Jack Smith Reveals Plans to Use Trump’s Cellphone Data in Federal Election Trial

Special counsel Jack Smith speaks to the press at the Department of Justice building in Washington, on August 1, 2023. (Saul Loeb/AFP via Getty Images)

Special counsel Jack Smith has revealed plans that he may present data analysts to comment on then-President Donald Trump’s White House cellphone and Twitter data in a forthcoming Washington, D.C., trial in the federal election case.

In a court filing on Monday, Mr. Smith outlined the government’s intention to call up to three expert witnesses to testify in the case, in which President Trump is charged with four counts related to his post-election efforts to challenge the process and results of the 2020 election.

The filing provides a glimpse into how prosecutors plan to use the mountains of data obtained under warrant from X, then Twitter, about President Trump’s account, including location data.

“The government has provided its Notice of Expert Witnesses to the defendant,” reads the filing submitted to the U.S. District Court for the District of Columbia, which outlines each expert’s area of expertise and expected testimony.

The experts will use the data to paint a picture of how President Trump used his phones, including use of the Twitter app, “throughout the post-election period” and on Jan. 6, 2021, after the president’s speech to his supporters at the Ellipse before the breach of the U.S. Capitol, according to the filing.

The experts, referred to as Expert 1, Expert 2, and Expert 3, are anticipated to “aid the jury” in understanding the data, and how it has been visually presented on a map after being extracted from the White House phones of President Trump and another unidentified individual close to him.

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The data is expected to be key in “understanding the movements of individuals toward the Capitol area during and after the defendant’s speech at the Ellipse.”

However, the move could be found to fall short of directly implicating President Trump, whose phones were routinely managed by others, including his social media manager, Deputy Chief of Staff Dan Scavino.

In February, a federal judge ordered Twitter to hand over a large volume of President Trump’s account data to Mr. Smith, according to documents unsealed in August. The data included deleted direct messages, other direct messages, draft posts, and information on the locations of users who posted to the account.

Lawyers for Twitter, who tried and failed to resist the court order, described some of the data as “confidential communications” between President Trump and his senior advisers.

The Witnesses

The first witness, described as an expert in the “interpretation and visual representation of geographic location data,” is expected to provide their analysis about the use of ArcGIS (Geographic Information Systems) software to plot on a Google map the movements of Trump supporters from the Ellipse “to an area encompassing the United States Capitol building.”

The second witness is anticipated to describe to jurors the process of determining device location history data collected by Google and provide insights into President Trump’s location data collected under a search warrant and graphically presented by Expert 1.

The third witness, an expert in the analysis of cell phone data, including the use of Twitter and other phone apps, is expected to testify to extracting and processing data from the White House phones of President Trump and another individual (referred to as Individual 1).

This expert’s review also included “analyzing images found on the phones and websites visited,” as well as determining data on the phones’ usage after the 2020 election, and “on and around” Jan. 6, 2021.

Their review also “specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.”

President Trump has filed four motions to dismiss the case. U.S. District Judge Tanya Chutkan rejected several motions, and the defense has since appealed the motion to dismiss based on presidential immunity to the U.S. Court of Appeals for the D.C. Circuit.

On Dec. 11, Mr. Smith attempted to bypass the district court, asking the U.S. Supreme Court for an expedited ruling. The Supreme Court responded hours later in an order saying that it would consider reviewing the case, giving the defense until Dec. 20 to respond. The case may be sent back to the district court if President Trump’s legal team doesn’t agree on an expedited ruling.

The prosecutors, preempting President Trump’s appeals defense, are asking the Supreme Court “whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”

President Trump had asked the district court to pause proceedings pending an appeal. The trial schedule would be thrown off if the motion is granted.

The trial is currently scheduled to commence on March 4, the day before the Super Tuesday primary elections.