But if the Department of Justice starts assertively mounting a criminal investigation of Trump, it could create delays in other Jan. 6-related trials because defense attorneys for hundreds of defendants could demand access to much of the evidence against Trump as part of the discovery process.
“It’s messy. It’s a headache. And it’s a huge undertaking,” said Pace University law professor Bennett Gershman, a leading expert on so-called discovery practices in criminal cases.
Under longstanding Supreme Court precedents, court rules and Justice Department policies, defense attorneys for current Jan. 6 defendants could demand almost real-time access to any evidence gathered in a probe of Trump’s actions on and around Jan. 6, arguing that his alleged incitement of the crowd that day — both in person and online — undercuts the culpability of those already charged.
“It seems to me if you’re going through the Trump stuff or [Rudy] Giuliani stuff” and you find something useful to existing defendants “you’ve got to turn it over,” Gershman said. “They would have to turn over information to them that is colorably favorable or would be something a defense attorney would want to see.”
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