Special Counsel Jack Smith Can Keep Trump’s DMs, Appeals Court Rules

On Tuesday, an appeal brought by X, the social media platform formerly known as Twitter, in a federal court regarding a search warrant and nondisclosure agreement over former President Donald Trump‘s Direct Messages and data issued by Special Counsel Jack Smith was denied.

X appealed on the basis that the nondisclosure agreement limited their First Amendment rights. The special counsel insisted that the NDA was in place to keep Trump in the dark about moves being made in the investigation.

The court upheld the nondisclosure agreement. But in the appeal, the scope of information the special counsel sought access to has been revealed. It included all of Trump’s direct messages, devices used to access the account, his drafts folder and any communication the former president engaged in directly with X.

X argued that turning over the data would infringe on Trump’s executive privilege, a point the dissenting judges agreed with.

Judge Neomi Rao, who was appointed by Trump, said that the special counsel violated “the careful balance Congress struck in the Presidential Records Act.” However, the majority of the court ruled to uphold the warrant and nondisclosure order.

This is not X’s first attempt at fighting the special counsel and their criminal investigation of Trump. X was first served the warrant for access to Trump’s data in January 2023. Upon granting the warrant, the federal district court agreed that “it was reasonable to believe disclosure of the request would result in the destruction of or tampering with evidence, intimidation of a potential witness and serious jeopardy to the investigation.”

X failed to comply with the warrant initially and was held in contempt by a D.C. district court. A fine of $350,000 was levied upon X and the data Smith was seeking was eventually turned over to his office.

In August 2023, X’s first appeal was made to the U.S. Court of Appeals for the District of Columbia Circuit and was rejected by a three-judge circuit court panel, keeping X bound by the nondisclosure order.

Then, in September, X asked for a rehearing before the court’s entire slate of judges in what is known as an “en banc” rehearing, arguing that the prior decision was incorrectly decided. The appeal was rejected Tuesday, with seven of the 11 judges voting to uphold the warrant and nondisclosure order.

U.S. District Judge Beryl Howell called the efforts by X to deny a federally issued warrant and nondisclosure order “extraordinary.” She speculated that the fight being put up by X owner Elon Musk and his company is an attempt to “cozy up to Trump,” according to court transcripts.