Conservative Judges Decry ‘Unprecedented’ Trump Twitter Warrant

Conservative appellate judges, including three appointed by Donald Trump, decried what they view as an unprecedented search of the former president’s social media records as part of the special counsel’s election interference investigation.

Decisions by two courts blessing a search warrant into Trump’s Twitter account “have flipped the presumption” that presidential communications should be privileged, Judge Neomi Rao of the US Court of Appeals for the District of Columbia Circuit wrote Tuesday.

The decisions “break with longstanding precedent and gut the constitutional protections for executive privilege,” said Rao, who was joined by fellow Trump appointees Justin Walker and Gregory Katsas, and Karen Henderson, who was appointed by George H.W. Bush.

The judges wrote separately outlining their views while respecting an order by the full court to deny a request for an en banc rehearing of a DC Circuit panel ruling last year. That ruling backed special counsel Jack Smith’s request to gain access to the records from Trump’s personal account on the company now known as X.

The warrant notably barred Twitter from disclosing its contents to anyone, a mandate approved by the trial court—the US District Court for the District of Columbia—and now left in place twice by the appeals court following a challenge by the social media giant, court filings show.

The judges said in their statement that the “district court and this court permitted this arrangement without any consideration of the consequential executive privilege issues raised by this unprecedented search. We should not have endorsed this gambit,” they wrote.

They also warned such a court-ordered search without notice to the president could have further reaching effects on future presidents, posing scenarios including a special counsel seeking undisclosed access to an incumbent president’s personal email or phone records.

“Under this court’s decision, executive privilege isn’t even on the table, so long as the special counsel makes a showing that a warrant and nondisclosure order are necessary to the prosecution,” they said.

Trump has pleaded not guilty to charges in DC federal court that he tried to overturn the 2020 election. Trump’s trial is set for March, but appeals could delay the proceeding.

The judges’ statement offers a glimpse into the views of the conservative wing of the powerful appeals court, which has authority to review key issues affecting Trump’s case. This includes most recently whether he should be immune from prosecution. Argument on that issue was heard Jan. 9.

Twitter fought the nondisclosure mandate and was fined $350,000 by the district court for failing to comply with the warrant on time. The company appealed to the DC Circuit, arguing that the nondisclosure provision violated its First Amendment rights.

The three-judge DC Circuit panel—comprised of three members appointed by Democratic presidents—unanimously backed the lower court’s fine and search warrant terms.

Joe Biden appointee Florence Pan, who authored the panel decision, found the government had “unquestionably compelling” interests in keeping the warrant confidential. The other judges were Biden appointee J. Michelle Childs and Cornelia Pillard, who was appointed by Barack Obama.

The Justice Department declined to comment, and a lawyer for X didn’t immediately return a request for comment on the DC Circuit denial.