicly discussing or disclosing all non-public documents produced by the government, including both purportedly sensitive materials and non-sensitive, potentially exculpatory documents.”
They said Mr. Trump “does not contest the government’s claimed interest in restricting some of the documents it must produce” in the case.
“However, the need to protect that information does not require a blanket gag order over all documents produced by the government,” they wrote. “Rather, the Court can, and should, limit its protective order to genuinely sensitive materials — a less restrictive alternative that would satisfy any government interest in confidentiality while preserving the First Amendment rights of President Trump and the public.”
In the classified documents case, Mr. Smith has filed criminal charges in Florida against Mr. Trump, Mr. Nauta and Carlos De Oliveira, an employee at Mar-a-Lago.
Judge Cannon also denied Mr. Smith’s request to keep two filings sealed, saying prosecutors “plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.”
Mr. Trump is accused of 40 counts, including willful retention of national defense information, conspiracy to object to justice, and false statements. He has pleaded not guilty to the charges.
Mr. Nauta is charged with six counts, including conspiracy to obstruct justice, while Mr. De Oliveira is accused of hiding security footage of workers moving the classified documents.
In other legal developments Monday, Mr. Smith’s investigators interviewed former New York City Police Commissioner Bernie Kerik, an ally of former Mayor Rudolph W. Giuliani, about what the Giuliani team did between the 2020 presidential election and Jan. 6., 2021 riot, CNN reported.
In Georgia, Mr. Trump’s legal team appealed to the state Supreme Court a lower court’s ruling that rejected his effort to quash a Fulton County grand jury report on his efforts to change the outcome of the election there. Mr. Trump, who is seeking to disqualify Democratic District Attorney Fani Willis, is expected to be indicted in the Georgia case within days.
Republican former Lt. Gov. Geoff Duncan confirmed reports that he has been subpoenaed to testify in the Georgia case.
“I will continue to share the facts as I know them around this investigation in hopes of figuring out what really happened,” he posted on X, the social media site formerly called Twitter.
Also Monday, a federal judge in New York tossed out Mr. Trump’s countersuit against the writer who won a sex abuse lawsuit against him, ruling that Mr. Trump can’t claim she defamed him by continuing to say she was not only sexually abused but raped.
The ruling shuts down, at least for now, Mr. Trump’s effort to turn the legal tables on magazine advice columnist E. Jean Carroll, who won a $5 million judgment against him in May and is pursuing her defamation suit against him. Trump lawyer Alina Habba promised an appeal of “the flawed decision” to dismiss his counterclaim.
Ms. Carroll’s lawyer, Robbie Kaplan, said she was pleased with the ruling and looking ahead to a trial scheduled in January in her defamation suit, which concerns a series of remarks that Trump has made in denying her sexual assault allegation.
• This article is based in part on wire-service reports.
• Dave Boyer can be reached at dboyer@washingtontimes.com.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.