WASHINGTON — Special Counsel Jack Smith’s office obtained a search warrant for the contents of former President Donald Trump’s Twitter account in January, according to a D.C. Circuit Court of Appeals opinion unsealed Wednesday upholding that warrant and a $350,000 fine for Twitter failing to comply by a court-mandated deadline.
In a unanimous opinion on July 18, a panel made up of Judges Cornelia Pillard, Michelle Childs and Florence Y. Pan upheld former D.C. District Court Chief Judge Beryl A. Howell’s decision to grant a search warrant for the former president’s Twitter account as well as a non-disclosure order preventing Twitter from notifying Trump. Since Jan. 17, when that warrant was obtained, Twitter has been rebranded as “X Corp.” by new owner Elon Musk.
The warrant sought data and records relating to the “@realDonaldTrump” account on which Trump had amassed more than 88 million followers until it was permanently suspended on Jan. 8, 2021, in the wake of the attack on the U.S. Capitol. Musk restored Trump’s account in November 2022 roughly a month after completing his purchase of the website. Since being restored, however, Trump has not used the account – choosing instead to post on his own social media service, Truth Social.
According to the opinion, written by Pan, federal prosecutors initially had trouble serving Twitter with the warrant and disclosure order in part because the website was at one point inoperative. On Feb. 1, four days after the compliance deadline had passed, Twitter informed prosecutors it would be objecting to producing any of the account information on the grounds that the nondisclosure order violated its First Amendment rights to communicate with Trump.
Six days later, Howell – who oversaw the federal grand jury investigating Jan. 6 and efforts to overturn the 2020 election until her term as chief judge ended in March – ruled against Twitter and held it in contempt of court. She imposed a sanction of $50,000 per day, to double each day of non-compliance, until Twitter turned over the records. She allowed Twitter a grace period to purge its contempt by turning over the records by 5 p.m. on Feb. 7, which Twitter’s attorneys said they were prepared to do.
According to the circuit court panel, Twitter did not turn over the complete records for another three days, however, and Howell then imposed a fine of $350,000, which Twitter paid sometime after March 3.
The government later sought, and was granted, an amendment to the protective order allowing Twitter to inform Trump it had turned over records from his account but preventing it from informing him of the name of the FBI case agent assigned to the investigation.
The warrant, non-disclosure order, fine and Twitter’s appeal of all three were sealed and not previously known until Wednesday, when the D.C. Circuit Court unsealed the panel's opinion following last week's indictment of the former president. In the opinion, the panel wrote that it found Twitter’s arguments “unpersuasive”
“The court found that Twitter repeatedly represented to the court that it stood ready to comply, even as Twitter waited until after the February 7 deadline ‘to raise, for the first time, multiple questions about the [w]arrant’s document demands,” the panel wrote. “Under those circumstances, the district court was on firm footing when it ruled that Twitter had not substantially and in good faith complied with the warrant.”
On Aug. 1, the grand jury indicted Trump on four felony counts alleging he conspired to defraud the United States and obstruct the joint session of Congress on Jan. 6, 2021, in an effort to remain in power after losing the 2020 election. The indictment includes multiple references to tweets made by Trump on Jan. 6, including a tweet sent at 2:24 p.m. they say was intended to “further delay and obstruct the certification.” In the tweet, sent a little less than an hour and a half after then Vice President Mike Pence publicly announced he would not reject legitimate electoral votes, Trump wrote, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
Even before his indictment, the Justice Department had used Trump’s tweets in prosecutions of other Jan. 6 defendants. In October, prosecutors presented evidence that members of the Oath Keepers militia were “ecstatic” when Trump invited supporters to come to D.C. on Jan. 6, promising it “will be wild!”
“He wants us to make it WILD,” Kelly Meggs, an Oath Keepers leader who was convicted of seditious conspiracy, wrote in a message to other group members. “He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!!”