WASHINGTON (CN) — Special counsel Jack Smith obtained a search warrant for former President Donald Trump’s Twitter account in January this year, newly unsealed court documents revealed Wednesday.
Twitter, now called X by new owner Elon Musk, initially resisted turning over access to the former president’s long-unused account and challenged an attached “nondisclosure order” that prohibited the company from notifying anyone, including Trump, about the warrant.
The company only provided the requested materials three days after a court-imposed deadline, leading to U.S. District Judge Beryl Howell to hold the social media in contempt of court and issuing a $350,000 fine. Twitter appealed.
While the redacted opinion in Twitter's appeal, written by U.S. Circuit Judge Florence Pan, does not specify what materials Smith sought from Trump’s account, it does reveal that the warrant was a part of the Justice Department’s expansive investigation into Trump’s efforts to interfere in the 2020 election that led to four criminal charges last week, all of which Trump has pleaded not guilty to.
According to the opinion, Smith and his team applied and received the warrant on Jan. 17 along with the nondisclosure order. The federal judge who approved the warrant found reason to believe that notifying Trump would “seriously jeopardize the ongoing investigation” and would give him a chance to destroy evidence.
On appeal, Twitter told the three-judge panel that the nondisclosure order violated the First Amendment and the Stored Communications Act and that Howell, a Barack Obama appointee, should have stayed the enforcement of the warrant until its challenges were resolved. The company said it viewed the contempt of court charge as an abuse.
The panel, made up of U.S. Circuit Judges Cornelia Pillards, Michelle Childs and Pan, unanimously affirmed Howell’s decisions.
According to the opinion, Smith and his team initially tried to send Twitter the warrant through a site intended for legal requests on Jan. 17, but the site was “inoperative.” Prosecutors were then able to submit the warrant two days later, but Twitter’s lawyers said they hadn’t heard anything when asked on Jan. 25, two days before the warrant’s deadline.
The company then filed a motion to vacate or modify the nondisclosure order on Feb. 2, arguing that its First Amendment right to communicate with a subscriber was being infringed and that if it complied, the order would skirt a potential executive privilege defense by Trump to protect his communications.
Pan wrote that the interests of the government’s investigation outweighed any potential First Amendment violation, “as the whole point of the nondisclosure order was to avoid tipping off the former President about the warrant’s existence.” She also dismissed an alternative plan the company had proposed to notify Trump’s lawyers as “unworkable.”
Twitter incurred the $350,000 fine for failing to provide access to Trump’s account on Feb. 7, when Howell gave the company a chance to submit the information before the end of the day. The court then imposed a $50,000 fine for each day over the deadline which would double every additional day.
The company argued in its appeal that the fine was unreasonably coercive, and that if it had not complied after a month, “it would have required Twitter to pay a sanction greater than ‘the entire world’s gross domestic product.’”
The three-judge panel rejected the argument, finding the fine reasonable for a $40 billion company and its billionaire owner who is regularly lauded as the wealthiest person in the world.
Trump reacted to the revelation on his social media site Truth Social — a Twitter clone, with “truths” rather than tweets — characterizing the warrant as an attempt by President Joe Biden to infringe on Trump's 2024 presidential campaign.
“Just found out that Crooked Joe Biden’s DOJ secretly attacked my Twitter account, making it a point not to let me know about this major ‘hit’ on my civil rights,” Trump posted Wednesday. “Nothing like this has ever happened before. Does the First Amendment still exist?”Follow @Ryan_Knappy
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.