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WASHINGTON (CN) — The D.C. Circuit Court of Appeals Tuesday rejected a request by X, formerly Twitter, for an en banc hearing regarding an appeal of rulings granting special counsel Jack Smith’s request for a search warrant of Donald Trump’s account.
Included in the court’s judgment, a group of four conservative judges issued a statement saying they respected the denial but expressed regret as to granting the warrant and a nondisclosure agreement that blocked X from notifying Trump about it.
U.S. Circuit Judge Neomi Rao, a Trump appointee, who wrote the statement, was joined by Judges Karen Henderson, Gregory Katsas and Justin Walker, respectively a George H.W. Bush appointee and two Trump appointees.
“This case turned on the First Amendment rights of a social media company, but looming in the background are consequential and novel questions about executive privilege and the balance of power between the president, Congress and the courts,” Rao wrote in Tuesday’s statement.
Court documents unsealed in August — days after a federal grand jury indicted Trump in Washington for his efforts to subvert the 2020 election — revealed that Smith had obtained the search warrant in January 2023 as part of his investigation into the former president.
Smith obtained Trump’s deleted tweets and direct messages, which included 32 “direct-message items.”
Attorneys representing X argued before U.S. District Judge Beryl Howell in a February 2023 hearing that the nondisclosure agreement wrongfully violated the company’s First Amendment right to communicate with their users and refused to turn over access until three days after a court deadline.
Howell, a Barack Obama appointee, held the company in contempt of court and issued a $350,000 fine.
She dismissed the social media company’s resistance, asking whether it stemmed from a desire by new owner Elon Musk to “cozy up with the former president.”
“Is this to make Donald Trump feel like he is a particularly welcomed renewed user of Twitter here?” Howell said, referring to Musk’s decision to reinstate Trump’s account following his removal in the wake of the Jan. 6, 2021, attack on the U.S. Capitol.
In her opinion, Rao reflected that Howell and a D.C. Circuit panel — made up of Circuit Judges Florence Pan, Cornelia Pillards and Michelle Childs — failed to consider how the “unprecedented search” would raise significant executive privilege issues.
“We should not have endorsed this gambit,” Rao said. “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.”
Additional court documents unsealed in September show Smith defended the search before the D.C. Circuit by warning of potential violence if Trump were made aware of the warrant in the same way violence followed the FBI raid on Trump’s Mar-a-Lago estate.
After Trump publicly announced the FBI raid on his Mar-a-Lago estate, threats against federal law enforcement surged, leading to the fatal shooting of a man who tried to breach an FBI building in Cincinnati.
Rao argued that the warrant failed to meet the necessary “strong showing of need” to overcome executive privilege, pointing to the Watergate scandal, when then-special counsel Archibald Cox sought Richard Nixon’s infamous tapes.
There, the Circuit waived executive privilege, but only authorized the release of relevant and “admissible” portions of Nixon’s tapes while requiring that the rest “be excised” and “restored to its privileged status.”
Ultimately, Rao conceded that because Trump did not invoke executive privilege after eventually learning of the warrant, that issue was not before the en banc court, but instead sought to highlight the unprecedented circumstances.
“The court here permitted a special prosecutor to avoid even the assertion of executive privilege by allowing a warrant for presidential communications from a third party and then imposing a non-disclosure order,” Rao wrote. “Because these issues are likely to recur, I write separately to explain how the decisions in this case break with longstanding precedent and gut the constitutional protections for executive privilege.”
A D.C. Circuit panel is also weighing an appeal by Trump in his election subversion case, which is before U.S. District Judge Tanya Chutkan, challenging the judge’s denial of two dismissal motions that claimed presidential immunity from prosecution.
Trump’s legal team filed the motions in an attempt to delay or cancel a trial in the case, scheduled to begin March 4. Proceedings in the federal district court have since been paused while the D.C. Circuit considers Trump’s appeal.
A skeptical three-judge panel made up of U.S. Circuit Judges Karen Henderson, Michelle Childs and Florence Pan heard arguments Jan. 9 on Trump’s theory of absolute immunity and is expected to rule in the coming days.
Trump likely will appeal a negative ruling and request an en banc hearing before the full D.C. Circuit orappeal to the Supreme Court.
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