Special counsel obtained search warrant for Donald Trump’s Twitter account

Special Counsel Jack Smith obtained a search warrant for Donald Trump’s Twitter account, @realDonaldTrump, earlier this year, according to newly revealed court documents.

Twitter’s initial resistance to complying with the Jan. 17 warrant resulted in a federal judge holding the company, now called X, in contempt and levying a $350,000 fine. A federal court of appeals upheld that fine last month in a sealed opinion. On Wednesday, the court unsealed a redacted version of that opinion, revealing details of the secret court battle for the first time.

“Although Twitter ultimately complied with the warrant, the company did not fully produce the requested information until three days after a court-ordered deadline,” according to the 34-page opinion by a three-judge panel of the D.C. Circuit Court of Appeals. “The district court thus held Twitter in contempt and imposed a $350,000 sanction for its delay.”

It’s unclear what Smith was seeking from Trump’s account. Trump used the account actively in the run-up to the Jan. 6, 2021 attack on the Capitol, promoting false claims of election fraud, calling his supporters to Washington to “stop the steal” and mounting attacks on his rivals. Obtaining data from Twitter might have revealed patterns about Trump’s use of the account, whether others had access to it and whether there were any draft statements that were unsent.

Smith obtained an indictment of Trump last week on charges related to his efforts to subvert the 2020 election. The document was replete with references to Trump’s tweets, including his Dec. 19, 2020, call for supporters to descend on Washington for a “wild” protest on Jan. 6, 2021, as well as his tweet, amid violence at the Capitol, attacking his vice president, Mike Pence, for refusing to single-handedly upend the election. The indictment suggests Trump, not any surrogate or aide, issued the tweets.

The existence of the warrant shows that prosecutors acquired access to the inner workings of what was once the most powerful megaphone in American politics and perhaps on the world stage. Trump was banned from Twitter just days after Jan. 6, after the company found his tweets to be in violation of its terms. Elon Musk, who took over Twitter last year, restored Trump’s access, but the former president has not yet tweeted from the account since his return.

Twitter’s fight with Smith’s team was rooted in prosecutors’ decision to serve the warrant along with a “nondisclosure order” that prohibited Twitter from notifying Trump — or anyone else — about the warrant’s existence.

“Based on ex parte affidavits, the district court found probable cause to search the Twitter account for evidence of criminal offenses. Moreover, the district court found that there were ‘reasonable grounds to believe’ that disclosing the warrant to former President Trump ‘would seriously jeopardize the ongoing investigation’ by giving him ‘an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates,’” the appeals court noted.

Twitter complained that the order violated the First Amendment and that the federal judge overseeing the matter at the time — U.S. District Court Judge Beryl Howell — should have blocked enforcement of the search warrant until the objection was resolved.

The appeals court endorsed Howell’s decision, saying that even disclosing part of the warrant to Trump would have jeopardized the ongoing criminal investigation.

“[T]he whole point of the nondisclosure order was to avoid tipping off the former President about the warrant's existence,” the panel ruled in an opinion authored by Judge Florence Pan, a Biden appointee. The other two judges on the panel were Biden appointee Michelle Childs and Obama appointee Cornelia Pillard.

The judges emphasized that the nondisclosure order was temporary and reasonably tailored to protect the significant probe. The company, they noted, “remained free to raise general concerns about warrants or nondisclosure orders, and to speak publicly about the January 6 investigation.”

The opinion describes the Justice Department’s “difficulties” in initially making contact with Twitter — which had only recently been taken over by Musk — to serve the search warrant. Prosecutors first attempted to contact the company on Jan. 17 via its website for legal requests but found the page to be inoperative. On Jan. 19, the company finally connected with prosecutors but did not immediately comply with the warrant. On Jan. 25, when prosecutors prodded Twitter again, the company’s counsel claimed she “had not heard anything about the warrant.”

Finally, on Feb. 1, four days after the production deadline, Twitter raised a legal objection to the nondisclosure order.

“Although the company did not question the validity of the search warrant, it asserted that the nondisclosure order was facially invalid under the First Amendment," Pan noted. “Twitter informed the government that it would not comply with the warrant until the district court assessed the legality of the nondisclosure order.”

On Feb. 2, Twitter filed a motion to vacate the nondisclosure order and Smith’s team sought a contempt order from Howell. Howell held Twitter in contempt and approved fines beginning at $50,000 a day, doubling for each day of noncompliance.

“The court adopted that suggestion, noting that Twitter was sold for over $40 billion and that its owner's net worth was over $180 billion. Twitter did not object to the sanctions formula,” the appeals court noted.

Twitter did not fully comply until Feb. 9, resulting in the $350,000 fine.

POLITICO revealed early details of this fight in May, though little information was discernible at the time. A prominent lawyer for Twitter and a lawyer detailed to Smith’s team were seen at the courthouse ahead of oral arguments in the sealed case.