The dueling Monday night filings from Special Counsel Jack Smith and President Trump offer a preview of the January 6 criminal case, still nascent but already coming into focus as a contest between two visions of Mr. Trump — as a once and potential president, or as a garden-variety criminal defendant.  

Mr. Trump’s response opposing a proposed special order by Mr. Smith — offering a narrower one in its stead —  notes that “in a trial about First Amendment rights, the government seeks to restrict First Amendment rights.” It accuses the Biden administration of campaigning “on the indictment” and its “false allegations.”

The filing argues that President Biden has “capitalized on the indictment, posting a thinly veiled reference to his administration’s prosecution of President Trump just hours before arraignment.” That text was accompanied by an image of the president’s “Dark Brandon” campaign.  It adds that “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.”

Centering Mr. Trump’s candidate, the filing accuses  Mr. Smith of desiring that the “Court assume the role of censor and impose content-based regulations on President Trump’s political speech.” It reckons that the “untargeted method” that governs the proposed order, which would encompass classified and unclassified records, should be replaced by one limited to “genuinely sensitive materials.” It notes that Mr. Smith has “identified the documents it believes are sensitive.” 

Minutes after Mr. Trump’s motion hit the docket, Mr. Smith volleyed back with a reply accusing Mr. Trump of seeking an “order designed to allow him to try this case in the media rather than in the courtroom.” It notes that Mr. Trump’s attorney, John Lauro, on Sunday “appeared on five television programs and discussed this case in detail,” including the role cast for Vice President Pence. 

Mr. Smith ascertains that Mr. Trump “seeks to use the discovery material to litigate this case in the media” but sees that purpose as “contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.” 

Mr. Smith reckons that the “discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion,” meaning that “there is no right to publicly release discovery material.” 

The prosecutor quotes the Supreme Court’s finding, from 1984, that because the rules “authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit.”

Marking what Mr. Smith sees as the former president’s desire to “publicize, outside of court, details of this case, including the testimony of anticipated witnesses,” the special counsel warns Judge Tanya Chutkan that such volubility would “risk tainting the jury pool with inadmissible evidence or otherwise harming the integrity of these proceedings.”        

Mr. Smith adds that the “goal of the defendant’s proposed protective order — prejudicial publicity — is antithetical to the interests of justice,” and views Mr. Trump’s suggestion as an “unreasonable order” meant to “facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom.” 

While the government insists that  “normal order should prevail” and that “no oral argument is necessary,” Judge Chutkan appears desirous to hear more. She has ordered both parties to find a time to hash the matter out in court before Friday.