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'Does The 1st Amendment Still Exist,' Trump Howls, After Multiple Courts Sign Off On Twitter Warrant

Sucks to be a defendant, right?

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(Photo by Drew Angerer/Getty Images)

Just found out that Crooked Joe Biden’s DOJ secretly attacked my Twitter account, making it a point not to let me know about this major “hit” on my civil rights. My Political Opponent is going CRAZY trying to infringe on my Campaign for President. Nothing like this has ever happened before. Does the First Amendment still exist? Did Deranged Jack Smith tell the Unselects to DESTROY & DELETE all evidence? These are DARK DAYS IN AMERICA! — Former Leader of the Free World

Donald Trump is currently ranting into the void about yesterday’s DC Circuit order upholding sanctions on Twitter for failing to turn over his account information to Special Counsel Jack Smith in timely fashion. The “attack” took the form of search warrant signed by a magistrate judge, accompanied by a non-disclosure order:

On January 17, 2023, the government applied for, and obtained, a search warrant that directed Twitter to produce data and records related to the “@realDonaldTrump” Twitter account. At the same time, the government applied for, and obtained, a nondisclosure order, which prohibited Twitter from disclosing the existence or contents of the search warrant to any person. 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 warrant required Twitter to tum over all requested information by January 27, 2023. The nondisclosure order was to remain in effect for 180 days after its issuance.

The Circuit Court’s ruling paints Twitter as barely functional under the ownership of Elon Musk.

On January 17, 2023, the DOJ promptly submitted the warrant through the company’s portal for legal requests — a portal which exists because actually something like this has “happened before.” But in the event, prosecutors discovered that the portal, like two-thirds of Twitter’s 2022 workforce, was inoperative.

On January 19, the portal came back to life, and the DOJ managed to effect service, after which … nothing happened.

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Reached by the government on January 25, Twitter’s counsel had heard nothing of the warrant, but committed to complying speedily. On February 1, four days after the compliance deadline, Twitter announced that it would not comply after all and that it intended to challenge the order in District Court.

In its challenge, Twitter accepted the sufficiency of the warrant but claimed that the non-disclosure provision violated its First Amendment right to communicate with its client. Bizarrely, it argued that Trump might have a right to assert executive privilege over his communications on the platform, and thus demanded the right to inform him of the warrant. At a hearing on February 7, Judge Beryl Howell rejected those arguments, as well as Twitter’s demand that the court stay compliance with the supposed “hit” on Trump’s civil rights while it litigated the secret order to “infringe” on his campaign for president.

Asked by Judge Howell if Twitter could comply with the warrant by close of business that day, the company’s counsel replied, “I believe we are prepared to do that. Yes, Your Honor.”

As added incentive, the court imposed a geometric sanction of $50,000, doubling each day the company failed to comply. Which it did, for another four days, netting itself $350,000 in fines.

The company appealed, alleging that Judge Howell had abused her discretion by forcing compliance with the warrant while the non-disclosure appeal was still pending, imposing sanctions, and abridging its First Amendment rights. But Twitter got no more joy with the appellate panel, consisting of Judges Pillard, Childs, and Pan, than it had with the trial judge.

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In sum, we affirm the district court’s rulings in all respects. The district court properly rejected Twitter’ s First Amendment challenge to the nondisclosure order. Moreover, the district court acted within the bounds of its discretion to manage its docket when it declined to stay its enforcement of the warrant while the First Amendment claim was litigated. Finally, the district court followed the appropriate procedures before finding Twitter in contempt of court – including giving Twitter an opportunity to be heard and a chance to purge its contempt to avoid sanctions.

Apparently, the First Amendment still exists, but it does not allow social media companies to tip off the subject of a search warrant that the government is looking at his records if the government proves to the satisfaction of a federal judge that he’s pretty likely to destroy them if notified.

Incidentally, on June 30, the DOJ filed an ex parte motion notifying the trial judge that it was withdrawing the non-disclosure order, allowing Twitter to tell Trump about the warrant. So presumably, he learned about it weeks ago — although considering his attention span and the state of Twitter these days, who knows?

DARK DAYS IN AMERICA!

Elizabeth Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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