Special counsel Jack Smith at the beginning of 2023 obtained a search warrant for the Twitter account of Donald Trump as part of his criminal investigation of the former president‘s effort to reverse his loss in the 2020 election, a federal appeals court decision revealed Wednesday.
Twitter, now known as X, initially delayed production of the materials required by that warrant as it filed a sealed court case seeking to block an order that it not disclose the existence of the warrant to Trump or anyone else, the decision says.
The appeals court ruling says Twitter completed its production of Trump’s account information for Smith’s office on Feb. 9.
The 34-page decision also upheld a lower-court judge’s $350,000 contempt sanction on the social media company for failing to comply with the warrant until after a three-day deadline.
Smith’s office had argued, and the lower-court judge agreed, that if Twitter notified Trump of the warrant’s existence it would put the investigation at risk and give him a chance to destroy evidence that was sought by the warrant, according to the decision.
Twitter had appealed the contempt ruling and the non-disclosure order, arguing that it violated the company’s free speech rights under the Constitution’s First Amendment to communicate with “its subscriber,” Trump.
And Twitter argued that by keeping the warrant secret from Trump, he would be unable to shield communications made using his Twitter account from prosecutors by asserting executive privilege.
The company also said the order violated the federal Stored Communications Act.
The unanimous ruling against the company on all points was issued by a three-judge panel of the U.S. Court Court of Appeals for the District of Columbia Circuit.
Two of the judges on the panel, J. Michelle Childs and Florence Pan, were appointed by President Joe Biden, while the third, Cornelia Pillard, was appointed by former President Barack Obama.
The decision includes sealed information that was not visible in the public copy.
Twitter was bought last year by Elon Musk, the billionaire who also heads Tesla, SpaceX. He recently renamed the company X.
A spokesman for Smith declined to comment to CNBC on the ruling.
X did not immediately respond to CNBC’s requests for comment.
Smith has obtained two indictments of Trump.
One, filed June in federal court in southern Florida, charges the former president with retaining classified documents after he left the White House, and trying to hide those records from government officials.
The second indictment, filed last week in D.C. federal court, charges Trump with a fraudulent scheme to reverse his loss in the 2020 election to Biden.
Trump was active on Twitter before the election, and in the weeks after it leading up to the Jan. 6, 2021, riot by his supporters at the U.S. Capitol, which disrupted a joint session of Congress meeting to confirm Biden’s victory.
Trump used his Twitter account to promote his false claims of election fraud and to encourage supporters to visit Washington on Jan. 6, when he held a rally calling on lawmakers and then-Vice President Mike Pence to reject certification of the election results.
“Big protest in D.C. on January 6th,” Trump tweeted on Dec. 19, 2020, at 1:42 a.m. ET.
“Be there, will be wild!”
Smith’s office applied for and obtained the search warrant for Trump’s account on Jan.17. The warrant was related to his probe of Trump’s actions after the 2020 election.
The warrant “directed Twitter to produce data and records related to the ‘@realDonaldTrump’ Twitter account,” according to the appeals court ruling.
The special counsel at the same time obtained a non-disclosure order from a Washington, D.C., federal district court judge that “prohibited Twitter from disclosing the existence or contents of the search warrant to any person.”
“The district court found probable cause to search the Twitter account for evidence of criminal offenses,” the decision noted.
“Moreover, the district court found that there were ‘reasonable grounds to believe’ that disclosing the warrant to former President Trump ‘would seriously jeopardize the ongoing investigation’ by giving him ‘an opportunity to destroy evidence, change patterns of behavior .. or notify confederates,” the ruling says.
A footnote in the ruling revealed that the lower-court judge “also found reason to believe that the former
President would ‘flee from prosecution.’ “
Smith’s office “later acknowledged, however, that it had ‘errantly included flight from prosecution as a predicate’ in its application” and “the district court did not rely on risk of flight in its ultimate analysis,” the appeals ruling noted.
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