Special Counsel Jack Smith’s battle with X, formerly Twitter, over a warrant for former President Donald Trump’s account reached the Supreme Court Tuesday.
U.S. District Court Judge for the District of Columbia Beryl Howell granted Smith’s request for a warrant in January 2023, along with a nondisclosure order prohibiting X from notifying anyone of the warrant’s existence. This allowed Smith access to data like draft tweets and direct messages as part of his investigation into Trump’s actions around Jan. 6.
The company argues that the precedent set by lower court rulings on the issue has “far-reaching” implications, allowing the government to “invade other privileges,” such as attorney-client or journalist-source, by “seeking communications from, and gagging, third parties.”
X’s delay in compliance while it fought the order on First Amendment grounds earned it a $350,000 sanction, which a three-judge panel of the D.C. Circuit Court of Appeals upheld.
“In an unprecedented end-run around executive privilege, Special Counsel Jack Smith obtained a nondisclosure order preventing Twitter from notifying former President Trump of a warrant for private communications that he sent and received during his presidency,” X’s petition states. “The courts below rejected Twitter’s First Amendment challenge to the nondisclosure order after ordering Twitter to produce the communications without affording the former President an opportunity to assert privilege over them.”
X asked the justices in its petition to consider whether electronic communications services providers can be forced to turn over potentially privileged communications while there is a pending First Amendment challenge to an order that prevents the company from notifying the user.
It also asked whether “the First Amendment permits gagging a provider in a highly public investigation where the government does not (a) demonstrate that disclosure would jeopardize the investigation’s integrity; or (b) disprove the workability of a less-restrictive alternative.”
The D.C. Circuit declined in January to reconsider the issue before the full court. However, four judges criticized their colleagues for failing to provide Trump a chance to invoke executive privilege by approving the request for a nondisclosure order.
“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,” Judge Naomi Rao, a Trump appointee, wrote in a statement at the time.
X argued in its petition that this case is “an ideal vehicle to resolve these significant and recurring issues.”
“The opinion below will radically alter the constitutional landscape, ‘declar[ing] open season on’ privileged records as long as the government can find them on a Twitter (or Microsoft, Google, or Amazon) server,” X argued.
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