Left: President Donald Trump arrives to speak at a rally in Washington, on Jan. 6, 2021 (AP Photo/Jacquelyn Martin). Right: In this Jan. 6, 2021, file photo violent insurrectionists loyal to President Donald Trump supporters try to break through a police barrier at the Capitol in Washington (AP Photo/John Minchillo).
The federal judge overseeing the consolidated Jan. 6 civil litigation brought against Donald Trump by a number of lawmakers and police issued a protective order Wednesday setting rules for discovery to ensure confidential information stays sealed and Trump’s immunity defense used in other cases he faces — like his prosecution by special counsel Jack Smith for allegedly subverting the 2020 election — is not compromised.
The 21-page order signed by U.S. District Judge Amit Mehta are terms parties have mutually agreed to as the years-old cases plod ahead. Late last month, as Law&Crime previously reported, Mehta issued a September deadline for all to complete discovery and get the civil proceedings underway after the former president had staved it off for more than a year.
This consolidated series of lawsuits stems from a complaint made by Rep. Bennie Thompson, D-Miss., the former chairman of the now-defunct House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol, as well as lead plaintiff Rep. Barbara Lee, D-Calif., and others like Reps. Eric Swalwell, D-Calif. and police officers including Conrad Smith, Bobby Tabron, Briana Kirkland and others.
The parties mutually contend that Trump violated the Ku Klux Klan Act of 1871, a law barring mob violence directed at federal officials, and they have made substantial allegations of physical and emotional injury because of his conduct leading up to and on Jan. 6, 2021.
None of the protective order’s terms on discovery compliance for either side are intended to represent a waiver of Trump’s Fifth Amendment right, Mehta emphasized Wednesday.
But they are meant to safeguard sensitive records. The attention to detail the judge pays is notable; though terms of discovery are a typical process in civil litigation, the demands of the former president’s currently nuanced legal situation, coupled with his history of making controversial or even harassing statements against those who sue him, looms over the order.
Mehta specifies that private or medical health records that may arise must stay protected. Given that the police who have defended the Capitol suffered serious long-term injuries, this is an arena that warranted the judge’s attention.
Any “confidential personal correspondence, notes, or communications” or “confidential police protocols, sources or methods of the U.S. Capitol Police, the Washington, D.C. Metropolitan Police Department or other law enforcement agency” cannot be disclosed without prior authorization.
“Attorneys’ Eyes Only Material” must be designated and “specifically marked” both “reasonably and in good faith,” the judge wrote, but he also gave Trump’s defense strategy plenty of room by allowing the parties to stipulate that unless the court changes its mind going forward, any materials, like Trump’s responses to interrogatories in connection to his immunity inquiry, must be treated as “attorneys’ eyes only” materials “whether or not specifically designated as such” unless they are already in the public domain.
In that vein, Mehta underlined that “for the avoidance of doubt,” information available in the public domain already will not constitute designated protected material — unless the U.S. Capitol Police or Office of the Architect of the Capitol says otherwise. Those materials include video surveillance from the Capitol as well as recordings of police dispatch communications, dashboard cameras, body cameras and more.
The judge set a deadline of 14 days from the May 15 order for Trump and the plaintiffs to make any amendments to discovery items they produced before he set down Wednesday’s ruling.
Per the order, Trump is allowed to disclose certain discovery materials he generates in this case for his criminal one in Washington, D.C., currently on hold as the U.S. Supreme Court prepares to issue a ruling on the question of his immunity.
If the high court releases that decision late into June, it is unlikely Trump will see the Smith prosecution unfold in earnest anytime before the 2024 election in November. This civil case, meanwhile, has seen its own share of setbacks as Trump tried and ultimately failed to convince the courts that he was totally immune from civil prosecution for Jan. 6. The D.C. Circuit ruled against his motion to dismiss civil claims based on immunity grounds in December and Trump, inundated by legal troubles in more than four venues, missed his window to raise it with the Supreme Court.
The parties have mutually agreed, per Mehta’s order, that any depositions in discovery will be designated protected for just 30 days. “Attorneys’ Eyes Only” materials will be sealed and he notes that the burden to unseal will rest squarely with the party requesting it within seven days.
Seeking to tamp down on the flurry of filings, Mehta notes that none of those replies will be allowed without his permission.
If Trump or the plaintiffs receives any requests, like subpoenas or discovery or arbitration requests tied to other civil or criminal proceedings, it is stipulated that Mehta must be notified as soon as possible.
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