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A federal appeals court said Tuesday it won’t re-hear a case concerning executive privilege and Twitter after special counsel investigators in the 2020 election interference case were allowed to access data from Donald Trump’s account without telling him.
The case has centered around questions about protection of communication around the presidency, and if Trump should have been informed when the special counsel’s office got court approval for a search warrant for his Twitter data. Ultimately, the courts decided federal investigators could access Trump’s account for its criminal probe, and Twitter could be forced to keep the search secret from Trump.
Both a trial-level judge and a three-judge panel in the Washington, DC, appeals court agreed that disclosing the Twitter search to Trump or his representatives could hurt the grand jury investigation. Eleven judges of the DC Circuit declined to look at the case again on Tuesday.
Twitter, now known as X, appealed the order that the social media company not disclose the investigative inquiry. Twitter had been fined $350,000 in court for delaying turning over data as it unsuccessfully tried to convince a judge to give Trump more information.
The investigation, which resulted in charges against Trump, ultimately obtained a few dozen direct messages Trump sent and other data connected to the @realDonaldTrump account.
Initially, Trump wasn’t informed of the pursuit of information by the special counsel, but did learn of the search later, before the public knew.
Conservatives criticize special counsel’s secret pursuit of Trump’s Twitter data
Four conservative-leaning judges on the DC Circuit Court of Appeals criticized Smith’s secret pursuit of Trump’s data from Twitter.
The four judges released a statement with the court’s opinion, though it was not a dissent.
The subset of judges said in their statement that the former president should have had more of an opportunity to try to assert executive privilege over his private communications on the Twitter account he used while in office.
The four judges also warned that the court rulings in the Twitter search case could mean state, federal or congressional investigators could pursue private email and phone records of a sitting president in secret.
The judges’ statement comes at an extraordinary moment when Trump is in the Washington, DC, appeals courts on multiple fronts, challenging criminal charges he is facing, citing protections he believes he should have for his service as president and as a candidate in 2024.
The statement released Tuesday highlights how some of the judges in the powerful appeals court — including one currently weighing Trump’s claim of presidential immunity from criminal prosecution over efforts to overturn the 2020 election — believe more deference should be shown a former president and the executive branch during criminal investigations.
“The Special Counsel’s approach obscured and bypassed any assertion of executive privilege and dodged the careful balance Congress struck in the Presidential Records Act. 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,” Judge Neomi Rao, who was appointed by Trump, wrote in the statement.
Judges Karen Henderson, Greg Katsas and Justin Walker joined the statement as the full court declined to re-hear the case. The judges noted they have never said they would have blocked the special counsel’s office from getting Trump’s Twitter data.
“Nothing in the foregoing precludes the possibility that, if the former President had asserted executive privilege, the Special Counsel could have surmounted it by demonstrating a ‘specific need for evidence in a pending criminal trial,’” Rao added. “But the Court and this circuit have always undertaken that balance with meticulous attention to the constitutional privilege protecting the President and his Office.”
Henderson is currently sitting on the three-judge panel that is considering Trump’s attempt to dismiss his criminal indictment accusing him of conspiracy and obstruction following the 2020 election.
Her vote and reasoning with Biden-appointed judges Florence Pan and Michelle Childs is hotly anticipated and will mark a pivotal moment in the case against Trump.
Pan wrote the initial DC Circuit opinion in August in the Twitter search case. In it, she sided with investigators and said Twitter could be blocked by the courts from telling Trump about the search warrant.
This story has been updated with additional details.
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