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The ruling revealed that Special Counsel John “Jack” Smith’s office, which obtained the warrant as part of its investigation into Trump’s efforts to overturn the 2020 election, had asked a judge to bar Twitter from revealing the warrant’s existence. Prosecutors argued that alerting the former president “would seriously jeopardize the ongoing investigation” by giving him an opportunity to destroy evidence or change his conduct.
In the 3-0 opinion, the US Court of Appeals for the DC Circuit rejected Twitter’s objections to the nondisclosure order and upheld the lower court judge’s civil contempt sanction. The opinion notes that Twitter ultimately complied with the warrant.
Judge Florence Pan, who was appointed to the court by President Joe Biden, wrote that prosecutors had offered “unquestionably compelling” reasons to stop Twitter from notifying Trump about the search warrant, and that the government’s interests were “particularly strong” because of the subject of the investigation — efforts to undo “a valid national election.”
Biden ‘Going CRAZY’
In a post on his Truth Social platform, Trump — the front-runner for the Republican presidential nomination for 2024 — criticized how the special counsel’s office had handled the warrant issue.
“Just found out that Crooked Joe Biden’s DOJ secretly attacked my Twitter account, making it a point not to let me know about this major ‘hit’ on my civil rights,” he wrote. “My Political Opponent is going CRAZY trying to infringe on my Campaign for President.”
Trump was indicted on August 1 on felony charges that he conspired to obstruct the election. He has pleaded not guilty.
A spokesperson for Smith declined to comment on the opinion. A representative of X didn’t immediately respond to requests for comment.
X’s lawyer, Ari Holtzblatt of WilmerHale, didn’t respond right away. He is also representing the company against a lawsuit by Trump over his suspension from the platform following the Jan. 6, 2021, attack on the US Capitol.
‘Evidence of Criminal Offenses’
The fight unfolded largely in secret court proceedings until Wednesday, when the DC Circuit ordered a redacted version of its July 18 opinion unsealed.
Smith’s office had obtained a search warrant for data and other records related to Trump’s @realDonaldTrump account in mid-January, according to the opinion. The district judge who signed off on it — US District Judge Beryl Howell, then the DC court’s chief judge — found probable cause at the time to search the account “for evidence of criminal offenses.”
The DC Circuit noted that the Justice Department had trouble serving Twitter with a copy of the warrant and the nondisclosure order because the company’s website for legal requests was “inoperative.” Prosecutors were able to notify a lawyer for Twitter within a few days.
The DC Circuit panel also featured Judge Nina Pillard, who was appointed by former President Barack Obama, and Judge J. Michelle Childs, who was appointed by Biden.
First Amendment Argument
Twitter objected to complying with the warrant on the grounds that the nondisclosure order — which was set to last for 180 days — violated the company’s First Amendment free speech protections and that it would bar Trump from having a chance to raise executive privilege challenges. The company maintained that it shouldn’t have to comply with the warrant until that issue was fully litigated.
Howell ruled against the company and ordered it to comply by February 7; the original deadline had been Jan. 27. Twitter missed that new deadline and didn’t produce all of the records until the evening of Feb. 9, triggering the monetary sanctions.
The judge adopted the government’s proposal for how to calculate the sanctions — $50,000 per day of noncompliance, doubling that rate every additional day — and pointed out that the company had been sold to Elon Musk for more than $40 billion and that Musk’s net worth was more than $180 billion at the time.
The judge issued another opinion in March finding the nondisclosure order was “narrowly tailored” to “protect the compelling interest of safeguarding the integrity and secrecy of an ongoing criminal investigation.”
On June 20, the government alerted the district judge that it would allow Twitter to notify Trump about the warrant. Twitter paid the fine, but it was held in an escrow account while it pressed its appeal, according to the opinion.
The appeals court held that Howell wasn’t required to wait to rule on the contempt issue — and delay the government’s access to evidence in a criminal investigation — until it resolved the merits of Twitter’s challenge to the nondisclosure order.
The case is 23-5044, US Court of Appeals, District of Columbia Circuit (Washington).
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