February 25, 2024

A federal appeals court ruled Tuesday that Special Counsel Jack Smith can have access to former President Donald Trump‘s Twitter account, as he investigates the former president for 2020 election interference. 

The full U.S. Court of Appeals for Washington, D.C., rejected a petition from Twitter to rehear the case after a three-judge panel ruled agaist the social media company in July.

The case can now move to the Supreme Court

Smith had gone behind Trump’s back and with a search warrant asked Twitter, now X, for the contents of the former president’s account, including direct messages.

The special counsel muzzled the tech company with a non-disclosure agreement, which sought to prevent Trump from being told about the search. 

Special Counsel Jack Smith went behind former President Donald Trump’s back and sought the contents of his Twitter account from Twitter. On Tuesday the full U.S. Court of Appeals for Washington, D.C rejected Twitter’s request to rehear the case 

At the end of the Trump administration those same files went to the National Archives, but Smith admitted Twitter was asked because getting the content from NARA ‘would trigger notice to the former president’ under the Presidential Records Act. 

Smith had asked Twitter for access to all of the ex-president’s tweets including direct messages ‘received by, stored in draft form, in or otherwise associated with the subject account including attachments, multimedia, header information, metadata and logs.’

Twitter eventually complied with the warrant.

The release included at least 32 direct messages sent by Trump. 

Four judges appointed by Republican presidents slammed the full court’s decision not to rehear the case in a 12-page statement released alongside the opinion. 

U.S. Circuit Judge Neomi Rao, a Trump appointee, wrote the statement and it was signed by Circuit judges Justin Walker, Gregory Katsas and Karen Henderson. 

‘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,’ the conservative judges wrote. 

Special Counsel Jack Smith gained access to former President Donald Trump's Twitter account by going to Twitter instead of the National Archives, in which the Presidential Records Act would have triggered that Trump be informed of the search

Special Counsel Jack Smith gained access to former President Donald Trump’s Twitter account by going to Twitter instead of the National Archives, in which the Presidential Records Act would have triggered that Trump be informed of the search

The judges said Smith ‘obscured and bypassed any assertion of executive privilege and dodged the careful balance Congress struck in the Presidential Records Act.’  

Rao and the other judges feared that the decision opened up a Pandora’s box of problems down the road – especially with presidents using more electronic communications. 

‘Without a presumption for executive privilege, new questions will invariably arise, particularly because nothing in the panel’s opinion is limited to a former President,’ the judges said. 

‘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?

‘And how might Congress benefit from this precedent when it seeks to subpoena presidential materials from third parties in an investigation or impeachment inquiry?’ Rao and the other judges asked.