The Twitter/X Search Warrant

¶Mr. Trump's public statements-and specifically, his posts on the social media application Twitter-constituted important potential evidence of his criminal conduct and intent. Accordingly, on January 17, 2023, the Office applied for, and the district court authorized, a search warrant requiring Twitter to provide certain information regarding Mr. Trump's Twitter account. In re Twitter Search Warrant, No. 23-sc-31, ECF No. 32 at 1-2 & n. l,⁵⁵ ECF No. l at 1 8; ECF No. 226 at 19; see ECF No. 252 at 4. WSJ Editorial Board, Jack Smith Loses in the People's Court, WSJ (Nov. 7, 2024, 5:52 PM), https://vvww.wsj.com/opinion/donald-trump-prosecutions-jack-smith-fani-willis-alvin-bragg-juan merchan-lc68f640; Jonathan Turley, Opinion: Donald Trump just won the greatest jury verdict in American history, The Hill (Nov. 6, 2024, 10:56 AM), https://thehill.com/opinion/campaign/4976533- trump-prosecutions-lawfare-end; Elie Honig, So What Happens With All the Cases Against Trump Now?, N.Y. Mag. (Nov. 8, 2024), https://nymag.com/intelligencer/aiiicle/what-will-happen-with-the-charges against-trump.html. (D.D.C. Mar. 3, 2023) (Twitter Decision). At the same time, as is common in non-public criminal investigations to prevent individuals under investigation from destroying evidence or otherwise hampering the process, the Office asked the district court to issue a non-disclosure order (NDO), which would direct Twitter that it could not inform Mr. Trump that the Office was seeking information regarding his account. Id. at 6. The district court granted the request and issued the NDO. Id.

¶The search warrant required Twitter's compliance within ten days of its issuance, but the day before that deadline, its Senior Director of Legal informed the Office that "it would not comply with the Warrant by the next day." Id. at 7-9. Shortly thereafter, Twitter's Senior Director of Legal further informed the Office that it would not comply with the warrant "without changes to the NDO" permitting Twitter to notify Mr. Trump of the warrant. Id. at 9. Twitter claimed that the NDO impinged on its First Amendment interests in communicating with the former President, which, according to Twitter, were heightened because the warrant purportedly could implicate issues of executive privilege though it conceded that it had no standing to raise any privilege issues. Id. at 24. The district court later described Twitter's actions as "extraordinary" and noted that its resistance to the NDO appeared to be a first in the company's history. Id. at 1 ("For what appears to be the first time in their nearly seventeen-year existence as a company . . . [Twitter] seeks to vacate or modify an order, issued under the Stored Communications Act . . . commanding that the company not disclose the existence of a search warrant for a user's Twitter account, and further seeks to condition any compliance by the company with that search warrant on the user (or user's representatives) first being notified about the warrant and given an opportunity to stop or otherwise intervene in execution of the warrant.").

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¶The Office promptly moved in district court to have Twitter show cause why it should not be held in contempt of court, asking the district court to impose a penalty that doubled with each day of non-compliance, starting at $50,000. Id. at 9, 12. In rejecting Twitter's basis for refusing to comply with the warrant, the district court emphasized that the search warrant and NDO had been "issued by this Court after being apprised of extensive reasons sufficient to establish probable cause for issuance of the warrant and to meet the statutory requirements for an NDO, to which reasons Twitter is neither privy nor entitled to be privy." Id. at 2. The district court rejected Twitter's contentions, finding that there existed compelling government interests to maintain the NDO to preserve the integrity of the investigation, id. at 17-26, and that as a practical matter, "[i]f accepted, Twitter's argument would invite repeated litigation by Twitter and other [electronic communication services] providers to challenge NDOs in order to alert users to [Stored Communications Act] orders, particularly for high profile, highly placed users, such as current or former government officials, with whom the providers might want to curry favor, with concomitant and inevitable delays in execution of [Stored Communications Act] orders and resultant frustration in expeditiously conducting criminal investigations," id. at 11.

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¶The district court ultimately held that the NDO lawfully prohibited Twitter from notifying Mr. Trump about the warrant and fined Twitter $350,000 for failing to comply with the court ordered search warrant in a timely fashion, finding that Twitter failed to show good faith and substantial compliance in response to the warrant. Id. at 30-34. The sanction and NDO were both upheld by the D.C. Circuit, and the Supreme Court declined to review the case. In re Sealed Case,⁷⁷⁷⁷ SCO-12264603 at 49, 152-153 (SJC Tr.); SCO-04957448 at 48-52 (SJC Tr.); SCO-11542142 at 97- 100 (Int. Tr.). F.4th 815, 830 (D.C. Cir. 2023), cert. denied sub nom. X Corp. v. United States, 2024 WL 4426628 (U.S. Oct. 7, 2024) (upholding NDO where the order was narrowly tailored and "the district court specifically found reason to believe that disclosure of the warrant would jeopardize the criminal investigation"); id. at 836 (holding that the "sanction ultimately imposed was not unreasonable, given Twitter's $40-billion valuation and the court's goal of coercing Twitter's compliance").