Left: Former President Donald Trump speaks at a campaign rally, Tuesday Aug. 8, 2023, at Windham High School in Windham, N.H. (AP Photo/Robert F. Bukaty). Center: FILE – Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington. (AP Photo/J. Scott Applewhite, File). Right: FILE – Elon Musk leaves the Phillip Burton Federal Building and United States Court House in San Francisco, Tuesday, Jan. 24, 2023. (AP Photo/ Benjamin Fanjoy, File)
The special prosecutor leading the investigation into Donald Trump’s alleged efforts to overturn the results of the 2020 special election was apparently battling Twitter months ahead of the bombshell indictment, as the social media company refused to comply with a search warrant for the ex-president’s data — to the tune of a $350,000 fine.
Special counsel Jack Smith served a court-approved warrant on Twitter on Jan. 17, according to a newly unsealed ruling from the U.S. Circuit Court of Appeals for the District of Columbia. Twitter, headed by Elon Musk, initially refused to comply, claiming that a nondisclosure order that accompanied the warrant preventing Twitter from telling anyone “about the existence or contents of the warrant” was unconstitutional.
After a few rounds of back-and-forth with prosecutors and the judge who approved the warrant — U.S. District Judge Beryl Howell — Twitter did ultimately comply, on Feb. 9. But because that compliance came days after a court-ordered deadline, Howell found the social media giant in contempt of court and issued $350,000 in sanctions.
Twitter appealed, and in a July 18 ruling unsealed Wednesday, a unanimous three-judge appeals court panel upheld the lower court’s order. The judges rejected Twitter’s argument that the nondisclosure order violated the First Amendment and that Howell should have stayed enforcement of the warrant pending appeal.
Tuesday’s ruling implied that Twitter didn’t make it particularly easy for prosecutors to serve the search warrant for Trump’s data and account — and once service was confirmed, the company’s lawyer appears to have signaled that compliance would not be immediate.
“On January 17, 2023, the government tried to submit the papers through Twitter’s website for legal requests, only to find out that the website was inoperative,” says the ruling, written by U.S. Circuit Judge Florence Pan, a Joe Biden appointee. “Two days later, on January 19, 2023, the government successfully served Twitter through that website. On January 25, 2023, however, when the government contacted Twitter’s counsel to check on the status of Twitter’s compliance, Twitter’s counsel stated that she ‘had not heard anything about [the] [w]arrant.’ She informed the government that an on-time production ‘would be a very tight turnaround,’ but she confirmed that the account’s available data was preserved.”
Twitter objected to the warrant on the grounds that the nondisclosure order was “facially invalid” under the First Amendment and told the government that it wouldn’t comply until Howell determined whether the order was in fact constitutional.
Ultimately, the judges found that the government’s warrant and nondisclosure agreement passed constitutional muster: it was justified by a compelling government interest — the need not to jeopardize the criminal investigation into the former president — and narrowly tailored enough to avoid unnecessary restrictions on free speech, noting that it was set to expire six months after issuance and applied only to information that Twitter had obtained from its involvement in the investigation.
“Twitter remained free to raise general concerns about warrants or nondisclosure orders, and to speak publicly about the January 6 investigation,” the order notes.
The judges also found that the limitations placed on Twitter through the protective order were justified.
“At the time of Twitter’s challenge to the nondisclosure order, some information about grand jury subpoenas or visitors to the federal courthouse was public,” the ruling says. “But Twitter sought to disclose a different category of information, i.e., the existence of a search warrant, which was issued by the district court upon a finding of probable cause that evidence of a crime might be found in the former President’s Twitter account.”
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Such disclosure, the court said, “would have harmed the integrity and secrecy of the ongoing grand jury investigation, despite public knowledge of the broader investigation.”
The judges also upheld the lower court’s sanction order, finding that Howell “was on firm footing when it ruled that Twitter had not substantially and in good faith complied with the warrant.” Nor was the amount of the fine excessive, the panel found.
“The district court here imposed a geometric sanctions schedule that would apply if Twitter failed to complete its production by 5:00 p.m. on February 7: penalties began at $50,000 per day, to double every day,” the opinion says. “To be sure, that schedule was highly coercive. As Twitter belatedly points out, after roughly one month of noncompliance, it would have required Twitter to pay a sanction greater than ‘the entire world’s gross domestic product.””
However, the judges noted, Twitter appeared to consent to the sanctions structure. Moreover, “the $350,000 sanction ultimately imposed was not unreasonable, given Twitter’s $40-billion valuation and the court’s goal of coercing Twitter’s compliance,” the ruling added.
A footnote revealed that prosecutors initially — and mistakenly — cited concerns that Trump was a potential flight risk in its warrant request.
“The district court also found reason to believe that the former President would “flee from prosecution,” the footnote said (citations omitted). “The government later acknowledged, however, that it had ‘errantly included flight from prosecution as a predicate’ in its application. The district court did not rely on risk of flight in its ultimate analysis.”
Pan was joined in the ruling by U.S. Circuit Judges J. Michelle Childs, also a Biden appointee, and Cornelia T.L. Pillard, a Barack Obama appointee.
Twitter did not reply to Law&Crime’s request for comment in time for publication.
Read the opinion, below.
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