The social media platform X, formerly Twitter, provided 32 direct messages from President Donald Trump’s account to Special Counsel Jack Smith in response to a secret search warrant.
Mr. Smith obtained the warrant in January as part of an investigation into President Trump’s effort to challenge the results of the 2020 election. He has since indicted the former president with a conspiracy to obstruct the collection and counting of electoral votes.
Twitter’s lawyers argued that they didn’t need to comply with the warrant until the courts resolved its challenge of a nondisclosure order that required the company to keep the warrant secret for 180 days.
Mr. Smith, however, successfully moved to have Twitter held in contempt for noncompliance, ultimately having the court impose a $350,000 fine.
Twitter appealed the ruling in March, but a three-judge panel of the DC appeals court affirmed the lower court’s decision in July.
On Sept. 1, X appealed the matter to the full DC Circuit. Mr. Smith has until Sept. 26 to respond.
On Sept. 15, the court unsealed a slew of documents from the case.
One of the documents, an April 21 brief filed by Mr. Smith in opposition to Twitter’s original appeal, revealed the fact that just 32 direct messages were part of the data Twitter handed over.
The Special Counsel argued that since “only 32 direct-message items, constituting a minuscule proportion of the total production,” were turned over, it was unlikely that any of the material was covered by executive privilege—one of the arguments for non-compliance Twitter raised.
X’s lawyers have argued that the DC district and appeals courts were wrong to dismiss the idea that rather than telling President Trump himself, Twitter could have informed about the warrant “a representative of the former President,” such as one of the people designated as “representatives in all respects that pertain to the records of [Trump’s] Presidency.”
The district court could have imposed a non-disclosure order on the representative, and "the representative could then attempt to assert any privilege on the former President’s behalf without notifying him,” the lawyers said in their request for reconsideration by the full circuit.
The DC district and appeals courts dismissed such a proposal as “preposterous” or a “nonstarter,” which the lawyers argued was legally impermissible because when “a less restrictive alternative to blanket suppression of speech” is presented, “the risk of nonpersuasion … must rest with the government, not with the citizen.”
Twitter was taken over by billionaire Elon Musk, founder of SpaceX and Tesla, in October 2022. Mr. Musk promised a greater emphasis on free speech.
The case against President Trump rests on the premise that he didn’t really believe his own claims that the victory in the 2020 election was illegally taken from him.
President Trump also faces charges, brought by Mr. Smith in Florida, of illegal retention of national defense information. He was furthermore indicted in New York for the alleged falsifying of business records and in Georgia for his efforts to challenge the 2020 election.
