Trump's public comments could risk tainting jury pool, special counsel Jack Smith says

Washington — Special counsel Jack Smith warned Tuesday that former President Donald Trump's "daily" comments risk tainting the prospective pool of jurors in Washington, D.C., in the criminal case over his alleged efforts to stop the transfer of presidential power after the 2020 election.

Smith raised the concern about Trump's public comments, largely made on his social media website Truth Social, in a filing with the federal district court in Washington that was part of a back-and-forth with the former president's lawyers over the Justice Department's request to file a document that refers to sensitive materials under seal. 

The special counsel's team asked U.S. District Judge Tanya Chutkan, who is presiding over the case, to submit the unredacted motion under seal, and file a redacted motion on the public docket for the case. But Trump's defense team pushed back on the request, claiming in part that the court's rules allow them 14 days to respond to all motions.

"Thus, as a matter of course, the court should allow defendant sufficient time to respond to every motion filed in this matter," defense lawyers Todd Blanche, John Lauro and Gregory Singer told the court.

They asked the court to give Trump "reasonable time" to review the government's filings and proposed sealed exhibits.

But the special counsel pushed back on the request from Trump's lawyers and argued that their proposal is "inconsistent" with a protective order issued by Chutkan last month and the "efficient administration of justice." They argued the schedule put forth by the defense team for the court to decide whether filings that refer to sensitive materials should be listed on the docket for the case is "unworkable."

"Such a requirement would grind litigation in this case to a halt, which is particularly infeasible given the pressing matters before the Court — including the defendant's daily extrajudicial statements that threaten to prejudice the jury pool in this case, as described in the Government's motion," Smith and federal prosecutors Molly Gaston and Thomas Windom wrote.

Justice Department lawyers have raised concerns with Trump's social media comments before, specifically in an Aug. 4 filing that cited a Truth Social post in which the former president wrote "If you go after me, I'm coming after you!" Trump made the statement after he pleaded not guilty to four criminal charges in Smith's case stemming from the alleged attempts to overturn the results of the 2020 election.

The special counsel's team warned then that if Trump were to include in his posts details obtained during the discovery process, it could have a chilling effect on witnesses or negatively impact the "fair administration of justice" in the case.

Chutkan warned Trump's lawyers during a hearing last month that there are limits to what the former president can say and reminded them of the conditions of his release while awaiting trial, which in part notify the defendant that it's a crime to obstruct a criminal investigation or intimidate a "witness, victim, juror, informant, or officer of the court."

"Your client's defense is supposed to happen in this courtroom, not on the internet," the judge said. More "inflammatory" statements about the case would increase her urgency in bringing the case to trial to protect the pool of prospective jurors, she said.

Chutkan last week said the trial will begin March 4, 2024, one day before Super Tuesday, when more than a dozen states will hold their presidential primaries.

Trump's social media use was also highlighted in a consent bond order agreed to by his lawyers and the Fulton County district attorney in a separate racketeering case brought against the former president in Georgia state court involving alleged efforts to overturn the results of the 2020 election in that state. The terms of the agreement in part bar Trump from making threats against his 18 co-defendants, witnesses or alleged victims on social media. He has pleaded not guilty to 13 counts he is charged with in the Georgia case.

Trump, however, has continued to attack Smith and Chutkan online, as well as Fulton County District Attorney Fani Willis. On Tuesday, Trump called the special counsel "deranged" and shared a link to a New York Post article about Chutkan with a comment questioning her fairness. 

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• Donald Trump
• Jack Smith