September 23, 2023

Overshadowed by the news that Special Counsel Jack Smith secretly obtained access to Donald Trump’s Twitter account, a three-judge panel of the D.C. Circuit relegated a blockbuster revelation to a footnote. 

“The district court also found reason to believe that the former President would ‘flee from prosecution,’” it began.

The appellate court’s ruling does not reveal why U.S. District Court Beryl Howell, who oversaw the special counsel Jan. 6 investigation before handing over her title as the jurisdiction’s chief judge in March, made such an explosive finding to justify imposing a non-disclosure order preventing Twitter from telling Trump that prosecutors demanded access to his account. 

According to the ruling, prosecutors, for reasons currently unknown, ultimately shelved that argument, and Howell ultimately relied on other factors to support her ruling. 

“The government later acknowledged, however, that it had ‘errantly included flight from prosecution as a predicate’ in its application,” the carefully worded footnote continued. “The district court did not rely on risk of flight in its ultimate analysis.” 

There’s no indication that Howell ever withdrew her finding.

The D.C. Court said that Howell simply leaned on other reasons for upholding a non-disclosure order for Twitter, like giving Trump “an opportunity to destroy evidence, change patterns of behavior” or “notify confederates.” 

A Trump spokesman did not respond to a request for comment about the flight-risk footnote. In a Truth Social post, the former president blasted the broader revelation that Smith had used a search warrant to get records and data about his dormant @realdonaldTrump Twitter account, writing, “These are DARK DAYS IN AMERICA!”

Chief U.S. District Judge for the District of Columbia Beryl A. Howell listens during the investiture ceremony for U.S. District Judge Trevor N. McFadden April 13, 2018 at the U.S. District Court in Washington, DC. Alex Wong/Getty Images

‘Extraordinary Finding’

So how did a federal judge inside the nation’s capital rule differently?

CNN legal analyst Jennifer Rodgers, a former federal prosecutor who spent more than 13 years in the Southern District of New York, emphasized that the bar for determining Trump to be a flight risk would have been lower in the context of a search warrant than for pre-trial release. 

She told The Messenger that prosecutors could have relied on Trump’s “general characteristics” to meet the former standard.

“So if you had a defendant who is a multimillionaire or a billionaire, who has extensive contacts overseas, and who is potentially facing a serious criminal matter, you would probably throw in risk of flight from prosecution as one of your reasons — even if you didn’t have a specific piece of evidence” showing an attempt to flee, Rodgers said. 

Rodgers ultimately viewed the footnote as a federal prosecutor’s instinct for caution.

“Government lawyers can’t help themselves,” she said. “It’s always belt-and-suspenders. You know, you wanna make all the arguments that you have.”

Former federal prosecutor Mitchell Epner noted that Trump checks even other boxes, like assets overseas and the ability to travel on a private plane, and the public has not seen the evidence prosecutors initially used to make their argument.

“Having said that, it’s an extraordinary finding,” noted Epner, a partner at Rottenberg Lipman Rich PC. “I cannot imagine that a judge lightly made that finding that the former president of the United States had a likelihood to flee prosecution, if he learned he was being investigated.”