In January 2023, two months after his appointment as special counsel, Jack Smith applied for a search warrant to obtain all of the data associated with Donald Trump’s long-dormant Twitter account. Smith sought not just public posts but direct messages, drafted and deleted posts, and the identity of any individual with access to the account. Smith also asked for “all users [Trump’s account] has followed, unfollowed, muted, unmuted, blocked, or unblocked, and all users who have followed, unfollowed, muted, unmuted, blocked, or unblocked” Trump’s account.
The application was stunning in scope with no justification as to why the government needed such a limitless trove of information—particularly one that clearly ran afoul of Trump’s right to assert executive privilege. So, Smith neatly settled that matter by additionally asking for a nondisclosure order that prevented Twitter from notifying Trump about the search warrant for 180 days.
Beryl Howell, an Obama appointee and chief judge of the district court in Washington at the time, once again wielded her rubber stamp to give Smith what he wanted. The pair claimed that if Trump found out about the warrant, he might intimidate witnesses or stoke “violence.” At one point, Smith and Howell outlandishly insisted Trump might “flee from prosecution” if Twitter notified the former president.
Lawyers for Twitter—at the time being bought by Elon Musk—sought to vacate the nondisclosure order under the company’s First Amendment rights. Twitter asked Howell to delay production of Trump’s data until the nondisclosure matter could be resolved.
But Smith was having none of it. After setting a near-impossible deadline exacerbated by Smith’s ham handed (perhaps intentional) way of serving the warrant—prosecutors first emailed the unprecedented order to an inoperable website at Twitter, causing days of delays—Smith opposed both Twitter’s motion to vacate and asked Howell to hold the company in contempt for failing to immediately comply.
Howell, once again, granted Smith’s wish. She denied Twitter’s motion to vacate or modify the nondisclosure order and took the unusual step of refusing to put a hold on her order pending appeal.
And twisting the knife deeper into the company on the verge of becoming the biggest free speech platform in the world, something Howell and her government apparatchiks vehemently oppose, Howell fined Twitter $350,000 for roughly two days of alleged “delays” in producing the files. At one point during the February 2023 sealed hearing, Howell asked Twitter’s lawyer if the company was trying to “cozy up” to the former president by filing the appeal.
Twitter produced the requested records but appealed Howell’s rulings on the nondisclosure order, her refusal to “stay” her order pending appeal, and the contempt finding that resulted in the massive fine. (Without standing on the issue, Twitter did not raise executive privilege concerns.)
For example, in one passage defending Howell’s decision not to allow Twitter to notify Trump about even a portion of the warrant, Pan said, “such action would not have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure order was to avoid tipping off the former President about the warrant’s existence.”
Not giving up, Twitter then asked the full circuit court for an “en banc,” meaning full court, review of the panel’s decision.
While denying Twitter’s request for reconsideration on January 16, four Republican judges took the unusual step of writing a statement attached to the order. The 12-page missive blasted Smith, Howell, and Pan for violating the Constitution and other “balance of power” protections.
The Special Counsel’s approach obscured and bypassed any assertion of executive privilege and dodged the careful balance Congress struck in the Presidential Records Act. The district court and this court permitted this arrangement without any consideration of the consequential executive privilege issues raised by this unprecedented search. We should not have endorsed this gambit. Rather than follow established precedent, for the first time in American history, a court allowed access to presidential communications before any scrutiny of executive privilege.
– Judge Neomi Rao joined by Judges Gregory Katsas, Justin Walker, and Karen Henderson.
Rao condemned Smith for seeking to obtain the records via court order rather than ask the National Archives for the data, which would have automatically triggered notice to the former president, something Smith purposely wanted to avoid. “I can find no precedent for what occurred here, namely the court-ordered disclosure of presidential communications without notice to the President and without any adjudication of executive privilege.” She called the approach an “end-run around executive privilege.”
She continued to excoriate her colleagues in the D.C. courthouse. “The district court (Howell) afforded no opportunity for the former President to invoke executive privilege before disclosure, and this court (Pan) made no mention of the privilege concerns entangled in a third-party search of a President’s social media account. This approach directly contravenes the principles and procedures long used to adjudicate claims of executive privilege.”
Rao said Howell should have considered the records sought by Smith as “presumptively privileged” and allowed Trump to assert privilege, a longstanding practice that was “flipped” by Howell and Smith.
She also contemplated the future consequences of their decisions—something the Department of Justice and federal judges in Washington routinely fail to consider; as long as historical practices, the rule of law, and the Constitution can be turned on their collective head to destroy Trump, the permanent fall-out does not matter.
Rao explained how the approach could apply to a sitting president, too. “What if, in the course of a criminal investigation, a special counsel sought a warrant for the incumbent President’s communications from a private email or phone provider? Under this court’s decision, executive privilege isn’t even on the table, so long as the special counsel makes a showing that a warrant and nondisclosure order are necessary to the prosecution. And following the Special Counsel’s roadmap, what would prevent a state prosecutor from using a search warrant and nondisclosure order to obtain presidential communications from a third-party messaging application?”
It is unclear whether Twitter will ask the Supreme Court to review the matter. Unfortunately, since the data was produced and the nondisclosure order executed, the issue could be considered “moot” at this point.
But given Rao’s (legitimate) hypothetical at the end, perhaps Smith, Howell, and Pan should hope for a reversal. Otherwise, the dangerous new ground set by their reckless, partisan decisions could come back to bite the hand that now feeds them.
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Julie Kelly is an independent journalist covering the weaponization of the U.S. Government against her citizens, Follow Kelly on Twitter / X.
Background Photo “DC Appeals Court” by AgnosticPreachersKid. CC BY-SA 3.0.
